Julie Dawn Rhodes v Christine Elizabeth Fletcher & Quasar Professionals ACT Pty Ltd

[2000] NSWSC 797

CITATION:	Julie Dawn Rhodes v Christine Elizabeth Fletcher & Quasar Professionals ACT Pty Ltd [2000] NSWSC 797 revised - 17/08/2000
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 5117/1999
HEARING DATE(S):	27 July 2000 and 2 August 2000
JUDGMENT DATE:	11 August 2000
PARTIES :	Julie Dawn Rhodes (Plaintiff) Christine Elizabeth Fletcher (First Defendant) Quasar Professionals ACT Pty Limited (Second Defendant)
JUDGMENT OF:	Bergin J

COUNSEL :	N Cotman SC (Plaintiff) R Harper/J Gillespie (Defendants)
SOLICITORS:	Brown & Partners (Plaintiff) Chamberlains Law Firm (Defendants)
CATCHWORDS:	Application to remit referred matter to Referee pursuant to Part 72 Rule 13 of the Supreme Court Rules for further consideration and report on basis of failure to afford natural justice.
LEGISLATION CITED:	Supreme Court Rules; Parts 39 and 72
CASES CITED:	Xuereb & Anor v Viola & Ors (1989) NSWLR 453 Ceccattini v ICM 2000 Pty Ltd [1999] NSWSC 453 (Santow J, 17 May 1999) Ceccattini v ICM 2000 Pty Ltd [1999] NSWSC 1196 (Santow J, 8 December 1999) Telecomputing PCS Pty Ltd & Ors v Bridge Wholesale Acceptance Corporation (Aust) Ltd (1991) 24 NSWLR 513
DECISION:	Matter remitted to referee for further consideration and report.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN J

FRIDAY 11 AUGUST 2000

5117/1999 - JULIE DAWN RHODES v CHRISTINE ELIZABETH FLETCHER & QUASAR PROFESSIONALS ACT PTY LIMITED

JUDGMENT

Introduction

1    The plaintiff, Julie Dawn Rhodes, and the first defendant, Christine Elizabeth Fletcher, are the two shareholders of the second defendant, Quasar Professionals ACT Pty Limited. The second defendant was incorporated on 21 February, 1994 and carries on business in the Australian Capital Territory of placement of personnel in the Information & Technology (IT) Industry.

2    In 1999 disputation arose between the plaintiff and the first defendant and the plaintiff commenced these proceedings on 20 December 1999. The proceedings were in the nature of an oppression suit and the plaintiff sought an order that the first defendant purchase the plaintiff’s share in the second defendant.

3    The plaintiff and the first defendant reached agreement and on 22 February 2000 Bryson J made Consent Orders (the Orders) including the following:

1. There be remitted to Greg Hollands, an accountant or failing agreement by him to the appointment within 14 days to a CPA nominated by the President of the Society of Accountants or chartered accountant nominated by the President of the Institute of Chartered Accountants in Australia or such other party as they agree regarding the question, what is the fair market value of the plaintiff’s shares in Quasar Professionals ACT Pty Limited ACN 063 618 548, such valuation to be conducted as at date nominated in writing to the said accountant by the solicitors for Ms Rhodes within 14 days of his appointment being a date on or after 1 October 1998 and in default of such nomination, 1 October 1998.

2 The said accountant report as to the amount of any dividends or other distributions of property or assets that Ms Rhodes has received after the date of the said valuation, less any increase in liabilities to her.

3 The said accountant report within 21 days of acceptance of the reference referred to by delivery of a copy of the report to the solicitors for the plaintiff and the defendant and by filing with the Court a copy of the report so supplied.

4 An Order that each of the parties deliver to the expert such documents or records as may be required by him from time to time.

5 An Order that the expert be remunerated by the second defendant on the basis of work done at his hourly rate and direct expenses incurred by him.

