Ceccattini v ICM 2000 P/L

SALIENT FACTS 6 On 30 October 1997, by consent, the court ordered that the valuation of units in each of two trusts, namely the ICM Unit Trust and the Plumpton Unit Trust ("the Trusts") be referred to Mr Frank Fischl, then a partner of the accounting firm of Price Waterhouse & Co, for an enquiry and report, pursuant to Pt 72 of the Supreme Court Rules. Subsequently, as becomes relevant, Price Waterhouse & Co merged with Coopers & Lybrand so that Mr Fischl became a partner of the merged firm. This as he reveals in his report, gave him access to the latter's receivership files. The words "as such" make clear that the merger gave him access to files to which he would otherwise not have had access, or at any rate such ready access. Without such access, he might well have had to follow a more formal process to gain access to this material. That in turn might have prompted the Referee to advise the parties of that step at the time; they could have then made any submissions before the Referee finalised his report. 7 On 30 October 1997, by consent, the court further ordered that: · the valuation be as at 1 August 1995 ("the valuation date"); · in valuing the said units the referee shall not increase or decrease the value attributed to the units by reason of the units constituting a minority unitholding in the Trusts; and · for the purpose of valuation, the Trusts shall be deemed to include all of the assets that were purchased from the Receiver and Manager of Mercap Pty Limited. (Receiver and Manager Appointed) ACN 003 556 376 ("Mercap") and Industrial Concrete Manufacturing Pty Limited (Receiver and Manager Appointed) ACN 003 563 626 ("ICM") by the Trusts and making due allowance for such liabilities as were incurred by the Trusts to acquire those assets. 8 In a letter to Mr Fischl from the Defendants' solicitors, Smits Leslie, dated 29 October 1997 which was also signed for and on behalf of the Plaintiffs by their solicitors, Ross Koffel Solicitor, Mr Fischl was to "value the relevant Units on the basis that they represent 35% of all of the Units on issue in both of the Trusts". And, it was said, "there is no necessity to break down the attributed value as between any of the Plaintiffs or their associates, i.e. their unitholdings are to be valued in one line and there is no need to take account of any changes in the unitholdings, i.e. it can be assumed simply that [Mr Fischl] is required to value 100% of the net trust assets (trust assets minus trust liabilities) and to apply 35% of that value to establish the value of the relevant Units". 9 The referee reported on 12 March 1999 and concluded (paragraph 2) that the fair market value of the Plaintiffs' thirty-five per cent interest in each of the Trusts as at 1 August 1995 was nil. Reasons for that conclusion are set out in sections 5 to 9 of the report. 10 To understand the task before the referee, it is necessary to appreciate that, in the manner described below, the two Trusts acquired their principal assets by purchasing the business and assets conducted by the two companies then in receivership, Mercap Pty Limited and ICM 2000 Pty Limited. This was a business of manufacture and sale of pre-cast concrete panels with associated real estate (the Plumpton Property). Set out below and taken from the report, are the salient facts concerning that acquisition of assets and undertaking. "3.1 Prior to 3 July 1995 ICM and Mercap had conducted the business of the manufacture and sale of precast concrete panels from the property at Plumpton referred to in paragraph 3.5 below ("the business").

3.2 At all material times the Commonwealth Bank of Australia ("CBA") held an Equitable Mortgage Debenture over the assets and undertaking, whatsoever and wheresoever, existing and future, of Mercap and ICM.

3.3 On 18 April 1995 the CBA appointed Messrs Anthony Gardiner Sherlock and Martin Russell Brown of Coopers & Lybrand to act as Receivers and Managers (collectively "the Receivers and Managers" or individually "the Receiver and Manager") of the respective assets and undertakings of Mercap and ICM.

3.4 On 22 May 1995 Mr Andrew J Love of Ferrier Hodgson was appointed liquidator of Mercap and ICM by the Supreme Court of New South Wales.

