Seymour (in her own right and as trustee for John Paul Micallef and Victoria Seymour) v Ashley
[2013] WASC 333 (S)
•25 JULY 2014
SEYMOUR (in her own right and as trustee for JOHN PAUL MICALLEF and VICTORIA SEYMOUR) -v- ASHLEY [2013] WASC 333 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 333 (S) | |
| Case No: | CIV:2813/2011 | 30 JUNE 2014 | |
| Coram: | McKECHNIE J | 25/07/14 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff for $63,085 together with interest Defendant is entitled to be indemnified by the third party | ||
| B | |||
| PDF Version |
| Parties: | MARY SEYMOUR (in her own right and as trustee for JOHN PAUL MICALLEF and VICTORIA SEYMOUR) MARK JOHN ASHLEY MAUREEN SOFIA ASHLEY |
Catchwords: | Judgment after trial Calculation of loss No new principles |
Legislation: | Nil |
Case References: | Seymour v Ashley [2013] WASC 333 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MARK JOHN ASHLEY
First Defendant
MAUREEN SOFIA ASHLEY
Second Defendant/Third Party
Catchwords:
Judgment after trial - Calculation of loss - No new principles
Legislation:
Nil
Result:
Judgment for plaintiff for $63,085 together with interest
Defendant is entitled to be indemnified by the third party
Category: B
Representation:
Counsel:
Plaintiff : Mr P A Tottle
First Defendant : In person
Second Defendant/Third Party : No appearance
Solicitors:
Plaintiff : Tottle Partners
First Defendant : In person
Second Defendant/Third Party : No appearance
Case(s) referred to in judgment(s):
Seymour v Ashley [2013] WASC 333
1 McKECHNIE J: In Seymour v Ashley [2013] WASC 333 I concluded that:
Mr Ashley should compensate Mrs Seymour by transferring the shares and paying the difference (if any) between the value of the shares at judgment and the value at 1 August 2009 [116].
2 On 30 June 2014 I took evidence as to the value of an Apex share on 1 August 2009.
3 Evidence was taken from Mr Russell McKimm, a client advisor at Patterson Securities Ltd with more than 30 years in the stockbroking industry.
4 He produced extracts from the IRESS trading system, a computerised trading system used by stockbrokers to buy and sell shares listed on the ASX. The IRESS trading system relies upon data made available to it by the ASX.
5 Using the IRESS reports he extracted information from the Daily Trading Records and the Depth Replay Report.
6 The Daily Trading Records show the opening sale price, the closing sale price, the highest price traded on the day and the lowest price traded on the day. They also show the volume weighted average price; a calculation that shows the average price traded for the day.
7 The 1 August 2009 was a Saturday so no trading took place on that day. Mr McKimm used unadjusted daily trading records to show sales in Apex shares for the last half hour of 31 July 2009 and the first minutes of sale on 3 August 2009.
8 The last sale price on the 31 July 2009 was 15.5 cents per share. The first sale price on 3 August 2009 was 16 cents per share.
9 Mr McKimm concluded that the Depth Replay Records indicate there were sufficient shares traded on 31 July 2009 to enable all of the 407,000 shares to be sold at 15.5 cents on that day. He notes that on 3 August 2009 some 600,000 shares were traded at 16 cents within the first two minutes of the opening of trading and therefore concludes (which I accept) that the 407,000 Apex shares could have been sold on the opening of trading on 3 August 2009 at 15.5 cents.
10 In Mr McKimm's opinion, which I accept, 15.5 cents was the price of Apex shares on 1 August 2009 as it was the last price at which Apex shares traded before 1 August 2009.
11 Mr McKimm also produced an extract from a presentation made by Mr Ashley as managing director and CEO of Apex Minerals at the Diggers & Dealers Conference on 3 August 2009 where, among other things, he assessed the market capitalisation as AU$96.5m undiluted (@ 16c/sh).
12 Mr Ashley in cross-examination and submissions was of the view that the figures regarding the trading volumes may be wrong. He had requested information from the ASX but it was not available at trial. He conceded that if the trading volume was as Mr McKimm suggested the sum of 15.5 cents per share was appropriate.
13 Because Mr Ashley is self-represented and has conducted himself appropriately in this litigation, I said that I would delay judgment for 14 days. If Mr Ashley did not apply for a further hearing, I would deliver judgment on the basis of the evidence given by Mr McKimm.
14 Mr Ashley has not applied for a further hearing.
Conclusion
15 The value of 407,000 Apex shares at 1 August 2009 is $63,085. In addition the plaintiff is entitled to interest at the rate of 5% on the unpaid amount at a daily rate of $10.36. Interest accrued to the date of judgment is $18,845.88. The defendant, Mr Ashley, must pay that amount to the plaintiff, Mrs Seymour, with interest.
16 The defendant, Mr Ashley, is entitled to an indemnity from the third party, Maureen Sofia Ashley, in respect of his liability to the plaintiff, Mrs Seymour.
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