6 Reserve liberty to the expert to apply to the Court on giving 3 days’ notice.

7 Reserve liberty to apply to the Court for further consideration on giving 3 days’ notice.

8 The parties agree that the valuation referred to in paragraphs 1 & 2 shall be conclusive and binding.

9 Order that the first or second defendant purchase the plaintiff’s shares in the second defendant at the valuation referred to in paragraphs 1 & 2.

10 Direct that the referee may make inquires, receive submissions and receive any evidence as he or she thinks fit by such means and in such places as he or she nominates, at his or her discretion in order to minimise the cost, inconvenience and to undertake the most expeditious inquiry as he or she considers available.


Orders 11 and 12 adjourned the proceedings to 4 April 2000 and reserved

the costs.

4    Mr GC Hollands (Mr Hollands) of Hollands and Partners accepted the appointment on or about 25 February 2000 and on 30 May 2000 produced a report, dated 29 May 2000, to the solicitors for the parties (the Report). Mr Hollands valued the plaintiff’s shareholding as at 1 October 1998 at $231,002. It is the process of the preparation of that report and the report itself that is now the subject of disputation between the parties.

5    The first defendant, by way of Notice of Motion filed on 20 June 2000, seeks orders that the matter be remitted to Mr Hollands for further consideration and to provide a report after taking into account such further evidence and submissions as the Court directs. The plaintiff, by Notice of Motion filed 23 June 2000, seeks an order for specific performance of the sale of the plaintiff’s share to the first or second defendant for $231,002. Mr Cotman SC appeared for the plaintiff and Mr Harper, leading Mr J Gillespie, appeared for the defendants.

The Nature of the Reference

6 Although the Orders do not expressly refer to any of the Supreme Court Rules (the Rules), the first defendant submitted that from a reasonable reading of the Orders it is apparent that a reference under Part 72 of the Rules was contemplated. It is submitted that this is particularly obvious from the use of the words “reference” and “referred” in Order 3 and the description of Mr Hollands as “referee” in paragraph 10 of the Orders. It is submitted that the Orders follow the essential provisions of Part 72, including defining the nature of the question referred and the basis of Mr Holland’s remuneration.

7 The first defendant submitted that if the Court was not of the view that Mr Hollands was a referee within the meaning of Part 72, the only meaningful alternative is that Mr Hollands is a Court Expert appointed pursuant to Part 39 of the Rules. It was submitted that the Court has powers under Part 39 Rule 2 to refer matters back to Mr Hollands on the same basis that a matter may be referred back to a referee. However the first defendant submitted that if Mr Hollands is to be treated as a Court Appointed Expert, the defendant could apply under Part 39 Rule 4 to cross examine him, and under Part 39 Rule 6 the parties could seek to call further evidence. It was submitted that either course seems contrary to the intention of the Orders and that Part 72 is the Part into which this “reference” fits.

8 The plaintiff submitted that the Orders did not include a reference under Part 72 or an appointment pursuant to Part 39. It was submitted that the parties had reached agreement as to how the valuation of the shares would be concluded and in particular the parties agreed pursuant to Order 8 that the valuation would be “conclusive and binding”. Mr Cotman SC highlighted the difference in the process contemplated by the Orders and the process contemplated pursuant Part 72 Rule 13.

9 Rule 13 provides for a process whereby the Court may adopt, vary or reject the report in whole or in part; require an explanation by way of report from the referee; on any ground remit for further consideration by the referee the whole or any part of the matter referred for further report; decide any matter on the evidence taken before the referee with or without additional evidence; and then give judgment or make such order as it thinks fit.

10    Mr Cotman SC submitted it was never contemplated by the parties that anything further was to happen in respect of the valuation other than the first or second defendant purchasing the plaintiff’s share on the basis of Mr Hollands’ “conclusive and binding” valuation.

11 Mr Harper submitted that whether Mr Hollands’ role fell within Part 72 or Part 39 of the Rules, or neither of those Parts, it was governed by the rules of natural justice. On this premise Mr Harper submitted that such a duty required Mr Hollands to be impartial and to be seen to be impartial: Xuereb & Anor v Viola & Ors (1989) 18 NSWLR 453. In that case Cole J said at 649:

Another aspect of natural justice is that the referee must be actually impartial, and must be perceived by a disinterested bystander to be so. Accordingly he must not hear evidence or receive representations from one side behind the back of or in the absence of the other.

