In the matter of ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2018] NSWSC 1415

In the matter of ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2018] NSWSC 1415

The Court declined to make advance orders defining Fair Value or predetermining disputed valuation adjustments because those matters were for expert evidence and submissions at the valuation hearing. A staged timetable was preferable to simultaneous exchange because simultaneous expert reports risked being at cross-purposes if different assumptions and methodologies were used. Mr Kielt, as proponent of the buy-out, was ordered to serve valuation evidence first, followed by Dr Najjarine and then reply evidence. The proposed access order was refused because both directors jointly controlled the company documents, the order would inappropriately place responsibility and costs on Mr Kielt...

Jurisdiction
Australia
Judgment Date
14 September 2018
Procedural Posture
Corporations Proceedings Concerning Winding Up, Oppression and Share Buy Out Relief / Post Judgment Directions as to Valuation Evidence and Preparation for Further Hearing
Outcome
Directions made for the filing and service of expert and lay evidence on valuation of shares in the ICB Companies and to prepare the matter for further hearing.
Legal Topics
['winding Up' 'oppression' 'share Buy Out' 'valuation of Shares' 'expert Evidence' 'slip Rule Corrections' 'costs']
['equity' 'corporations Law'] ['winding Up' 'oppression' 'share Buy Out' 'valuation of Shares' 'expert Evidence' 'slip Rule Corrections' 'costs']

Case Brief

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Procedural Posture

Corporations Proceedings Concerning Winding Up, Oppression and Share Buy Out Relief / Post Judgment Directions as to Valuation Evidence and Preparation for Further Hearing

Legal Issues

  1. 1 ["Whether orders should be made at this stage defining the value at which Mr Kielt should buy Dr Najjarine's shares in the ICB Companies as Fair Value and specifying valuation assumptions or adjustments." 'What timetable and process should be adopted for expert and lay evidence as to the valuation of the shares in the ICB Companies.' 'Whether Mr Kielt should be directed to provide Dr Najjarine and his advisers with access to records, staff and premises of the ICB Companies for valuation evidence.' 'Whether the proposed corrections to the earlier judgment under the slip rule should be addressed immediately.' 'Whether costs of the proceedings to date should be determined before the valuation stage is completed.']

Ratio Decidendi

The Court declined to make advance orders defining Fair Value or predetermining disputed valuation adjustments because those matters were for expert evidence and submissions at the valuation hearing. A staged timetable was preferable to simultaneous exchange because simultaneous expert reports risked being at cross-purposes if different assumptions and methodologies were used. Mr Kielt, as proponent of the buy-out, was ordered to serve valuation evidence first, followed by Dr Najjarine and then reply evidence. The proposed access order was refused because both directors jointly controlled the company documents, the order would inappropriately place responsibility and costs on Mr Kielt...

Court Disposition

Directions made for the filing and service of expert and lay evidence on valuation of shares in the ICB Companies and to prepare the matter for further hearing.

Orders

  • ["By 4pm on 19 September 2018, the Plaintiff and the Defendant each provide, or they together provide, a copy of the Court's judgment dated 29 August 2018 to the Australian Taxation Office." "By 4pm on 19 September 2018, the Defendant advise the Plaintiff and the Associate to Black J whether he accepts the proposed...