Waikato Insurance & Financial Services Limited v Inrich Financial Services Limited
[2012] NZHC 2086
•16 August 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2012-419-000966 [2012] NZHC 2086
BETWEEN WAIKATO INSURANCE & FINANCIAL SERVICES LIMITED a duly incorporated company having its registered office at Matley Financial Services Limited, 758a Horotiu Road, RD 8, Hamilton and carrying on business as a financial services provider
Plaintiff
ANDINRICH FINANCIAL SERVICES LIMITED a duly incorporated company having its registered office at 35 Janway Avenue, Flat Bush, Manukau, 2016, New Zealand
First Defendant
AND BRYAN TUCKER 35 Janway Avnue, Flat
Bush, Manukau, Insurance Broker
Second Defendant
ANDGOLDSTAR GROUP LIMITED a duly incorporated company having its registered office at 33 Janway Avenue, Flat Bush, Auckland and carrying on business as an insurance broker
Third Defendant
ANDJORDAN PATERSON 35 Janway Avenue, Flat Bush, Manukau, a company director
Fourth Defendant
ANDAMP SERVICES (NZ) LIMITED a duly incorporated company having its registered office at Level 21, AMP Centre, 29
Customs Street West, Auckland 1140, New
Zealand
Fifth Defendant
WAIKATO INSURANCE V INRICH FINANCIAL SERVICES NEW ZEALAND HC HAM CIV-2012-419-
000966 [16 August 2012]
Hearing: 15 August 2012
Appearances: T M Braun and K I Bond for the Plaintiff
First Defendant in Person
T M Singleton for the Fifth Defendant
Judgment: 16 August 2012
RESERVED JUDGMENT OF GILBERT J
This judgment was delivered by me on 16 August 2012 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………….
Counsel: T M Braun, Hamilton: [email protected]
K I Bond, Hamilton: [email protected]
T M Singleton, Auckland: [email protected]
Party: B Tucker, Manukau: [email protected]
[1] In late 2010 Mr Longman, the principal of the plaintiff (WIFSL), and Mr Tucker, the principal of the first defendant (Inrich), decided to merge their AMP insurance broking businesses. The merger was effected by WIFSL transferring its clients to Inrich in return for a 61 percent shareholding in Inrich. The effective date of the merger was 1 January 2011. Mr Longman joined Mr Tucker as a director of Inrich and the two of them worked in the business and shared profits in proportion to their respective shareholdings.
[2] As a result of a dispute with AMP, Mr Tucker resigned as an AMP agent. Mr Longman wished to continue with AMP and so he and Mr Tucker agreed that they should separate their interests. The present dispute arises out of their inability to agree on the terms of separation.
[3] Mr Tucker resigned as a director of Inrich in January 2012 and has not worked in the business since then. Mr Longman became the sole director. In that capacity he directed AMP to pay commissions due to Inrich to a bank account held by WIFSL. Mr Tucker was concerned about this and other payments made by Inrich to Mr Longman and so he passed a shareholder’s resolution removing Mr Longman as the director of Inrich and replacing him with the fourth defendant, Mr Paterson. Mr Tucker took this step relying on the fact that the Companies Office records continue to show him as the sole shareholder despite the agreement that WIFSL was entitled to 61 percent of the shares. Mr Paterson then purported to remove Mr Longman as an employee of Inrich with the result that Inrich was left without an AMP agent who could look after its clients.
[4] Faced with this situation AMP exercised its “step-in” rights under its agency agreement with Inrich. AMP is now servicing the clients through its call centre staff. However, this is not a satisfactory arrangement in the long-term. All parties agree that the clients should be serviced by an advisor and that the value of the client book will diminish unless this occurs. Subject to any order the Court may make on the present application, AMP proposes to exercise its right to sell the commission rights to another AMP advisor. Any sale will be at a price set by AMP in accordance with a
standard formula and will be paid to Inrich after any authorised deductions. WIFSL is a possible purchaser because Mr Longman has serviced these clients in the past. Mr Tucker is not able to purchase because he is not now an AMP advisor.