12 In Ceccattini v ICM 2000 Pty Ltd [1999] NSWSC 1196 (8 December 1999) Santow J said at paragraph 12:

A fair minded person has been described in different ways for example, the reasonable person ( Vakauta v Kelly (1989) 167 CLR 568); the reasonably minded observer ( Goktas v GIO (1993) 31 NSWLR 684); an objective and reasonable person ( Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 275). Thus Deane J in Webb Webb v The Queen (1994) 181 CLR 41. at 67 quoting Livesy v NSW Bar Association (1983) 151 CLR 288 at 293 said that the test is:
Whether, in all the circumstances, a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the Judge] might not bring an impartial and unprejudiced mind to the resolution of the question in issue.

13 In Telecomputing PCS Pty Ltd & Ors v Bridge Wholesale Acceptance Corporation (Aust) Ltd (1991) 24 NSWLR 513 Rogers CJ Comm D described the notion of natural justice as it applies to referees in the following terms at 523:

It is established, by judgments by each of the judges of the Commercial Division, that referees are required to afford parties natural justice. What natural justice may require in a given case may vary substantially. There is no better guide to what natural justice may require in a given case than the test of fairness. Fairness demands that each party be afforded a proper opportunity of putting before the referee particulars of the contentions relied upon and an opportunity to comment not just on the information adduced by the other side, but also any information on contentious matters which may have been gathered by the referee. Further it means that a referee should not form a concluded opinion or close his or her mind to the contentions of the parties before all the evidence is in.

14 Although no specific Part of the Rules was referred to in the Orders, the Summons sought an order that a particular Chartered Accountant, “or such other expert as the Court may appoint, the Appointed Expert pursuant to the Supreme Court Rules to report as to the state of accounts of the Second Defendant and the amount payable to the Plaintiff on account of the Plaintiff’s shareholding in the Second Defendant” (par. 6).

15 The Orders make reference to both “referee” and “expert”. Part 39 Rule 1 refers to the Court Appointed Expert as a “witness” and the balance of the Part clearly contemplates the Expert’s report becoming evidence in the proceedings, subject to acknowledgement by the Expert that he is bound by the Code of Conduct in Schedule K of the Rules, and to the Expert being subjected to cross examination (Rules 2(2) and (3) and (4)).

16 I am satisfied that Part 72 is the closest “fit” for the reference under the Orders. I am also satisfied from the Orders that Mr Hollands’ role is not that of a Court Appointed Expert under Part 39. He is not a witness in continuing proceedings. Cross examination would not be appropriate in the circumstances of this appointment: Ceccattini v ICM 2000 Pty Ltd [1999] NSWSC 453 (Santow J 17 May 1999) at pars.33-36.

17 Even if the reference had been as Mr Cotman SC submitted, a reference by agreement between the parties without contemplation of the application of Parts 72 or 39 of the Rules, I am satisfied that the approach adopted by Rogers CJ Comm D in Telecomputing in relation to referees is one that should be adopted in relation to Mr Hollands. However, if the appointment had been outside the Rules the defendants would probably have had to resort to administrative relief rather than the relief sought in the Motion for remittal for reconsideration.

18    I am satisfied that Mr Hollands was required to afford natural justice to the parties, giving each the opportunity of putting before him the relevant matters for which they contended and giving each the opportunity to comment upon the relevant information adduced from the other party and to comment upon information on contentious matters otherwise gathered by him.

19    I am also satisfied that I have the power to remit any part of the matter referred to Mr Hollands if I am satisfied that there has been a denial of natural justice to the defendants.

