McCallum-Toppin & Anor v McCallum-Toppin & Ors

For the purposes of Companies Act 2006, shares transmitted to personal representatives by operation of law may confer standing under section 994(2). An order replacing a personal representative ordinarily vests the deceased’s estate in the incoming and continuing representatives, unless the order provides otherwise.

Appointment as a new trustee does not itself transfer trust property. The statutory vesting mechanism in section 40 of the Trustee Act 1925 does not apply to shares transferable only in a company’s books. A procedural defect arising because fewer than all joint owners sue is an irregularity, not a nullity, and may be remedied under the Civil Procedure Rules 1998. A very late amendment remains discretionary, with the court balancing prejudice, explanation, procedural compliance and the interests of other court users.

The petitioners sought relief under section 994 of the Companies Act 2006 concerning alleged unfair prejudice in the affairs of AMT Coffee Limited. They sought an order for the purchase of their shares.

The application was made at the outset of trial to re-re-amend the petition after the second petitioner had been appointed personal representative of the estate of Angus McCallum-Toppin. The principal issues were whether the petitioners had standing, whether the shares had vested in them, whether the claim was properly constituted where not all personal representatives had been joined, and whether the late amendment should be permitted.

1. Standing and vesting on replacement of a personal representative. Angus had been a member of the company. After his death, his shares were transmitted by operation of law to his executors, who therefore fell within section 994(2) of the Companies Act 2006. An order under section 50(1)(a) of the Administration of Justice Act 1985 replacing a personal representative also vested the deceased’s estate in the incoming and continuing representatives, and divested the former representative, unless the order provided otherwise. That conclusion was necessary to enable the administration of the estate to continue.
2. Trusteeship and company shares. The deed appointing the second petitioner as trustee did not itself vest the estate in her. The automatic vesting provision in section 40(1)(b) of the Trustee Act 1925 was unavailable because section 40(4)(c) excluded shares transferable only in books kept by a company. The decisions in Re Ponder [1921] 2 Ch 59 and Re Cockburn [1957] Ch 438 concerned fully administered estates and gifts of residue. They did not establish that the present specific gifts had vested in the newly appointed trustee.
3. Joinder and procedural irregularity. Under CPR rule 19.3, persons jointly entitled to a remedy should be parties, but a failure to join all joint owners does not invalidate the proceedings unless the court so orders. CPR rule 3.10 permits the court to remedy such an error. The petition was therefore capable of being regularised after the order appointing the second petitioner as personal representative.
4. Late amendment. Applying the principles summarised in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), the court balanced the lateness of the application against the limited prejudice. The amendment did not alter the factual allegations, did not require an adjournment, and the disclosure concern relating to the former personal representative had been addressed by an undertaking and limited additional disclosure. Permission to re-re-amend the petition was granted.