McKensey v Hewitt [2007] NSWSC 307

McKensey v Hewitt [2007] NSWSC 307

The consent orders required the clause 16 valuation to be determined on a willing but not anxious buyer and willing but not anxious seller basis and to be based solely on Forsythes (Old)'s trading results for the year ended 30 June 1994, but they did not prescribe a proportional or single valuation methodology. A one valuation approach would make order 1(ii) meaningless or contradictory. Because clauses 10 and 16 each contemplated a valuation and the consent orders had to give effect to both order 1(ii) and order 1(iii), Mr Vella's separate valuation was not shown to be contrary to the consent orders.

Jurisdiction
Australia
Judgment Date
05 April 2007
Procedural Posture
Notice of Motion in Equity Division Proceedings Concerning Construction of a Separation Agreement and Court Orders / Judgment on Notice of Motion Filed on 7 August 2006
Outcome
Notice of motion dismissed with costs
Legal Topics
['construction of Agreement' 'construction of Consent Orders' 'valuation of Goodwill' 'partnership Separation Agreement']
['equity' 'judgments and Orders' 'contract'] ['construction of Agreement' 'construction of Consent Orders' 'valuation of Goodwill' 'partnership Separation Agreement']

Case Brief

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Procedural Posture

Notice of Motion in Equity Division Proceedings Concerning Construction of a Separation Agreement and Court Orders / Judgment on Notice of Motion Filed on 7 August 2006

Legal Issues

  1. 1 ['Whether the valuation of the goodwill attributable to clients taken by the retiring partners was made in accordance with clause 16 of the separation agreement as interpreted by the consent orders.' 'Whether the consent orders required one valuation only, with the clause 16 value calculated proportionately from the clause 10 valuation, or permitted a separate valuation using a different methodology.']

Ratio Decidendi

The consent orders required the clause 16 valuation to be determined on a willing but not anxious buyer and willing but not anxious seller basis and to be based solely on Forsythes (Old)'s trading results for the year ended 30 June 1994, but they did not prescribe a proportional or single valuation methodology. A one valuation approach would make order 1(ii) meaningless or contradictory. Because clauses 10 and 16 each contemplated a valuation and the consent orders had to give effect to both order 1(ii) and order 1(iii), Mr Vella's separate valuation was not shown to be contrary to the consent orders.

Court Disposition

Notice of motion dismissed with costs

Orders

  • ['The notice of motion is dismissed with costs.']