Gathering Information

20    On 22 March 2000 Mr Hollands sent a facsimile to the first defendant’s solicitors advising that:

· his appointment had been accepted on or about 25 February 2000;

· the plaintiff was to make submissions in relation to the matter in a “couple of days”;

· he required the first defendant to advise whether, and if so when, she should be able to make submissions; and

· he required advice as to the location of the business records of the second defendant.

21    On 23 March 2000 the first defendant arranged and attended a conference with Mr Hollands with her solicitor. During the course of that conference Mr Hollands advised the first defendant that he would require financial information for the period up to and including 1 October for the purpose of completing the valuation. The first defendant informed Mr Hollands that she would be happy to provide him with anything he required. Mr Hollands informed the first defendant he would not use any information relating to periods after the nominated date in the Report.

22    Between 23 March 2000 and late May 2000 the first defendant provided Mr Hollands with financial accounts of the second defendant for the years ending 30 June 1997 and 30 June 1998, the monthly income and expenditure reports for July, August and September 1998 and the trade creditors and debtors information to 30 September 1998.

23    Apart from providing some information in relation to the receivables reconciliation as at 1 October 1998 there was no further communication between Mr Hollands and the first defendant until the first defendant received the Report on 30 May 2000.

The Report

24    Mr Hollands outlined the background to his appointment, a short description of the dispute, and noted that he had been directed to provide a valuation as at 1 October 1998.

25    The Report noted that the “parties” had provided a copy of the financial accounts for the years ending 30 June 1997 and 30 June 1998 and monthly reconciled statements of payments and receipts for the period 1 July 1998 to 30 September 1998.

26    From those accounts Mr Hollands concluded that the second defendant’s trading results only started to become successful from 1 July 1996. He then made a number of observations about the accounts which included the following:

We are advised that Hilton Fletcher, the spouse of Christine Fletcher was employed by the company on a remuneration arrangement that might be regarded as excessive, but on this point see later.

27    The report then dealt with matters under the heading “Valuation Considerations”. Mr Hollands concluded that the business “would be regarded as reasonably marketable” by reason of its profitable nature and the growth of income over the years under review.

28    He noted that as there was little by way of “hard” assets such as property, plant and equipment and stated that he had chosen to use the capitalisation of Future Maintainable Earnings (FME) to determine the value of the business as a whole. He pointed out that the factors which were essential to that formulation were:

· the amount of profits which might be regarded as FME; and

· the capitalisation rate to be applied to that figure.

29    In relation to FME Mr Hollands referred to the after tax net income from the accounts in the years 1997 and 1998 and stated that he had been “advised” of the after tax income for the year ended 30 June 1999. It was conceded by both parties that these references should have been to before tax income. However he indicated that the 1999 figure would not be taken into account as the valuation was to be taken as at 1 October 1998. He continued:

However, it is important as, in the absence of completed accounts for the company at this date it reflects that the business operations of the company have continued to be profitable into the next financial year, and thus supports some of the conclusions as to the capitalisation rate that is to be applied.

30    Mr Hollands then returned as he said he would, to the topic of Hilton Fletcher in the following terms:

As indicated above, it would appear that Hilton Fletcher has been provided with remuneration at a rate which might be regarded as excessive to the market generally. This is a common occurrence in privately owned businesses and an adjustment should be made to the FME to “normalise” the income to an equivalent market rate.

31    Mr Hollands then referred to the November 1996 Survey of Salary and Reward Policy for Recruitment Consultants and to the total average remuneration therein. He concluded that the average between a senior consultant and a consultant was $96,274. He continued:

The actual amount paid to Hilton Fletcher for the 1997 year was $34,557 for approximately 9 months employment and thus it is considered that no adjustment is necessary for that year. In the 1998 income year the position is different with an amount of $184,161 being paid to him. Accordingly, an adjustment of $87,887 is proposed to reduce this remuneration to the average figure of $96,274. This adjustment will increase the FME figure by this amount.

