Landlord and tenant — Lease — Escrow conditions — Doctrine of relation back — Whether tenant bound by lease from date of delivery of lease in escrow — Whether escrow conditions fulfilled at later date
In 1989, the appellant and the second and third respondents formed a company, P Ltd, in which they each held shares, to run a residential care home from a property that was owned by the third respondent. However, the business ran into difficulties. On 25 October 1991, the second and third respondents agreed with the appellant to grant P Ltd a 21-year lease of the property at an initial rent of £66,000 pa and to give up their interests in the company. The second respondent wanted a rent that would be high enough to cover the value of the property and the earnings that they would be giving up. On the same day, the second and third respondents executed a lease in escrow. This and other documents were sent to the appellant’s solicitor to be held until the second and third respondents’ solicitor had given consent for their release. On 5 November, the appellant acquired the second and third respondents’ shares in P Ltd. P Ltd executed the counterpart lease at some point after 5 November. P Ltd later went into a creditors’ voluntary winding up, and the second and third respondents lodged proof of substantial sums of rent arrears. In January 1998, they sold the property, and the lease came to an end. In December 2001, the first respondent liquidator obtained an order requiring the appellant to contribute to the assets of P Ltd an amount sufficient with the other assets to discharge its debts. In an attempt to reduce her liabilities, the appellant brought proceedings, contending that: (i) since the rents payable under the lease were excessive, they represented a disguised way of compensating the second and third respondents for their shares; and (ii) because section 151 of the Companies Act 1985 precludes a company from providing assistance for the purpose of acquiring its own shares, the lease was therefore void and unenforceable.
Hart J decided that the property’s open market rental value was £37,000 pa. He then concluded that because P Ltd had not been liable under the lease as at 5 November (the date of the appellant’s acquisition of the shares), section 151(1) did not apply. Moreover, although P Ltd’s entering into the lease may have been connected with the acquisition of the shares, it had not been “for the purpose” of that acquisition within the meaning of section 151(2). The appellant appealed, contending that since the lease had been executed by the second and third respondents and delivered in escrow, when the condition of the escrow was fulfilled and the lease ceased to be in escrow, the doctrine of relation back caused the title as between the second and third respondents and P Ltd, as tenant, to have passed as at the date of the original delivery of the lease in escrow, section 151(1) applied. She also argued that, on the facts, section 151(2) applied.
Held: The appeal was dismissed. It was wrong in principle that an intended party to a lease should be treated as being bound before it has committed itself to the lease merely because the other party had delivered the lease in escrow and that the escrow conditions were subsequently satisfied: section 151(1) did therefore not apply. The lease had been entered into for the purpose of obtaining the premises, and not for the purpose of the share acquisition: thus, section 151(2) did not apply.
The following cases are referred to in this report.
Alan Estates Ltd v WG Stores Ltd [1982] Ch 511; [1981] 3 WLR 892; [1981] 3 All ER 481; (1981) 43 P&CR 192; [1981] 2 EGLR 50; 260 EG 173, CA
Dyment v Boyden [2004] EWHC 350 (Ch)
This was an appeal by the appellant, Audrey Dyment, from a decision of Hart J, sitting in Cardiff District Registry (Chancery Division), dismissing her application for relief under the Companies Act 1985 against the first respondent liquidator, Patrick Boyden, and the second and third respondents, Evan Bishop and Paul Bishop.
Robert Hantusch (instructed by Hunt & Morgan, of Cardiff) appeared for the appellant; David Chivers QC and Jeremy Bamford (instructed by Roy Thomas, Begley & Co, of Swansea) represented the respondents.
Giving the first judgment,
[1] This appeal on the applicability of section 151 of the Companies Act 1985 is brought in most unusual circumstances. Usually, when section 151 is claimed to be applicable, it is not so claimed by a person who was a director of the company at the time when it is alleged to have given financial assistance for the acquisition of its own shares. Where such a company acts in contravention of the section, it does so unlawfully, and both it and any of its officers who are in default are liable to a penal sanction under section 151(3). However, that is what is claimed by the applicant, Mrs Audrey Dyment. She claims that Pathways Residential & Training Centres Ltd (the company) did this at a time when she was one of its directors and its controlling mind. She has been trying, for some time, to escape from the consequences of the rental obligations of the company as the tenant under a lease of premises of which the second respondent, Mr Evan Bishop, and his son, the third respondent, Mr Paul Bishop (together, the Bishops) are landlords. Mrs Dyment’s originating application, by which she sought various orders and directions under the Insolvency Act 1986 and the Insolvency Rules 1986, challenging proofs of debt lodged by the Bishops in the insolvent liquidation of the company, was, as her counsel, Mr Robert Hantusch, frankly acknowledged, her last throw of the dice. But, as he rightly pointed out, if section 151 had been contravened, she would be entitled to relief, and that would be so whatever this court may think of the merits.