3.5 On 3 July 1995 the former ICM 2000 Pty Limited company ("the Original Trustee") purchased from Mercap, on certain terms and conditions, the real estate comprised in Folio Identifier 2/23723 which otherwise has the residential address of 202 Power Street, Plumpton in the State of New South Wales ("the Plumpton Property") for a consideration of $475,000. The relevant contract for sale was completed on 16 October 1995.

3.6 Simultaneously (on 3 July 1995), the Original Trustee purchased certain plant and equipment from Mercap for a consideration of $450,000. That purchase was also completed on 16 October 1995.

3.7 The said purchases were funded totally by borrowings by the Original Trustee as follows: (i) $570,000 was advanced to the Original Trustee by Expolab Pty Limited; and

(ii) the balance required for settlement of $268,379.56 ($838,379.56 minus that $570,000) was provided by Westpac Banking Corporation. 3.8 On or around 1 May 1995, the Original Trustee purchased from ICM the benefit of work in progress at the date of purchase, for a consideration of $250,000." 11 In relation to paragraph 3.3 above and 3.6 above certain additional material appears in s3 of the report but it is not necessary specifically to note that for present purposes. 12 The assets in question comprised real property, plant and equipment, work in progress and, if it existed at all, goodwill. The Plaintiffs and Defendants differed as to the valuation to be attributed and each submitted to the Referee their own expert's valuation, referred to as the Vella Report for the Plaintiffs and the McGrane Report for the Defendants. The Referee chose valuations at the lower end of the spectrum and thus favoured the Defendants' contentions. I now set out those facts which bear upon the potential significance of the receivership files in determining that value. That potential significance derived from the fact that the receivers only elicited one offer, namely that from Mr Wong, who was associated with the eventual purchaser, as I explain. 13 Paragraph 5.1 of the report provided as follows: "5.1 My opinion in paragraph 4.10.5 above was that there would not have been sufficient future maintainable earnings, if any, as at 1 August 1995 such that the capitalisation of those earnings would exceed the net underlying assets of the business. It must therefore follow that there would not have been any value in the goodwill of the business at the time. This is consistent with the fact that the Receiver and Manager, who had advertised the business for sale, was unable, not surprisingly in my opinion, to achieve a value for the goodwill. Indeed, shortly after his appointment, he ceased business and all manual and sub-contract labour was terminated." 14 It is then said that a number of interested parties including a Mr Wong, were circulated by the receivers with a "business for sale" information memorandum dated April 1995. Notwithstanding that further inquiries received from some of the parties so circulated, "no offers were forthcoming other than from Mr Wong"; see paragraph 5.4. 15 Thus it was said (at paragraph 7.6) that, "there can be no better indication of value of the plant and equipment than that ($450,000) which was realised by the Receiver and Manager after having advertised the business for sale and not having received any offer other than from Mr Wong." This lead to the value being placed on plant and equipment as at 1 August 1995 of $450,000 (see paragraph 7.7 of the report). 16 I should explain that Mr Wong is a principal of ICM 2000 Pty Limited and thus was associated with the companies whose businesses were disposed of and also was associated with the trusts which were the purchasers. That, with the absence of any competing bids elicited by the receivers' efforts, clearly bears upon the valuation of the 35% interest in the trusts' units. The Plaintiffs were not effectively contradicted in their contention that the Referee, in reviewing the receivership files, thus had regard to the record of events potentially significant as to the valuation in which the receivers were directly involved; this included in particular their advertisement of the sale, preparations for sale generally and the sale itself. That they received no offers other than from Mr Wong is potentially affected by how vigorously the receivers pursued these steps. In saying that, I have no evidence before me to suggest that they did not do all that they reasonably could. But that could be verified, one way or the other, inter alia by reviewing the receivers' files; the Plaintiffs complain that they were denied the opportunity to participate at all in that process. 17 Thus it appears that the principals of the two Trusts were the same as for the original companies with Mr Wong being thus associated on both sides of the transaction. I should also note that both the Plaintiffs and the Defendants have by way of submission, put forward competing valuations to the Referee, being the valuation referred to as "the Vella Report" and "the McGrane Report. Those reports as well as a draft statement of facts and issues were thus before the Referee. Other materials before the referee are outlined in the Report.