32    Mr Hollands noted that a further step needed to be taken in normalising the net incomes by reason of the fact that neither the plaintiff nor the first defendant had received salaries and had only received dividends. He stated that the determination of that amount needed to be reviewed. He then referred to other advice he had received as follows:

We are advised that an arm’s length manager was engaged by Quasar on an annual salary of $72,000. Payment was made in the 1998 income year for 4 months and thus an adjustment for 8 months (at $6,000 per month) needs to be made of $48,000.
It is proposed to make a similar full year adjustment in the 1997 income year of $72,000.

Mr Hollands set out the calculation for the FME figure and then averaged it over two years to reach the final figure of $115,501.

33    Mr Hollands then turned his attention to the capitalisation rate that was to be applied to the FME of the second defendant’s business and noted:

This issue often gives rise for concern and is in reality an application of an opinion.

He then referred to relevant considerations in choosing the rate as follows:

· the current rates of return for investment in the investment area generally;

· the current rates of return for investments generally applicable for similar businesses;

· the adjustment of the current rates for risk factors such as the capacity of the business to continue the stream of income;

· the adjustment of current rates for risk factors in the business context generally compared to bank interest in a relatively risk free environment; and

· market information about what independent parties might be offering for similar businesses.

34    In respect of this last mentioned matter Mr Hollands said:

In this context we are advised that discussions have taken place with listed companies operating in this area with the objective of selling businesses at a price/earnings ratio (or capitalisation rate) of 6 times after tax earnings. There were some conditions attached to this arrangement including continuation of certain key personnel. Without those conditions a multiple of 4 times after tax earnings was achievable.
A price/earnings multiple of 4 translates into a capitalisation rate of 25%. In comparison to a relatively risk free bank investment of say, 5% and bonds at the rate of 8%-9%. In contemplating this issue it was suggested that in view of the fact that staff do not have restraint of trade conditions imposed on them, that Quasar is a smaller operator in this market and that the work (and thus profits) are contract driven, that there is little or no goodwill which would lead to a low price earnings multiple.

35    Mr Hollands noted that the ultimate measure of the value of the business will be the profits that are generated from the funds employed and expressed the view that in the second defendant’s case there were significant profits that had been generated and were continuing to be generated. He reached this conclusion “regardless of the impediments that have been argued mitigate against any goodwill value”.

36    Having referred to his view that market conditions would prevail in concluding the issue Mr Hollands expressed the opinion that a capitalisation rate of 25% (or price/earnings multiple of 4) was an appropriate factor to apply to the FME of the second defendant. This resulted in applying the capitalisation rate to the FME ($115,501) which resulted in a total valuation of the company of $462,004. That figure was applied to the net tangible assets of the company as at 1 October 1998 and an imputed goodwill figure was calculated at $225,494.

37    Mr Hollands valued the plaintiff’s share at 50% of $462,004 resulting in the value of $231,002 as at 1 October 1998. He concluded the capitalisation rate section of his Report by saying “in addition to her interest as a shareholder, the company owes Ms Rhodes a loan account of $75,589 which should be repaid in full”.

38    The final portion of the Report, is headed “Reservations” one of which was expressed as follows:

The conclusions contained in the valuation and the report are subject to review upon presentation of data which is either undisclosed or not available as at the date of this report.

39    It is apparent from the Report that Mr Hollands was provided with the following:
· information that Hilton Fletcher was the spouse of the first defendant;

· information about the engagement of a manager which he described as “arm’s length”;

· information from an unidentified source about discussions by some unidentified person or persons with unidentified listed companies operating either in the same geographical area as the second defendant or in the same industry as the second defendant;

· information about conditions in a particular unidentified arrangement disclosed by the unidentified person who provided the information about discussions with the unidentified listed companies;

40    The first defendant submitted that the receipt and use of this information by Mr Hollands without giving the first defendant the opportunity to comment upon it and/or make submissions about it was unfair and amounted to a breach of the rules of natural justice.

41    The first defendant submitted that had the opportunity been afforded submissions and/or information would have been provided to Mr Hollands to correct a number of erroneous conclusions which he appeared to have reached on this information.

