CLARK V LIBRA DEVELOPMENTS LIMITED AND RUSSELL ERNEST HYSLOP AS TRUSTEE OF THE HYSLOP FAMILY TRUST CA482/2013 [2013] NZCA 618

CLARK V LIBRA DEVELOPMENTS LIMITED AND RUSSELL ERNEST HYSLOP AS TRUSTEE OF THE HYSLOP FAMILY TRUST CA482/2013 [2013] NZCA 618 [11 December 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA482/2013[2013] NZCA 618BETWEEN LINDSAY ALLAN CLARKAppellantAND LIBRA DEVELOPMENTS LIMITEDFirst RespondentRUSSELL ERNEST HYSLOP ASTRUSTEE OF THE HYSLOP FAMILYTRUSTSecond RespondentHearing: 14 November 2013Court: Stevens, Miller and Dobson JJCounsel: L A Andersen for AppellantP B Churchman QC for RespondentsJudgment: 11 December 2013 at 3.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondents one set of costs on a standard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] In a judgment delivered in February 2005, the High Court declared that a partnership had existed between the present appellant (Mr Clark) and the first respondent (Libra) in relation to a range of development projects that the parties had pursued in the period from 1997 to 2002.1[2] In subsequent judgments, a number of which have been appealed to this Court, Mr Clark has been ordered to account to Libra for its share of that partnership.2 For the purposes of that accounting, Chisholm J deemed the partnership to have been wound up on 30 June 2010.3[3] The partnership had a 50 per cent interest in a company that owns a hotel in Dunedin, Cargill Hotel 2002 Limited (CH2002). There have been further disputes as to the basis on which the account-taker should calculate Mr Clark's liability to account to Libra for Libra's share of the partnership's interest in CH2002. In his lastjudgment in the proceedings, delivered on 27 June 2013, Chisholm J determined a sequence of questions as to how the account-taker was to proceed with that task.4The present appeal determines Mr Clark's challenge in respect of two of thosequestions.[4] The remaining 50 per cent of CH2002 is owned by a company in the Scenic Circle group of companies. A heads of agreement (HoA) regulating the relationship between the shareholding interests provided for shareholder funding by each of Mr Clark's interests, and the Scenic Circle interests.5 Interest was to be payable onthe advances from Mr Clark's interests at six per cent per annum. However, therewas also an obligation that net profit from the hotel's operation would be applied torepay those advances. The clear intention was that these were to be repaid as soon as possible.1 Libra Developments Ltd v Clark (2005) 2 NZCCLR 305 (HC).2 Libra Developments Ltd v Clark HC Dunedin CIV-2002-412-39, 10 June 2008; appeal by Clark struck out in Clark v Libra Developments Ltd [2008] NZCA 416; Libra Developments Ltd v Clark HC Dunedin CIV-2002-412-39, 21 March 2011; appeal allowed in Clark v Libra Developments Ltd [2011] NZCA 493, (2011) 9 NZBLC 103,378.3 Libra v Clark HC Dunedin CIV-2002-412-39, 21 March 2011 at [214]–[215].4 Libra Developments Ltd v Clark [2013] NZHC 1578.5 The HoA foreshadowed the completion of a shareholder agreement, but that has not occurred and the HoA continues to regulate the relationship between the shareholders in CH2002.Reserve for furniture, fittings and equipment[5] Another company in the Scenic Circle group had a contract with CH2002 to operate the hotel. The Management, Reservations and Marketing Agreement (the management agreement), concluded in June 2005, granted that Scenic Circle company the right to operate the hotel for a period of 25 years, with a right of renewal for a further 25 years. The management agreement required the owner to provide fixtures, fittings and equipment (FF&E) for the operator to operate the hotel business. The owner was obliged to provide for the expenditure needed to maintain FF&E in the following terms:39.3.1 The Owner shall keep and maintain in good working order and condition and if necessary replace or repair any of the Furniture Fittings and Equipment as and when that shall be necessary. The Operator shall undertake such duties on behalf of the Owner and subject to the availability of funds in the FF&E Reserve Account, is irrevocably authorised to undertake such maintenance repair or replacement which the Operator in its sole discretion, considers necessary or desirable from time to time.[6] The owner was obliged to establish a separate interest-bearing bank account (the FF&E reserve account) into which FF&E contributions were to be deposited. Such contributions were defined as meaning three per cent plus GST of gross revenue for the first three years and thereafter five per cent plus GST of the gross revenues generated by the hotel business.[7] The determination in Chisholm J's last judgment that has led to this aspect ofthe present appeal is whether he was correct when he held that the account-taker was to disregard the FF&E obligation.6Should the FF&E reserve be disregarded?