[2] This is an appeal by Mrs Dyment from the order made by Hart J ([2004] EWHC 350 (Ch)) on 27 February 2004 after a three-day trial. Thereby, the judge dismissed her originating application. The judge considered only section 151(1) and (2) and did not consider, and expressed no views on, a number of other points that would arise if section 151 did apply. On this appeal, in the event, this court has not had to go beyond what the judge decided in his judgment.
Facts
[3] Mrs Dyment is a state-registered nurse and a registered nurse for the mentally handicapped. When working as a placement officer in the social services department of West Glamorgan County Council (the council), she met the Bishops, who were seeking local authority approval for a care home to be operated by them at Brynmill House, Swansea. They decided to go into business together as partners to provide residential care to people with learning difficulties and behavioural problems. A suitable property for the venture, The Mount, in Gowerton, which Paul Bishop had purchased in his own name, was available. This was treated by the Bishops and Mrs Dyment as belonging to the three of them in equal shares.
[4] The business was operated through the company, 34 shares in which were held by each of the Bishops and 33 by Mrs Dyment. The |page:20| three of them were the directors of the company. By March 1989, they had incurred substantial liabilities to Midland Bank in connection with effecting the necessary improvements to The Mount. Those liabilities were secured by charges over The Mount and over the houses owned by each of the Bishops and Mrs Dyment and their respective spouses. No formal arrangements had been made for the company to pay rent, but, in practice, it paid £3,350 per month into the partnership’s account with Midland Bank.
[5] In March 1989, the first client went into residence at The Mount. However, in December 1989, Evan Bishop was charged with assault on one of the residents of Brynmill House. As a consequence, the council indicated that they proposed to take steps to cancel the company’s registration under the Registered Homes Act 1984. Later, it emerged that the council were also contemplating deregistration on the ground that each of the Bishops had failed to disclose previous spent convictions. The council cancelled the registration in April 1990, but Mrs Dyment and the Bishops appealed, and although the appeal was pending, the business was able to continue.
[6] All the parties appreciated that unless an effective way could be found to separate the Bishops from the business, permanent deregistration would be inevitable. The solution at which the parties arrived, with the help of their accountant, Mr Rhydian Harris FCA, was that the Bishops would give up their interests as shareholders and directors of the company, that Mrs Dyment would give up her interest in The Mount, and that the Bishops would grant the company a 21-year lease. Mr Harris suggested that a valuation of the current rental value of The Mount should be obtained, but that was rejected by Evan Bishop by a letter dated 11 June 1991 addressed to Mr Harris. Evan Bishop said:
The rental would have to show not only the valuation of the property but to consider the loss of earnings that would have been enjoyed.
Evan Bishop subsequently indicated that the rent would have to be £5,500 per month with upward-only rent reviews. This was never the subject of negotiation.
[7] By 12 June 1991, the council had indicated to Mrs Dyment’s solicitor that they approved the registration of Mrs Dyment in her sole name to operate the business at The Mount. There appears to have been no necessity that the company should continue to be involved in operating the business. It had no lease or licence and Mr Harris gave evidence to the judge that its shares were effectively worthless. However, the parties proceeded on the footing that the company would continue to operate the business as it had been doing.
[8] Heads of agreement, referring to an annexed lease, were agreed and signed on or around 25 October 1991 by Mrs Dyment and the Bishops. The company was not a party. By clauses 1 and 2, the Bishops gave up their interests in the business conducted at The Mount. By clause 3, Mrs Dyment surrendered and released her interest in The Mount. Clause 4 provided that the Bishops would forthwith grant a lease of The Mount for 21 years to the company, in accordance with the annexed lease. The lease, whereunder the Bishops were the landlords and the company the tenant, provided for a term of 21 years, from 25 June 1997, at a rent of £66,000 pa with upward-only rent reviews. Clause 7 of the heads of agreement contained an acknowledgement by each of the Bishops and Mrs Dyment that:
the said agreement is conditional upon approval and acceptance by [the council] and that such agreement is null and void if such approval is not granted PROVIDED THAT Mrs Dyment shall have used her best endeavours to appeal against any refusal of approval.