42    The alleged erroneous conclusions included:
· that Hilton Fletcher was living with the first defendant as her spouse when the true position was that Hilton Fletcher and the first defendant were estranged;

· that the second defendant’s payment to Hilton Fletcher was paid in accordance with what was described as “a common occurrence of privately owned businesses”. The first defendant claimed the position was quite different;

· that the discussions with the listed company was market information about “a similar business” when the true position was that if, as the first defendant apprehended, the listed company referred to was Unisys People, the business was not at all similar to that of the second defendant.

43    The first defendant’s evidence was that the salary scheme for Hilton Fletcher was instituted by the plaintiff and all wages paid to Hilton Fletcher were paid under that scheme. The first defendant said that Mr Fletcher’s high salary in the 1998 financial year resulted from commission earned on sales. The first defendant stated that Mr Fletcher was very good at selling and was compensated at 50% of his gross margin. That scheme was the subject of a Management Committee meeting held in February 1998 and a new commission policy was recommended.

44    The first defendant submitted that had the opportunity been provided such information could have been given to Mr Hollands together with the correct information that the first defendant and Mr Fletcher were estranged.

45    Mr Hollands proceeded to normalise Mr Fletcher’s salary in the valuation process on the basis that it may have been considered by some in the market place to be excessive. A reasonable reading of the report is that this approach was integrally connected to Mr Hollands’ statements about Mr Fletcher’s status as the spouse of the first defendant, the reference to the “common occurrence in private companies” giving rise to that level of payment and the reference to the “arm’s length” arrangement with the manager employed during part of the period.

46    It may be that if the first defendant had been able to place before Mr Hollands the above information about Mr Fletcher’s salary, Mr Hollands would still have proceeded to normalise Mr Fletcher’s salary. However that is not the test in this case.

47    Although the first defendant does not know, and the Court does not know, what Mr Hollands was referring to when he reported that he had been advised of the discussions with the listed companies, the first defendant, has for the purposes of this application, assumed that the reference is to the sale by Unisys People to Candle Australia.

48    The first defendant distinguished the second defendant’s business from that of Unisys People. The latter was a national IT recruitment company with a large number of staff and contractors. Additionally it had a secured major customer, Unisys Australia. As part of the sale, Unisys Australia apparently entered into an exclusive arrangement whereby Candle Australia would be their guaranteed supplier.

49    In contrast, the first defendant claimed that the second defendant is not a national business, has no guaranteed customers and no guarantee of goodwill or future earnings, no restraint of trade covenants and no obligation to provide continued assistance after the sale.

50    In cross examination of both the first defendant and Mr Irving, the accountant for the second defendant, Mr Cotman SC demonstrated very effectively that if certain of the information that the first defendant wished to have placed before Mr Hollands, was placed before him, there may be no difference in the valuation.

51    The first defendant submitted that the statement by Mr Hollands that the loan account to Ms Rhodes “should be repaid in full” demonstrated a lack of impartiality. Mr Harper submitted that such a statement would give any reasonable, objective observer the impression that Mr Hollands may well be taking the partisan position favourable to the plaintiff.

52    The first defendant’s evidence in relation to this debt (Tr. 30 - 35) demonstrated that the first defendant was offended by the statement that the debt should be repaid in full. There is no doubt that disputation had arisen between the first defendant and the plaintiff over the debt in the past. There is equally no doubt that the liability was contained in the second defendant’s accounts provided to Mr Hollands, without disclosing to Mr Hollands that the first defendant was of the view that, although the debt was contained in the accounts, there was an issue between the first defendant and the plaintiff as to whether the debt was payable.

53    It seems to me that a reasonable, objective observer would not take the view that such a reference is evidence of partisan attachment to the plaintiff or a lack of impartiality.

54    As Rogers CJ Comm D said in Telecomputing “what natural justice may require in a given case may vary substantially”. Mr Cotman SC submitted that the first defendant must have known that Mr Hollands was meeting with parties without the other being present because the first defendant met with Mr Hollands in the absence of the plaintiff. However that does not mean that natural justice would dictate that Mr Hollands could keep from the other party, not present at the meeting, relevant information that he received in the absence of that party that he was going to use in his valuation process.