[8] Financial statements had been prepared for CH2002 by Mr Stuart McLauchlan, who is a director of CH2002 and of the Scenic Circle parent company. Mr McLauchlan is also Mr Clark's accountant. The amount included in thosefinancial statements to 30 June 2010 for FF&E had accumulated to $864,240. Mr Andersen accepted in the argument before Chisholm J that although included as a6 Libra Developments Ltd v Clark, above n 4, at [27].liability in the financial statements, it was not necessary for the account-taker to treat that item as a current liability when valuing the shares in the company.7[9] The reality is that an FF&E reserve account has not been created or maintained. That appears to reflect a degree of informality, most likely contributed to by the operator being associated with the company that has a 50 per cent interest in the owning company. If that relationship had been on fully arm's length terms, itseems it would be more likely that the operator would have insisted on the ownermaking regular provisions for FF&E expenditure to protect the operator's interest inthe on-going quality of the FF&E. Instead, to the extent that FF&E expenditure was required, it has been funded out of operating revenues. It appears there has been no complaint by the operator about that practice.[10] The first aspect of Mr Andersen's challenge to Chisholm J's direction that theaccount-taker should disregard the FF&E obligation was that its relevance should notbe absolutely disregarded in assessing the value of the partnership's shareholding ona going concern basis. Mr Andersen argued that in a willing buyer/willing seller situation, the parties might well recognise the commitment the owner had to fund FF&E under the management agreement as reducing the price that would otherwise be paid for the shares because of the prospect that the owner would have to fund such expenditure in later years. Mr Andersen did not contend for a precise formula for quantifying such a future liability, or the manner in which the contingent liability should be taken into account by the account-taker. Rather, he argued that it was wrong in principle for the Court to exclude the prospect that the account-taker might have regard to this prospective contingent liability in some way, depending on the view of the matter adopted by the account-taker.[11] It is significant that in the period in question, the FF&E obligation has been met without the need to create or utilise a specific reserve. We agree with Chisholm J's observations that it is highly speculative as to when an FF&E reservewill be required and, if at all, how much it would be. If the parties were to continue7 There had been a dispute at the hearing before Chisholm J as to whether that acknowledgement constituted a material change of stance on behalf of the appellant and, if so, when it had occurred: Libra Developments Ltd v Clark, above n 4, at [11]. It is not a point that assumed relevance on the appeal.with the present arrangements, the need might never arise. We also agree with Chisholm J that it is difficult, if not impossible, to reconcile the acknowledgement that the FF&E reserve should be removed as a liability from the financial statements to 30 June 2010, with the proposition that it should nonetheless be taken into account as a future liability.8[12] Mr Churchman QC urged us to consider Chisholm J's reasoning in thebroader context of the long-standing litigation that had clearly influenced the Judge'sapproach to the questions posed. The dispute had arisen in 2002, and since findings against Mr Clark of breach of fiduciary duty owed to Libra and Mr Hyslop, the processes for quantifying the consequences of those breaches have been challenged on all possible grounds. The Judge recognised a need to deal in pragmatic terms in giving directions that would achieve finality. The number of challenges to the proposed quantification process led Chisholm J to observe that " the history of this matter requires the Court to take a firm hand".9[13] We agree with the Judge's concern to facilitate finality. Although thatconcern could not intrude into what is otherwise the correct legal approach to the taking of an account that will reflect the quantum of an award for Mr Clark'sbreaches of fiduciary duty, it might influence the prospect of revisiting the validity of the approach that had previously been directed, when dealing with matters of detail such as the notional FF&E reserve.[14] The reality was that CH2002 had operated for years up to 30 June 2010 without an FF&E reserve. The company's operation since then had not suggested either a present need or a reliable basis for projecting how such a reserve might be calculated within any time frame that would be relevant to valuing shares in the company as at 30 June 2010. Accordingly, the Judge was correct to order that the relevant valuation approach was to disregard it.8 Libra Developments Ltd v Clark, above n 4, at [28].9 At [20] and [33].Should the FF&E reserve be disregarded on interest calculations?