By clauses 8 and 9, the Bishops were forthwith to sign forms of resignation as directors of the company and irrevocable stock transfer forms in respect of their shareholdings. By clause 10, the Bishops were forthwith to secure the unconditional release of Mr and Mrs Dyment’s home from the Midland Bank charge.
[9] The Bishops executed the lease in escrow and it was delivered to Mrs Dyment’s solicitor, accompanied by a letter dated 25 October 1991 from the Bishops’ solicitor, against an undertaking by Mrs Dyment’s solicitor to hold the heads of agreement and the lease until it had received the written consent of the Bishops’ solicitor that those documents might be released. The Bishops’ solicitor also sent with that letter the counterpart lease for sealing by the company. Thus, on 25 October 1991, the company had not yet sealed the counterpart lease, and there had been no exchange of it and of the lease with the Bishops. Mr Dyment became the company secretary at some point after 5 November 1991. On that day, there was a board meeting of the company at which the Bishops resigned and executed transfers of their shares. The minutes of the meeting make no reference to the lease. The judge found that Mrs Dyment had acquired the Bishops’ shares in the company on 5 November 1991 and that the company had not, at that time, executed the lease. At some time after 5 November and before 19 November 1991, the counterpart lease was executed by the company. That is not challenged on this appeal.
[10] On 21 November 1991, the council approved Mrs Dyment’s application for registration with the result that her appeal against deregistration was allowed the next day. However, the Bishops were unable to secure the release of Mr and Mrs Dyment’s home from the Midland Bank charge because of the refusal by Paul Bishop’s wife to co-operate. Mrs Dyment took the view that rent under the lease consequently continued to be payable only at the rate at which it had previously been paid, namely £3,350 per month, and the company did not pay the full rent provided for in the lease.
[11] On 17 February 1995, the Bishops issued proceedings (the rent action) for recovery of the arrears of rent. In December 1995, the residents of The Mount were transferred to another property that Mr and Mrs Dyment had acquired. Mr and Mrs Dyment formed a new company, Pathways (Trebanos) Ltd (NewCo), which took over the company’s business for no consideration. Four days before the hearing of an application by the Bishops for summary judgment in the rent action, Mrs Dyment placed the company into creditors’ voluntary winding up. On 12 January 1996, the Bishops obtained judgment against the company in the rent action for £140,017.63. Although represented by counsel, the company did not suggest that section 151 applied to defeat the Bishops’ claim. There was no appeal.
[12] The liquidator of the company recovered from NewCo £100,000 to compensate the company for the wrongful transfer of the business.
[13] The Bishops, on 4 March 1996, lodged a proof of debt for £140,017.63 in the liquidation of the company. The liquidator accepted this.
[14] On 5 January 1998, the Bishops sold The Mount. The Midland Bank charge on Mr and Mrs Dyment’s home was released. The lease came to an end. On 3 April 2000, the Bishops lodged a further proof in respect of the rent due under the lease from the commencement of the liquidation of the company to the date of The Mount’s sale.
[15] In January 2001, the liquidator commenced proceedings against Mrs Dyment for misfeasance and fraudulent breach of duty in extracting £398,000 by way of dividends from the company between March 1994 and November 1995. Mrs Dyment initially disputed the claims, but later admitted liability for misfeasance, and, on 7 December 2001, was ordered to contribute to the assets of the company an amount sufficient with the other assets of the company to discharge all the debts of the company.
Proceedings
[16] On 2 December 2001, Mrs Dyment commenced the proceedings with which this appeal is concerned. She seeks an order expunging the Bishops’ first proof of debt, or alternatively an order reversing the admission by the liquidator (the first respondent) of that proof, although she is long out of time for this. She also seeks an order that the liquidator should reject the further proof of debt of the Bishops. Although these orders are sought on behalf of the creditors of the company, in reality, she seeks to reduce her liability under the order of 7 December 2001.
