New Zealand: unfair prejudice, summary judgment and the buy-out offer

Earlier this month the Court of Appeal gave judgment in Birchfield v Birchfield Holdings Limited [2021] NZCA 428. The decision is an important one - and therefore noted here - because of the guidance provided in respect of the relevance of a buy-out offer in the context of a claim for unfair prejudice under section 174 of the Companies Act 1993. The decision provides, moreover, an illustration of the enduring influence of the English decision O'Neill v Phillips [1999] 1 WLR 1092, in which Lord Hoffmann said that unfairness "does not lie in ... exclusion alone but in exclusion without a reasonable offer".