THE LEGAL QUESTION - Breach of the rules of natural justice: procedural fairness ? 18 I now turn to the critical issue in the present proceedings. Appendix A to the Referee's report sets out under the heading "Sources of Information" the items earlier referred to and various other documents and concludes with the paragraph I have set out in 2 above. 19 I earlier quoted that paragraph in full in order to give its context. The particular portion complained of by the Plaintiffs is the portion commencing with the words "as such" and concluding with the words "pre-cast concrete industry". Essentially the Plaintiffs' case is that before the Referee handed down his report, and without informing the Plaintiffs (or the Defendants), he inspected and relied upon documents relevant to the valuation of the assets of the Trust over and above those of which the parties were aware. It is then said that this procedure denied to the Plaintiffs any opportunity to inspect the documents, adduce evidence, or make submissions as to their effect; for example that they were "inconsistent with" the Referee's conclusions otherwise drawn. That procedure is said to constitute a clear breach of procedural fairness and denial of natural justice; Kioa v West (1985) 159 CLR 550 at 582, Re JRL; ex parte CJL (1986) 161 CLR 342 at 350. 20 The Plaintiffs' cite, and I adopt, the following passage from the judgment of Rogers CJ Comm D in Telecomputing PCS Pty Ltd and others v Bridge Wholesale Acceptance Corporation (Aust) Ltd (1991) 24 NSWLR 513 at 523 as reflecting well-settled principle, as applicable in this context: "It is established, by judgments by each of the judges of the Commercial Division, that referees are required to afford to parties, natural justice. What natural justice may require in a given case, may vary substantially. There is no better guide, however, than the test of fairness. Fairness demands that each party be afforded a proper opportunity of putting before the referee particulars of the contentions relied upon and an opportunity to comment, not just on the information adduced by the other side, but also any information on contentious matters which may have been gathered by the referee. Further it means that a referee should not form a concluded opinion, or close his or her mind to the contentions of the parties before all the evidence is in." 21 In reaching that conclusion, Rogers CJ Comm D was dealing with a referee required to perform his functions under Pt 72 r8, para (b) of which providing: "the referee, in conducting proceedings under the reference, is not bound by rules of evidence but may inform himself or herself in relation to any matter in such manner as the referee thinks fit." 22 That rule is to be read with the provisions of the "Usual Order for Reference" contained in Practice Note 100, in particular para 4(c). This provides that the "referee consider and implement such manner of conducting proceedings under the reference as well, without undue formality or delay, enable a just determination to be made including, if the referee thinks fit:

(iv) communication with experts retained on behalf of the party." 23 However the Plaintiffs contend, in my judgment correctly, that reliance cannot be placed upon Pt 72, r8 as giving a licence not just to refer to additional material in the Referee's discretion, but also, when doing so, to fail to inform the parties so that "each party be afforded a proper opportunity of putting before the referee particulars of the contentions relied upon and an opportunity to comment, not just on the information adduced by the other side, but also any information on contentious matters which may have been gathered by the referee." (See Plaintiffs' written submissions.) 24 Clearly enough if the information gathered by the Referee is not contentious, or is peripheral, I do not consider that such category of information need be submitted to each party for submissions. That laborious process would undermine the expeditious resolution of disputes to which the referee procedure is directed. But that was not the case here for reasons I elaborate. 25 I turn to what was said by Gleeson CJ in Super Pty Ltd v SJE Formwork (Aust) Pty Limited (1992) 29 NSWLR 549 at 563: "Subject to what has just been said, it is undesirable to attempt closely to confine the manner in which the discretion is to be exercised: cf Nicholls v Stamer (1980) VR 479 at 495 per Brooking J. The nature of the complaints made about the report the type of litigation involved, and the length and complexity of the proceedings before the referee, may all be relevant considerations. The purpose of Pt 72 is to provide, where the interests of justice so dictate, a form of partial resolution of disputes alternative to orthodox litigation, and it would frustrate that purpose to allow the reference to be treated as some kind of warm-up for the real contest. On the other hand, if the referee's report reveals some error of principle, some absence or excess of jurisdiction, or some patent misapprehension of the evidence, that would ordinarily be a reason for rejecting it: cf Jordon v McKenzie (1987) 26 CPC (2d) 193. So also would perversity or manifest unreasonableness in fact-finding. As to the last mentioned matters, I refer again to the history of the rules and to Buckley (v Bennell Designs & Constructions Pty Ltd (1978) 140 CLR 1.)" 26 Denial of natural justice is cognate with "perversity or manifest unreasonableness in fact-finding". The critical issue here is the nature of the information that the Referee considered and how it bore, or potentially may have borne, upon the Referee's report. I have earlier dealt with that, but elaborate below on certain aspects. 27 The Defendants first attempted to deny there was any room for the application of the requirement of fairness where the relevant Supreme Court Rules permitted the referee to inform himself or herself in relation to any matter in such manner as the referee thinks fit. However, they did not press that contention in light of the decision in Telecomputing PCS Pty Ltd and others v Bridge Wholesale Acceptance Corporation (Aust) Ltd (supra), where quite clearly those Rules did not prevent such a principle of fairness being applied in the manner I have described. 28 Clearly enough, what transpired is that by reason of the adventitious circumstance that Price Waterhouse and Coopers & Lybrand had merged on 1 July 1998, the Referee became a partner of the merged firm. He was thus able to avail himself of the opportunity to review relevant files of the receivership conducted by Mr Sherlock and Mr Brown of Coopers & Lybrand. I am not of course suggesting that there was anything improper in so doing. One may trust the independence of the Referee in the present circumstances, notwithstanding that the merger latterly brought him into partnership with the receivers. Nonetheless information in the present case which the Receiver's files would have revealed would necessarily include what is highly relevant, namely the efforts made by the Receiver to find purchasers and the responses to those efforts. Though the Referee has stated elsewhere in his report that the only offer received was from Mr Wong that of itself should not deprive the Plaintiffs of the opportunity of testing to the extent reasonable the information which would have been thus made available from the Receiver's files in the way I have indicated. It may be that at the end of that process nothing would have emerged which would lead to any different conclusion than the Referee reached, but equally that cannot be assumed. 29 What needs to be emphasised is that significance and its consequences is not diminished by the fact that the Referee reviewed these files only after having reached his conclusions. The very fact he saw fit to refer to the files means they had a potential significance, though in the end he said they simply confirmed conclusions already reached. That can be tested by assuming that instead of being confirmatory they negated a conclusion earlier reached. 30 The Defendants however contended that the Referee's actions in consulting the Receivers' files could have had no effect upon the final outcome as he had already reached his conclusions and that this negated any conceivable unfairness. But the Plaintiffs correctly point to the fallacy in that conclusion in these terms (see the Plaintiffs' written submissions of 20 April 1999): "11.1 The Referee's own words dictate that material in the files corroborated for him the views he held. Necessarily, that must mean that the documents affected the process by which he reached his ultimate decision.

11.2 The relevance of the material is demonstrated by the Referee's references in his Report [e.g. paras 5.1, 6.4, 7.6] to steps taken by the Receivers in selling the assets to be valued.

11.3 The very fact that the Referee consulted the material "for the purposes of satisfying" himself as to his conclusions illustrates that his decision-making process was not then at an end, and that he did not regard it as at an end.