[5] WIFSL does not want AMP to sell the commission rights to another advisor, nor does it wish to pay to re-acquire these rights having contributed them to Inrich in the merger. It would prefer to be able to service and receive commissions for these clients until the substantive dispute is resolved.
[6] Recognising that the commission rights currently rest with Inrich, WIFSL’s solicitors formulated a strategy for WIFSL to re-acquire them. They wrote to Inrich on 28 June 2012 purporting to cancel one of the agreements under which those rights had been transferred claiming that Inrich had not paid the cash purchase price allegedly due. WIFSL then issued these proceedings seeking damages and relief under s 9 of the Contractual Remedies Act 1979 re-vesting the commission rights in WIFSL.
[7] WIFSL applies for an interim injunction, pending the hearing of its substantive claim, preventing Inrich; Mr Tucker; his new company, Goldstar (the third defendant); and Mr Paterson from contacting the clients or selling the commission rights. WIFSL also applies for an interim injunction requiring AMP to pay the commissions to WIFSL and restraining it from selling the rights to any other AMP advisor.
[8] Mr Tucker opposes WIFSL’s applications. He says that Inrich is entitled to
contact these clients and to receive the commissions.
[9] AMP claims that it is entitled to sell the commission rights to another AMP advisor. However, it will not do so if WIFSL can establish that it is arguably entitled to these rights.
[10] The critical issues are:
(a) Is WIFSL arguably entitled to the commissions payable for these clients?
(b) If so, does the balance of convenience favour an injunction?
(c) Do the overall interests of justice require the grant of an injunction?
Is WIFSL arguably entitled to the commissions?
[11] WIFSL transferred to Inrich the rights to receive commissions in respect of its clients under two separate agreements. The first agreement covered the commission rights for life insurance policies arranged by WIFSL. These were transferred to Inrich on 1 October 2010. WIFSL’s commission rights for all other policies were transferred under a second agreement with effect from 1 January 2011. Both agreements specified a price payable on these dates. Inrich did not pay the cash sum shown as the purchase price under either agreement. WIFSL relies on Inrich’s alleged failure to pay the purchase price under the second agreement, which was approximately $450,000, to justify its cancellation of the agreement.
[12] The problem with this analysis is that the evidence shows that the purchase price was not going to be paid in cash. The agreements were in the form prescribed by AMP and this is why cash purchase prices were recorded. However, despite this, the parties did not intend that cash would be paid. Rather, they intended that WIFSL would receive a 61 percent shareholding in Inrich in consideration for transferring the commission rights in respect of its clients. This is consistent with the fact that one of Mr Tucker’s prime motivations for the merger was his distressed financial situation at the time. Inrich and Mr Tucker were not able to pay $450,000, let alone the further sum of approximately $210,000 expressed to be payable under the earlier agreement relating to the life insurance policies. There is no evidence that WIFSL
demanded payment of these cash sums. This is because it did not expect Inrich to make cash payments.
[13] The fact that the expected consideration was a shareholding in Inrich rather than cash is confirmed by an email from WIFSL’s accountant to WIFSL’s solicitor on
1 February 2011 advising that the shareholding in Inrich from the date of the merger was to be split 61/39 between WIFSL and Mr Tucker’s interests. The split was based on the value of the client registers contributed by WIFSL compared with the value of the existing Inrich registers. The arrangement is also confirmed by a share equalisation agreement prepared by WIFSL’s solicitors and dated 23 February 2012. This agreement records the same shareholding split based on the value of the registers transferred by WIFSL and required Mr Tucker’s interests to re-acquire
11 percent of the shares in Inrich from WIFSL over a five year period so that their shareholdings would become equal.
[14] Mr Braun, for WIFSL, acknowledged that the evidence shows that WIFSL was to receive a 61 percent shareholding in Inrich in return for transferring its clients to Inrich rather than cash. In these circumstances, contrary to the position taken by WIFSL’s solicitors when purporting to cancel the agreement, Inrich had no obligation to pay $450,000 on 1 January 2011 or at any other time. The purported cancellation of the agreement was therefore invalid.