[17] Before I set out the basis of Mrs Dyment’s claim, it is convenient to refer to the relevant statutory provisions upon which she relies. Section 151 provides, so far as material: |page:21|
151 Financial assistance generally prohibited.
(1) Subject to the following provisions of this Chapter, where a person is acquiring or is proposing to acquire shares in a company, it is not lawful for the company or any of its subsidiaries to give financial assistance directly or indirectly for the purpose of that acquisition before or at the same time as the acquisition takes place.
(2) Subject to those provisions, where a person has acquired shares in a company and any liability has been incurred (by that or any other person), for the purpose of that acquisition, it is not lawful for the company or any of its subsidiaries to give financial assistance directly or indirectly for the purpose of reducing or discharging the liability so incurred.
Section 152(1)(a)(iv) defines “financial assistance” as meaning:
any other financial assistance given by a company the net assets of which are thereby reduced to a material extent or which has no net assets.
[18] The basis of Mrs Dyment’s claim was pleaded as follows:
11. The rent payable under the lease was in substantially excess [sic] of what would have been an open market commercial rent for the Mount. By entering into the lease and agreeing to pay the rent thereunder the net assets of the Company were reduced to a material extent.
12. The excessive rent payable under the lease was at all times intended by both the [Bishops] and by [Mrs Dyment] to provide payment to the [Bishops] for the value of their shareholding in the Company.
13. In the premises the Heads of Agreement and the lease contravened section 151… and all the obligations assumed by the Company under the lease and the rent payable thereunder constituted unlawful financial assistance. The lease was accordingly at all times wholly void and unenforceable and no rent was or is ever properly payable or recoverable thereunder.
[19] In answer to a request for further information on Mrs Dyment’s pleading as to the intention averred in para 12 of her particulars of claim, it was stated that Mrs Dyment had recognised that the increased rent to be paid under the lease was to compensate the Bishops for having given up their shareholdings in the company in return for her share in The Mount, but she had felt that she had no option but to accept such terms, since any failure to agree would have led to the cessation of the business. The answer to a request for information in so far as reliance was placed upon section 151(2) was “not applicable”.
[20] At the trial, the judge had written and oral evidence from Mrs Dyment, Mr Harris and the Bishops and a joint report from the expert on each side. The experts agreed that the open market rental value of The Mount was £37,000 pa, that is, £29,000 pa less than the rent reserved under the lease. It was accepted before the judge by the Bishops that the consequence of that was to reduce the net assets of the company to a material extent. For Mrs Dyment, it was argued that the company had given financial assistance in relation to a transaction that involved the acquisition by her of the Bishops’ shares in the company and that the assistance had been given “directly or indirectly for the purposes of that acquisition”.
[21] The judge held that at the date of Mrs Dyment’s acquisition of the Bishops’ shares, viz 5 November 1991, the company had not become liable, conditionally or otherwise, under the lease and had not been bound by any legal obligation to enter into it. It followed, he said, that Mrs Dyment’s case under section 151(1) must fail.
[22] The judge then turned to section 151(2), upon which he allowed Mr Hantusch to advance an alternative argument. That was generous to Mrs Dyment, in view of the expressly pleaded disavowal of any reliance upon that subsection; nor, it appears, was there any attempt to explore any factual matters relevant to section 151(2) in the oral evidence. Mr Hantusch pointed out that in the skeleton argument of Mr Jeremy Bamford, then appearing alone for the Bishops at the trial, there is a single sentence that, because the lease had been entered into after 5 November 1991, “presumably Mrs Dyment’s case in fact relies upon section 151(2)…”, and that may have been the reason why the judge allowed the alternative argument. That argument proceeded on the footing that it was an implied term of the heads of agreement that Mrs Dyment should procure that the company entered into the lease, that that liability had been incurred for the purpose of Mrs Dyment’s acquisition of the shares, and that the company, by subsequently entering into the lease, had discharged her liability. The judge said that if it could be shown that Mrs Dyment had undertaken that obligation for the purpose of acquiring the shares, the claim that there had been an infringement of section 151(2) would be, in principle, a good one.
[23] However, the judge said that he had not been persuaded that, as a matter of commercial reality, it could properly be said that the obligation to procure the company’s acceptance of the lease had been undertaken for that purpose, since it was contradicted both by the history of the parties’ negotiations, by the form that the legal documentation took, and by their accounts of their subjective intentions. The judge then went through those matters, including the evidence that Evan Bishop’s demand for a rent of £5,500 per month was presented to Mrs Dyment on a take-it-or-leave-it basis, that she perceived herself as having no commercial alternative but to agree, and that entry into the lease was for the purpose of obtaining The Mount for the company and was not linked to her acquisition of the shares.
