Network Ten Pty Ltd v Tx Australia Pty Ltd - [2018] NSWCA 312

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Network Ten Pty Ltd v TX Australia Pty Ltd [2018] NSWCA 312
Hearing dates: 16 August 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Before: Bathurst CJ at [1]; Meagher JA at [128]; Gleeson JA at [131]
Decision:
(1)   Allow the appeal.

(2)   Set aside the declaration made by the primary judge and in lieu thereof order that the proceedings be dismissed.
(3)   Direct the parties within 7 days to either file a consent order dealing with the costs of the appeal and the costs of the proceedings below or submissions as to the appropriate costs orders.
Catchwords:
CONTRACTS – Construction – Interpretation – agreement required an auditor to “determine” a price for shares – whether the agreement required the auditor to determine a single price – whether the auditor had in fact determined a single price
VALUATION – Value – Market value – agreement required an auditor to determine a “price” for shares – whether the agreement required the auditor to determine the price based on market value or to determine a fair and reasonable price
Legislation Cited: Nil
Cases Cited: Australia Pacific Airports (Melbourne) Pty Ltd v The Nuance Group (Australia) Pty Ltd [2005] VSCA 133
Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367; [2015] NSWCA 275
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; [1982] HCA 53
Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Foley v Classique Coaches Ltd [1934] 2 KB 1
Franke v CIC General Insurance Ltd (1994) 33 NSWLR 373
MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451
Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] 1 Lloyd’s Rep 205
Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82
Sudbrook Trading Ltd v Eggleton [1983] 1 AC 444
Category: Principal judgment
Parties: Network Ten Pty Ltd (appellant)
TX Australia Pty Ltd (first respondent)
Nine Network Australia Pty Ltd (second respondent)
Seven Network (Operations) Ltd (third respondent)
Representation:
Counsel:
N Hutley SC with A Hochroth (appellant)
A Bell SC with D Thomas (first respondent)
K Williams SC with R Mansted (second respondent)
D Sulan with K Petch (third respondent)
Solicitors:
Corrs Chambers Westgarth (appellant)
Herbert Smith Freehills (first respondent)
DLA Piper Australia (second respondent)
Addisons Lawyers (third respondent)

File Number(s): 2018/150490
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 559

Date of Decision:

1 May 2018

Before:

Stevenson J

File Number(s):

2018/39929

HEADNOTE

[This headnote is not to be read as part of the judgment]

TX Australia Pty Ltd (TXA) was a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCA 312
Decision Date: 14 December 2018

CaseChat Overview and Summary

Network Ten Pty Ltd (Network Ten) and Tx Australia Pty Ltd (Tx Australia) were parties to an agreement concerning the determination of a price for shares. The dispute arose from the interpretation of this agreement, specifically concerning the auditor's role in setting the share price. The matter was heard on appeal in the Court of Appeal of New South Wales, with Bathurst CJ, Meagher and Gleeson JJA presiding.

The central legal issues before the Court of Appeal were whether the agreement mandated the auditor to determine a single, definitive price for the shares, and whether the auditor had, in fact, achieved this by their determination. Further, the court was required to consider whether the auditor's obligation was to determine the price based on market value or to ascertain a fair and reasonable price.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in their interpretation of the agreement. Their Honours reasoned that the agreement required the auditor to determine a single price, and that the auditor's previous actions did not constitute such a determination. The court set aside the declaration made by the primary judge and, in lieu thereof, ordered that the proceedings be dismissed. The parties were directed to file a consent order regarding costs or make submissions on the appropriate costs orders within seven days.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside the declaration made by the primary judge and in lieu thereof order that the proceedings be dismissed.

(3) Direct the parties within 7 days to either file a consent order dealing with the costs of the appeal and the costs of the proceedings below or submissions as to the appropriate costs orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Network Ten Pty Ltd v TX Australia Pty Ltd [2018] NSWCA 312
Hearing dates:	16 August 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Before:	Bathurst CJ at [1]; Meagher JA at [128]; Gleeson JA at [131]
Decision:	(1) Allow the appeal. (2) Set aside the declaration made by the primary judge and in lieu thereof order that the proceedings be dismissed. (3) Direct the parties within 7 days to either file a consent order dealing with the costs of the appeal and the costs of the proceedings below or submissions as to the appropriate costs orders.
Catchwords:	CONTRACTS – Construction – Interpretation – agreement required an auditor to “determine” a price for shares – whether the agreement required the auditor to determine a single price – whether the auditor had in fact determined a single price VALUATION – Value – Market value – agreement required an auditor to determine a “price” for shares – whether the agreement required the auditor to determine the price based on market value or to determine a fair and reasonable price
Legislation Cited:	Nil
Cases Cited:	Australia Pacific Airports (Melbourne) Pty Ltd v The Nuance Group (Australia) Pty Ltd [2005] VSCA 133 Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367; [2015] NSWCA 275 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; [1982] HCA 53 Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Foley v Classique Coaches Ltd [1934] 2 KB 1 Franke v CIC General Insurance Ltd (1994) 33 NSWLR 373 MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451 Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] 1 Lloyd’s Rep 205 Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82 Sudbrook Trading Ltd v Eggleton [1983] 1 AC 444
Category:	Principal judgment
Parties:	Network Ten Pty Ltd (appellant) TX Australia Pty Ltd (first respondent) Nine Network Australia Pty Ltd (second respondent) Seven Network (Operations) Ltd (third respondent)
Representation:	Counsel: N Hutley SC with A Hochroth (appellant) A Bell SC with D Thomas (first respondent) K Williams SC with R Mansted (second respondent) D Sulan with K Petch (third respondent) Solicitors: Corrs Chambers Westgarth (appellant) Herbert Smith Freehills (first respondent) DLA Piper Australia (second respondent) Addisons Lawyers (third respondent)
File Number(s):	2018/150490
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2018] NSWSC 559 Date of Decision: 1 May 2018 Before: Stevenson J File Number(s): 2018/39929