[15] In a discrete argument on this part of the appeal, Mr Andersen focused on a further consequence of the direction that the account-taker should disregard the item for FF&E, as that would affect an additional aspect of the accounting required to quantify Mr Clark's liability to Libra.[16] The provision in the HoA requiring the hotel owner to pay interest on the shareholder advances from Mr Clark's interests had also not been complied with inthe period up to 30 June 2010. Chisholm J's March 2011 judgment addressed theconsequences of these circumstances for the taking of an account to quantify Mr Clark's liability to Libra for its share of the partnership. His judgment notionallyallowed interest on the shareholder advance at six per cent per annum, subject to notional repayments having been made, reducing the shareholder advance at the earliest possible date, in accordance with the relevant provision in the HoA.10[17] Mr Andersen's argument was that the FF&E reserve should still have beentaken into account for the more confined purpose of reconstructing the point in time at which management of the hotel business, if it had occurred in strict accordance with the provisions of the HoA, would have seen Mr Clark's shareholder advancereduced and repaid. He argued that if there had been full compliance with the processes directed by the HoA and the management agreement, then the amount available for repayment of the shareholder advance by Mr Clark's interests wouldonly have been arrived at after deducting the extent of the FF&E reserve, as it should have been calculated in terms of the formula in the HoA.[18] It was apparent from both Mr Andersen's written and oral submissions thatthe argument for recognition of FF&E in this specific context was driven by a sense of unfairness on Mr Clark's part, that would result from the account-taker failing to have regard to it. Deferral of repayment of Mr Clark's advances to CH2002produced a benefit for Mr Clark by way of the six per cent interest entitlement on a larger amount and for a longer period than would have occurred if the contractual arrangements had been adhered to. However, while the reconciliation directed by10 Libra Developments Ltd v Clark HC Dunedin CIV-2002-412-39, 21 March 2011 at [178].the Judge would reduce Mr Clark's net interest entitlement (to Libra's advantage),Libra also enjoyed the benefit of the alternative allocation of available revenues elsewhere instead. This arose because, to the extent external borrowings were repaid instead of the internal borrowings from Mr Clark, the reduction in debt lessened thecompany's external interest expense, and increased the value of the shares therebyincreasing the amount to be paid to Libra in respect of its interest in the partnership'sshareholding in CH2002. Mr Andersen protested at this "double-dipping" atMr Clark's expense.[19] The essence of Mr Andersen's argument on this point was that if the Judge was directing Mr Clark to account to Libra for its interest in the partnership on a notional basis that assumed the terms of the HoA and management agreement had been performed on their terms, then all aspects of the reconstruction should occur on that basis. He submitted that selectively adopting some notional components that reflected what would have happened if the agreements were strictly enforced, but disregarding others, would produce a valuation that was unfair to Mr Clark.[20] There is not a "double-dipping" as argued for Mr Clark because, in the absence of a reserve for FF&E, expenditure that would otherwise be charged to thataccount has been funded out of the hotel's operating account, thereby affecting theprofit that would be calculated after taking that expenditure into account. In the years up to 30 June 2010, the profitability for the operation has not been overstated because any expenditure required for the FF&E has been funded out of the operating account. To the extent that an item ought prudently to have been recognised for FF&E expenditure in future years, that should not logically impact upon the quantification of an ownership interest exiting the business as at 30 June 2010.[21] In his judgment, Chisholm J recorded in a footnote that an analysis of the company's ledgers undertaken by Mr Hyslop (the second respondent) identified expenditure on FF&E in the relevant years as follows:2006 $130,2462007 $151,6772008 $183,5432009 $157,5492010 $143,581Total $766,596[22] A comparison between this total purportedly spent on FF&E, and the accumulated notional item in financial statements for the FF&E replacement fund, suggests that the interest on the difference between those amounts ($864,240 –$766,596 = $97,644) is insignificant in the overall dispute. That was certainly Mr Churchman's submission on the point .