[24] The judge expressed his conclusion in this way:
34. The fact that Evan Bishop’s letter of 11th June 1991 had referred to the rent as being compensation for loss of earnings he would otherwise have enjoyed was, naturally, relied on by Mr Hantusch as showing a link between the amount of the rent and the fact that the Bishops were giving up their shares. However, in my judgment, this overlooks the fact that the Bishops giving up their shares was a premise of the negotiation and not one of the elements over which there was, or could be, any negotiation. This was simply the effect of the requirements of the [Council] if the company was to continue to operate the business. To put the point in a different way, if the Bishops had at the outset transferred their shares at par, their ability to drive the hard bargain which they eventually did over the lease would not have been one whit impaired. It was their ownership of a 2/3 interest in the Mount, the company’s need to take a 21-year lease if it was to continue in business, and the Dyments’ desire to keep that business going which gave the Bishops the negotiating position which they exploited. Accordingly I have come to the conclusion that, while the company’s entering into the lease can be said to have been “in connection with” (in the words of the old section 54 [of the Companies Act 1948]) the acquisition of the shares, it cannot fairly be said to have been “for the purpose” of that acquisition. It entered into the lease in order to obtain the premises, and agreed to pay what is now known to be an excessive rent because the owners of the freehold were in a position to exact that ransom.
Appeal
Section 151(1)
[25] Before this court, Mr Hantusch submitted that the judge had erred in dismissing the claim under section 151(1) because, at the date of Mrs Dyment’s acquisition of the Bishops’ shares, the company was to be treated as having become liable under the lease. He argued that since the lease had been executed by the Bishops and delivered by them in escrow, when the condition of the escrow was fulfilled and the lease ceased to be in escrow, the doctrine of relation back caused the title as between the Bishops, as landlords, and the company, as tenant, to have passed as at the date of the original delivery of the lease in escrow.
[26] That is a bold submission, particularly in the context of the applicability of a penal provision in a statute. If Mr Hantusch is right, where a lease and a counterpart are prepared for execution and exchange by the landlord and the tenant respectively, and the landlord executes the lease and delivers it in escrow but the tenant does not execute the counterpart until later, and the condition of the escrow is then fulfilled and the lease and counterpart exchanged, the tenant is treated as being bound as and from the time of the landlord’s delivery in escrow, even though the tenant has done nothing to commit itself at that time. If Mr Hantusch is right and the entry by a corporate tenant into the lease by subsequent execution of the counterpart and its exchange constitutes a contravention of section 152(1), the tenant will be treated as having committed an unlawful act even before it has done anything to become bound; that is said to be because of the unilateral action of the landlord in delivering the lease in escrow followed by the fulfilment of the escrow condition.
[27] At the hearing of the appeal, Mr Hantusch took us to no authority on the point, but in his skeleton argument he referred us to para 38 of Halsbury’s Laws (4th ed) vol 14, 2000 reissue, and |page:22| Alan Estates v WG Stores [1982] Ch 511*. Neither assists upon the question as to whether the doctrine of relation back applies to a party other than the party that delivers the deed in escrow. In Alan Estates, an undated lease and counterpart were executed and exchanged in escrow and, when the conditions of the escrow were fulfilled, this court held that the date of the lease was the date of the delivery in escrow.
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* Editor’s note: Also reported at [1981] 2 EGLR 50
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[28] In my judgment, it is, in principle, wrong that an intended party to a lease should be treated as being bound at a time before it has committed itself to the lease merely because the other party has delivered the lease in escrow and the escrow conditions are subsequently satisfied. That is all the clearer in a case such as the present, where the other party has prepared a counterpart lease for execution and exchange and where penal consequences would otherwise follow. Mrs Dyment has failed to show that any financial assistance had been given by the company before or at the same time as the acquisition of the Bishops’ shares. I would therefore reject this ground of appeal.