11.4 Alternatively, even if one were to construe the Referee's words at p.27 as expressing his view that the material did not affect his decision, that would merely be his view. It does not follow that the Plaintiffs, had they seen the material, would have shared the Referee's interpretation of it; nor does it mean that they would not have sought to have put before the Referee other material, and/or make relevant submissions." 31 Finally, the Defendants contended that the making available in Court, as they did, of the Referee for cross-examination, and the relevant files for inspection, "renders it impossible to give any credence to the Plaintiffs' submissions that they may have been in some way adversely affected"; see the Defendants' written submissions of 20 April 1999 at page 9 para 5(k). 32 But this presupposes first that there remains an onus on the Plaintiffs, having demonstrated that the Referee has consulted additional materials which bear a direct relevance upon the valuation, to demonstrate also that such consultation would have made a difference to the Referee's decision or else simply accept the Referee's say-so that there was nothing inconsistent. That cannot be the position for if it were this would defeat the whole purpose of the need for procedural fairness in advising parties when material of that sort is to be consulted by the Referee. That is not to veto the consultation. Rather it is to permit the parties to make submissions and submit relevant further evidence as to its significance, provided these remain genuinely relevant to the questions before the Referee. 33 There is indeed a fundamental difficulty in the Defendants' suggestion that the Referee should be subjected to cross-examination as to his reasoning process. Though the Referee is not a judicial officer, clearly enough the Referee performs functions which are integral to the judicial decision-making process; see Najjar v Haines (1991) 25 NSWLR 224 per Kirby P at 223-4. It was for that reason, that the majority (Kirby P and Rogers AJA) concluded that the referee was entitled to immunity from suit on that basis. Clarke JA would have allowed an immunity "at least where there is no question of fraud or good faith involved" (at 250). 34 This is not because a referee is not a competent witness. Rather it is because the Referee is not a compellable witness, or at any rate not compellable save in exceptional circumstances clearly not present here. Compare the even more absolute position of a judge. In Hennessy v Broken Hill Pty Co Ltd 38 CLR 342 at 349 the joint judgment of Knox CJ, Gavan Duffy and Starke JJ concluded: "Even Judges are competent witnesses, though they may not be compellable to testify as to matters in which they have been judicially engaged; but their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers."

35 The real reason why it would be quite inappropriate for the Referee to be submitting himself to cross-examination is based on the well-settled stricture against tribunal members or, as here, those exercising a judicial or quasi-judicial function, from taking an active part in proceedings such as for disqualification or concerning an alleged breach of the rules of natural justice. Attempts to do so are properly discouraged by the courts on the basis that if the person concerned becomes actively involved in the proceedings, there is a risk that his or her impartiality in the subsequent proceedings may be endangered; R v Australia Broadcasting Tribunal ex parte Hardiman (1980) 144 CLR 13 at 35-5; Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629 at 639-641. 36 Here, it is clear that the Referee has ongoing functions; he is not functus. Indeed the effect of my orders is to require the Referee to consider again the matter referred to him. It would indeed be inappropriate for the Referee, whose impartiality is crucial to the judicial process with which he is connected, to have earlier given evidence for either side or to have attempted to justify a position that he might have taken and being cross-examined in that regard; see generally, Wentworth v Wentworth (NSWSC 317, Santow J, 9 April 1999, unreported) at paras 26, 40, 43, 47 and 48. That is the reciprocal of immunity. 37 Indeed there is a further difficulty which the circumstances attending my orders brought out. That was that it could not be said with confidence that the files brought to Court by the Defendants as the receivership files were reliably all of the files consulted by the Referee. Thus to invite the Plaintiffs to inspect those files and then to indicate what in those files they relied upon, in order to satisfy an incorrectly imposed onus to show that the files affected the decision of the Referee, would be both inappropriate and likely to lead to error. The orders that I have made ensure that the Referee identifies reliably the documents inspected by him from the relevant files of the receivership and for the parties in turn to be able to submit any evidence and submissions in respect of those documents provided that "such evidence and submissions [are] directly relevant to the Referee's determination of the matter before him".

Conclusion 38 I am satisfied that there has in the present circumstances been a denial to the Plaintiffs of the proper opportunity of putting before the Referee particulars of the contentions relied upon and an opportunity to comment on the materials reviewed by the Referee in the relevant files of the receivership. I am further satisfied that this procedural unfairness can only be appropriately remedied by orders of the kind that I have earlier made.