[23] However, Mr Andersen did not accept the validity of that comparison. First, he submitted that Mr McLauchlan's calculation of the FF&E replacement fund wason an inadequate basis because for a number of years it continued to apply at three per cent of operating revenue, when it ought to have been calculated at five per cent. Secondly, he disputed the accuracy of Mr Hyslop's allocation of expenditure that hadbeen incurred, as all falling within the definition of FF&E. Mr Andersen suggested that a distinction had to be drawn between repairs and maintenance involving FF&E in the hotel, and the forms of expenditure on upgrading and replacement to which the FF&E reserve was intended to apply. That was not a dispute we could assess. Even if Mr Hyslop's calculations had to be substantially discounted, and an allowance wasmade for a proportionately larger reserve in more recent years, the difference between the amount spent on FF&E, and the extent of an FF&E reserve if it had been maintained pursuant to the management agreement, is still most unlikely to be material.[24] We are satisfied that the ruling that the FF&E reserve should be disregarded is also justified in respect of this discrete component of the account-taking.Allowance for taxation on recovery of depreciation[25] Mr Clark contended that the account-taker should be at liberty to recognise, as an influence on his workings, the prospect of a future liability for a claw-back of depreciation. This would arise in the event that the company sold the hotel for an amount in excess of the accumulated depreciation claimed as a deductible expense for income tax purposes. The income tax legislation provides for this concept of"claw-back" of the extent of the depreciation that is established as having beenover-claimed by the price at which the asset is sold.[26] Mr Andersen submitted that both valuers who provided an opinion on the point recognised the concept of a valuer taking into account the prospect of a future tax liability for depreciation recovered. In those circumstances, he argued that the Court should recognise the entitlement of the account-taker to have regard to that possible future contingent liability, at the account-taker's discretion. He did not goso far as to submit that the Court should have directed that it was mandatory for the account-taker to do so.[27] The notion was rejected by Chisholm J, essentially on the factual circumstances as he found them to be. He treated the possibility of taxation ondepreciation recovered arising as "remote in the extreme".11 The Judge was influenced by the duration of the management agreement between the owner (half owned by a company in the same group of companies as the operator) and the operator. Given the factual context, the Judge found: 12 it would be an irrelevant distraction in the valuation exercise and, as [thevaluer called for the respondents] noted, if it was taken into account by the account taker the matter would almost certainly return to the Court.[28] The Judge was satisfied that the likelihood of such a contingent liability crystallising was not a matter to be left to the professional judgement of the account-taker, and that the Court was better placed to make a judgment on whether it was a matter to which the account-taker could have regard. We see real merit in this approach.[29] When pressed in the course of oral argument, Mr Andersen conceded that the parties to a sale transaction in relation to the hotel would be extremely foolish to structure it in a way so as to trigger a claw-back of depreciation that has been claimed for income tax purposes. There are credible commercial alternatives to a discrete sale of the hotel building. Although Mr Andersen suggested that other considerations could influence the way in which a sale was structured, he did not11 Libra Developments Ltd v Clark, above n 4 at [41].12 At [41].elaborate on any likely circumstances where parties to such a transaction would need to forgo other options, and proceed with a sale in a form that triggered the claw-back of depreciation.[30] Given the extensive consideration of the ownership arrangements in the course of the very protracted litigation, it was entirely open to the Judge to dismiss the prospect as remote in the extreme. It is an assessment that we agree with. It follows that there was no error in the Judge directing that that remote contingency was one that the account-taker was to disregard.[31] All aspects of the appeal are dismissed. Having reflected on all the arguments Mr Andersen advanced in writing and orally, we are satisfied that this was an appeal without merit. It is now overdue for the parties to allow the account-taker to get on with the task that the Court has directed to be undertaken.Costs[32] A further component of the appeal was to challenge the terms on which costs were ordered by Chisholm J, if other aspects of the appeal were successful. That contingency does not arise. Counsel were agreed that if the appeal was unsuccessful, costs in this Court should follow the event. The appellant must pay the respondents one set of costs on a standard appeal on a band A basis and usual disbursements.Solicitors:Albert Alloo & Sons, Dunedin for AppellantKensington Swan, Wellington for Respondents