David Morgan Investments Pty Ltd v Maggie Beer Holdings Ltd; Maggie Beer Holdings Ltd v David Morgan Investments Pty Ltd [2024] NSWSC 778

David Morgan Investments Pty Ltd v Maggie Beer Holdings Ltd; Maggie Beer Holdings Ltd v David Morgan Investments Pty Ltd [2024] NSWSC 778

The expert is required to calculate Earnings for the earn out by applying each of clauses 2.1, 2.2, 2.3(a), and the normalisation described in the second sentence of clause 2.3(b)(vi) of Schedule 11 to the Share Purchase Deed, and is to determine all Contested Matters notified by the Vendors, including those in dispute (Matters 6-11).

Jurisdiction
Australia
Judgment Date
25 June 2024
Procedural Posture
Commercial List (equity) / Principal Judgment
Outcome
Declarations made in favour of the Vendors on construction of the contract and scope of expert's determination; parties to confer on further orders; if costs or order terms disputed, to be resolved on written submissions.
Legal Topics
['construction of Contracts' 'share Purchase Deed' 'expert Determination' 'earn Out Calculation' 'interpretation of Agreements']
['contract Law' 'commercial Law'] ['construction of Contracts' 'share Purchase Deed' 'expert Determination' 'earn Out Calculation' 'interpretation of Agreements']

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Procedural Posture

Commercial List (equity) / Principal Judgment

Legal Issues

  1. 1 ["What are the principles the expert must apply in calculating 'Earnings' under the Share Purchase Deed?" 'Whether expert must consider changes in business conduct after purchase when calculating earnings and earn out amount' "Whether certain 'Contested Matters' are capable of determination by the expert"]

Ratio Decidendi

The expert is required to calculate Earnings for the earn out by applying each of clauses 2.1, 2.2, 2.3(a), and the normalisation described in the second sentence of clause 2.3(b)(vi) of Schedule 11 to the Share Purchase Deed, and is to determine all Contested Matters notified by the Vendors, including those in dispute (Matters 6-11).

Court Disposition

Declarations made in favour of the Vendors on construction of the contract and scope of expert's determination; parties to confer on further orders; if costs or order terms disputed, to be resolved on written submissions.

Orders

  • ['Declare clause 2 of Schedule 11 requires the expert to calculate Earnings in accordance with clauses 2.1, 2.2, 2.3(a), and by normalising as described in clause 2.3(b)(vi).' "Declare clauses 1.3 and 4.1(c) require the expert to decide all Contested Matters in the Vendors' Report served 10 October 2023, including...