[15] There is another equally fundamental problem. Even if WIFSL validly cancelled the agreement, this did not divest Inrich of its rights to commission for those clients.[1] Inrich presently has sole rights to the commissions. Unless and until the Court makes an order under s 9, WIFSL has no arguable rights to the commissions that could support an interim injunction.
[1] s 8(3)(b) Contractual Remedies Act 1979.
[16] It follows that WIFSL’s rights will not be infringed by Inrich contacting any of the clients transferred to it. Similarly, WIFSL’s rights will not be infringed if AMP pays the commissions to Inrich or if Inrich disposes of the commission rights. It is not disputed that AMP has the right to dispose of the commission rights to
another AMP advisor. AMP will not infringe WIFSL’s rights by doing so.
[17] I recognise that this is an application for interim injunction and that it is neither necessary nor appropriate to express any concluded view on the merits of the case. WIFSL may amend its claim and further evidence may become available which could change the assessment. However, for the reasons I have given, and based on the evidence and pleadings filed to date, I conclude that WIFSL has not established an arguable case that could justify the orders it has sought by way of interim injunction.
Balance of convenience
[18] Even if WIFSL had persuaded me that it had an arguable entitlement to the commissions, I would still have declined its application for an interim injunction because the balance of convenience does not favour it.
[19] WIFSL argues that the balance of convenience favours the grant for the following reasons. First, it claims that the defendants are not able to service the clients. Whether or not this is correct is beside the point because AMP is currently servicing them in exercise of its “step-in” rights under its agency agreement with Inrich. Second, WIFSL claims that these clients currently do not have an insurance advisor. Again, this is answered by the fact that AMP is currently looking after them and intends to sell the commission rights to another advisor. Third, WIFSL claims that it has no other source of income. That may be so but, balanced against this, I must take into account that Inrich also has no other source of income. Inrich has outstanding creditors whose interests must also be considered. I do not see this as a factor favouring WIFSL. Finally, WIFSL says that AMP would allow it to service the clients but would not allow Mr Tucker to do so. This is not a significant factor given that AMP is presently servicing the clients without assistance from either party and intends to sell the commission rights to another advisor. WIFSL can purchase the rights from AMP if it wishes to do so.
[20] I consider that damages are likely to be an adequate remedy in this case. AMP has a vested interest in ensuring that the clients are well supported. It will
service them until it can find a suitable advisor to take over. In the meantime, AMP will maintain accurate records of all commissions payable. Inrich will receive proper value for the clients through the sale to be conducted by AMP. WIFSL will be entitled to its share of those proceeds as a 61 percent shareholder of Inrich.
[21] Inrich and AMP may not be adequately protected by WIFSL’s undertaking as to damages if the injunction is granted. WIFSL has not provided any evidence to show that it has sufficient financial means to back its undertaking. The evidence indicates that it currently has no clients, no assets and no income. This is another factor weighing against the grant of an interim injunction.
[22] The injunction sought by WIFSL would significantly change the present arrangements. Inrich would lose the commissions it has been entitled to since
1 January 2011. Inrich’s creditors would suffer as a result. AMP would not be able to exercise its rights to sell the commission rights to another advisor. In my view, these consequences cannot be justified in this case.
Overall justice
[23] I do not consider that the risk of harm to WIFSL if the injunction is not granted and s 9 relief is ultimately given transferring commission rights back to it, is outweighed by the risk of harm to Inrich, its creditors and AMP if the injunction is granted and Inrich’s and AMP’s rights are confirmed in the substantive proceeding. WIFSL does not have any present right to commission from any of these clients. There is no assurance that it will obtain these rights through relief under s 9. If it can prove that the agreement was breached, it will be entitled to damages. This should be an adequate remedy.
Result
[24] The application for interim injunction is declined.
[25] If any party seeks costs, a memorandum should be filed and served within
14 days of the date of this judgment. Any memorandum in response should be filed
and served within 14 days thereafter. These memoranda should be referred to me to
be dealt with on the papers.
M A Gilbert J
0
0
1