Section 151(2)
[29] Mr Hantusch submitted that the judge had been wrong to confirm that he was not satisfied that the implied obligation to procure the company’s acceptance of the lease had been undertaken for the purpose of acquiring the Bishops’ shares, because the judge had found that the giving up by the Bishops of their shares was a premise of the negotiation. Mr Hantusch contended that there was a preordained scheme that included the transfer by the Bishops of their shares. His principal submission was that the purpose of the Bishops, as indicated in Evan Bishop’s letter of 11 June 1991, was to obtain compensation via the rent from the lease for the loss of the earnings that they would otherwise have obtained from the business, and that the Bishops’ purpose must be deemed to be the purpose of Mrs Dyment and the company because they had no choice other than to accept the lease with its provisions for an excessive rent.
[30] Mr David Chivers QC, for the Bishops, accepted before us that an obligation on the part of Mrs Dyment to procure the entry by the company into the lease was to be implied in the heads of agreement. He pointed out that section 151(2) requires the court to focus on two purposes. One is the purpose of the acquisition of shares, a relevant liability having to be incurred for that purpose. In this case he said, and Mr Hantusch agreed, that the liability is the obligation to procure the company’s entry into the lease, and that it must be shown that Mrs Dyment incurred that liability for the purpose of acquiring the Bishops’ shares. The other, he said, and Mr Hantusch agreed, is the purpose of reducing or discharging that liability, and it must be shown that the company gave financial assistance directly, or indirectly, for that purpose.
[31] Mr Chivers submitted that there was no inconsistency between the judge’s finding on the premise of the negotiation and his conclusion that the obligation undertaken by Mrs Dyment was not for the purpose of acquiring the Bishops’ shares. I agree. The judge was rejecting Mr Hantusch’s suggestion that the letter of 11 June 1991 showed a relevant link between the rent payable under the lease and the Bishops giving up their shares. The judge was pointing out, in [34] of his judgment, that the transfer of shares by the Bishops so that they no longer had an interest in the company, if it was to continue to operate the business, was a requirement of the council, which everyone accepted had to be met. For the reasons given by the judge, the rent insisted upon by the Bishops was not linked to the acquisition of the shares.
[32] Further, the evidence given by Mrs Dyment in cross-examination amply supported the judge’s findings that she felt that she had no commercial alternative to Evan Bishop’s hard-nosed proposal as to rent, and that her purpose in incurring the obligation to procure the company’s entry into the lease was to obtain The Mount so that the company could continue in business. Her oral evidence was wholly inconsistent with the pleaded intention that the rent payable under the lease was to provide payment to the Bishops for the value of their shares. She accepted that there was no link between the rent and the shares, as is apparent from these exchanges:
Q. But you weren’t linking rent and the figure that was being put forward for rent with anything to do with shares. Your simple concern was, “from the Company’s point of view and your point of view, can we afford to pay this rent?”
A. That’s right.
Q. So there was no link, so far as you could see, between that and the shares.
A. No.
[33] Mrs Dyment’s intention was the company’s intention: it could not have acted for a purpose that she did not intend.
[34] Mr Hantusch was right to accept that Mrs Dyment cannot succeed unless he was correct in saying that the purpose of Mr Evan Bishop, as taken from the letter of 11 June 1991, is to be deemed to be Mrs Dyment’s and the company’s purpose because they had no alternative other than to accede to his rental demands. However, I do not understand how, as a matter of law or fact, the Bishops’ purpose should be taken to be the purpose of Mrs Dyment or the company. When she undertook the obligation of procuring the company’s entry into the lease, and when the company discharged that obligation by entering into the lease, she and it had the obvious purpose of acquiring The Mount to keep the business going. The particular reasons why Evan Bishop wanted the amount of the rent that he demanded cannot be translated into the purpose of Mrs Dyment and the company. There is no evidence that Mrs Dyment ever saw the letter of 11 June 1991 that was addressed to Mr Harris. Mr Hantusch accepted that his submissions would be the same whether she knew of the thinking of Evan Bishop. In the light of her evidence as to her purpose, it is impossible to infer that the Bishops’ purpose was her or the company’s purpose.
[35] The judge, in my view, had been entirely justified in saying, in [34] of the judgment, that the company’s entry into the lease was “in connection with” the acquisition by Mrs Dyment of the Bishops’ shares but was not “for the purpose of” that acquisition. In my judgment, his conclusion that the entry into the lease was for the purpose of obtaining the premises and not for the purpose of the share acquisition is a finding of fact with which this court cannot interfere. I would therefore reject the appeal based upon section 151(2).
Conclusion
[36] This appeal must be dismissed.
[37] I agree.
[38] I also agree.
Appeal dismissed.