55    Mr Hollands highlighted the fact that the choice of the capitalisation rate “often gives rise for concern”. Indeed that is exactly what has happened in this case. This is not a case where there is concern simply about the choice of the rate. It is the process of obtaining information and being given advice about matters, including discussions with third parties, and utilising that information in the Report without providing the first defendant with an opportunity to comment upon it that gives rise to the concern.

56    Natural justice issues aside, the evidence establishes that Mr Hollands’ valuation process was competent. However in this application it is not an answer to submit that the analysis was competent and careful.

57    In relation to the advice about the listed companies received by Mr Hollands, the first defendant simply does not know with certainty what the arrangement was, with whom the arrangement was made, which listed company was the subject of the discussions and who provided the detail to Mr Hollands. It was obviously important enough for Mr Hollands to include it in his Report and to subject it to analysis. It was therefore important for the first defendant to know about it and to be given the opportunity to comment upon it.

58    I am also of the view that Mr Hollands should have given the first defendant an opportunity to comment upon the salary issue relating to Mr Fletcher.

59    These matters and others were raised with Mr Hollands in a letter of 7 June 2000 from the defendants’ solicitors. That letter noted the reservation expressed in the Report and suggested that Mr Hollands did not appear to have had access to further information which was raised by the first defendant. The letter requested Mr Hollands to withdraw his current valuation and reconsider the matter having regard to the matters raised in the letter of 7 June 2000.

60    Apparently Mr Hollands was away from his office between 7 June 2000 and 13 July 2000. On that day he responded to the defendants’ solicitors refuting the observations made in the communication and suggesting that on calm reflection the defendants would reach a “different conclusion”.

61    Mr Hollands did not specifically address the request to receive the further information and consider it which may be understandable by reason of the claim at the end of the solicitor’s letter threatening proceedings in negligence.

62    I am satisfied that the material dealing with Mr Fletcher’s salary issue and the listed company discussions issue was material relating to a contentious matter. These matters seem to me to be related directly and indirectly to the steps taken ultimately to reach the choice of the capitalisation rate.

63    I am satisfied that, consistent with the application of the notion of natural justice as it applies to referees outlined by Rogers CJ Comm D in Telecomputing at 523, opportunity should have been afforded to the first defendant to comment upon and/or provide information and make submissions upon those matters. I am also satisfied that the failure to provide such opportunity was in breach of natural justice.

64 I am satisfied that, pursuant to Part 72 Rule 13 of the Rules, the matter should be remitted to Mr Hollands in order for the following to occur:

1 That Mr Hollands provide to the first defendant details of the information provided to him in relation to the discussions with the listed companies and the arrangement to which reference was made in the Report. An opportunity should then be afforded to the first defendant to make submissions about that information; and
2 That Mr Hollands provide the opportunity to the first defendant to provide information and make submissions about the matters relating to Hilton Fletcher’s status and his salary structure.

65    I direct that the information which I have ordered to be provided to the first defendant be provided in writing by 5 pm on 18 August 2000. The first defendant is to provide information and submissions to Mr Hollands, and provide copies of that information and submissions to the plaintiff by 5 pm on 25 August 2000 Should the plaintiff wish to make any submission upon the information and submissions provided by the first defendant such is to be provided to Mr Hollands, with copies provided to the first defendant, by 5 pm on 1 September 2000.

66    Mr Hollands is to review the further material and submissions, reconsider the matter in the light of any material and submissions he receives and provide a valuation report by 15 September 2000, by serving a copy on the solicitors for each of the parties and filing a copy with this Court.

67    I will grant liberty to restore the matter to the list on 1 day’s notice should either party seek to vary the timetable in paragraphs 65 and 66 and to hear any application as to costs should the parties not be able to agree to a costs order.

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Last Modified: 09/27/2000