ALLEGED LACK OF REASONS 39 The Plaintiffs have separately contended that the Referee failed to provide, in any manner such as exposed his reasoning process, reasons for the following conclusions: (i) that the business of ICM for the ten months ended 30.4.95 was not profitable [para. 4.10.4]

(ii) that on the balance of probabilities it is highly likely that the business was incurring losses, before interest [para. 4.10.4]

(iii) that little or no reliance can be placed on the records of ICM [para. 6.1]

(iv) that anyone taking over the contracts of ICM in the circumstances in which ICM found itself at the time, would have been assuming risks higher than would otherwise likely to have been the case and accordingly would have been looking for an otherwise higher return [para. 6.2].

(v) in reducing the value of real property from $800,000 to $475,000 the valuer failed to expose his reasoning process; see para 8.5. 40 The Plaintiffs then contend that these findings lead the Referee to reject the basis of valuations for which the Plaintiffs contended with the result that their reasonable or legitimate expectation of a sufficient explanation had not been met thus denying natural justice; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259 and 269. 41 In my opinion, the Plaintiffs' contentions involve a misunderstanding of the duty to give reasons. As was said by Samuels JA in John Strback v Narelle Newton (NSWCA, 18 July 1989, unreported): "…… there have been many cases in which it has been held that it is the duty of the Judge or magistrate to state his reasons. This does not mean that a judicial officer must give his reasons in every case. It is clear that there is no inflexible rule of universal application that reasons should be given for judicial decisions.

…… it is going too far to suggest that in every case a Judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments …… There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given." (cited with approval Xuereb and Anor v Viola and Ors (supra) at p.469B-D). 42 Similarly in Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 at 257 Rolfe A-JA at 257 observed: "In my opinion the law does not require that a Judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along a chain of reasoning to that conclusion." 43 This reasoning applies a fortiori to an expert referee. The Referee's findings are essentially of fact, in which the Referee necessarily must expose the general process of reasoning. But this is not required to the point where each step in the chain of reasoning to reach a factual conclusion must find justification in specific reasons. It is undoubtedly the case that the Referee here did expose his process of reasoning overall. The particular factual steps to his conclusions seized on by the Plaintiffs can in truth be said themselves to be reasons for the ultimate conclusion. They do not themselves require further justifying reasons. Such a process would stultify the whole purpose of expeditious resolution via a referee. Such findings do not, based on the principles I have earlier set out, require any more detailed justification than appears in the report itself. Conclusion 44 The Plaintiffs' second basis of attack, namely, insufficient exposure by the Referee of his reasoning in relation to the particular factual matters identified, is not made out.

OVERALL CONCLUSION 45 This reference should now proceed in accordance with the orders that I have earlier made, taking into account the matters stated in these reasons.

[ordered by Santow J on 21 April 1999] CECCATTINI and ANOR v ICM 2000 and ANOR No.2696 of 1997 Short Minutes of Order

a. Pursuant to Part 13 Rule 13(1)(c) of the Supreme Court Rules remit for further consideration by the Referee the whole of the matter referred for a further Report; and

b. Further direct the Referee to take into account in his further Report the evidence and submissions referred to in order 3 herein and my reasons, and

c. Note that the purpose of the further Report is to resolve whether the evidence and submissions referred to in Order 3 herein impact in any way upon the findings contained in the Referee's Report dated 12 March 1999 and if so, what the impact is.

Direct the Referee to provide to the Parties' solicitors by 12 noon on Tuesday 27 April 1999 copies of the documents inspected by him from the files of the Receivership of Mercap and ICM referred to in Appendix A page 27 of his Report.

Direct the parties to submit any evidence and submissions to the Referee by 10 May 1999 in respect of the documents provided pursuant Order 2 herein, or such further date, subject to there being no delay in relation to the time provided in Order 4, as the Referee may direct provided that such evidence and submissions must be directly relevant to the Referee's determination of the matter before him.

Direct the Referee to provide his further Report referred to in Order 1(a) herein on or before 28 May 1999 by delivering the same to the Registrar of the Equity Division of this Court and to the parties.

Stand over the Notice of Motion to 9.30 am on 10 June 1999 before his Honour Mr Justice Santow.

Plaintiffs' costs of the hearing before me to be paid by the Defendant.

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