Darling v Palm Springs Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

3491/01 MARK HAROLD DARLING v PALM SPRINGS LTD JUDGMENT - Ex Tempore 1 HIS HONOUR: This is an application made under Pt 38 r 8 of the Supreme Court Rules. That rule says: "Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the court may order that: (a) the matter be struck out; or (b) the affidavit be taken off the file." 2 The application is one which is made by the plaintiff, Mr Darling, and seeks to strike out large parts of affidavits which have been filed by the defendant, Palm Springs Limited. The case in which the application is brought is one where Mr Darling seeks rectification of an agreement for sale of shares which was made on 26 March 2001. That agreement for sale of shares is one whereby Mr Darling sold all the shares in Fountainhead Pty Ltd to Palm Springs Limited. 3 Mr Darling's case in the main proceedings is that there was a common intention that he should receive 19.95 million ordinary shares in Palm Springs but that by mistake the written share sale agreement said that he would receive 19.5 million shares. Mr Darling says that, also by mistake, he made application for 19.5 million shares and that that is the number of shares which were allotted to him. 4 It is common ground that there will need to be a trial concerning whether there was indeed a mistake of the kind alleged and whether, if there was, it leads to the relief which Mr Darling claims. 5 The dispute before me concerns whether, as well as Palm Springs being able to dispute whether there has been a mistake of a kind which leads to an order for rectification, Palm Springs should be permitted to retain on the file, in some cases the whole of certain affidavits, and in other cases parts of affidavits, which have been filed. Palm Springs asserts that it is entitled to retain portions of the disputed material in the affidavit on the ground that that material makes out a case of unclean hands which, if accepted by the court, would deprive Mr Darling of the relief of rectification which he seeks. 6 There are some common facts that are undisputed: Mr Darling owned all the shares in Fountainhead Pty Ltd; it is a company which operates in the bottled water industry. In late 2000 and early 2001 there were moves afoot within that industry for a merger of the interests of various of the smaller companies in the industry. Those moves culminated in the agreement of 26 March 2001 which is sued on and also in various other agreements entered at the same time whereby Palm Springs acquired shares in other companies in return for shares in Palm Springs itself. 7 The defendant gives evidence that various meetings were held in the latter part of 2000 between representatives of the companies which were ultimately to merge. There is evidence from Palm Springs that at a meeting in Adelaide on 16 November 2000 agreement in principle was arrived at between the intending merging companies that they would all accept shares in Palm Springs rather than cash in return for handing control of their respective businesses to Palm Springs. 8 There is also evidence put forward by the defendant which, if accepted, would make out a case that Mr Darling had engaged in some misrepresentations or breaches of fiduciary duty owed to his intending joint venturers including Palm Springs. Those misrepresentations or breaches of fiduciary duty relate to the circumstances in which another bottled water company, Lithgow Valley, came to be brought, in part, into the merger. There is evidence which, if accepted, shows that Mr Darling was well known to the proprietors of the Lithgow Valley business and that the joint venturers gave Mr Darling the task of buying the Lithgow Valley business for Palm Springs. In fact, Mr Darling did not buy the Lithgow Valley business for Palm Springs; instead he purchased a large proportion, but not all, of the assets of Lithgow Valley for his own company, Fountainhead. There is evidence which, if accepted, could show that Mr Darling was given the task of bringing Lithgow Valley into the merger in circumstances where he had certain riding instructions for conducting the negotiation with Lithgow Valley. Those riding instructions were that, if possible, he should organise the acquisition for a consideration consisting of shares in Palm Springs, that he should start out offering three million shares but could go up to four million shares if need be, and that if trying to buy the business for shares was not going to work he could offer to buy the business for cash, paying up to $1.1 million. 9 There is evidence which, if accepted, shows that Mr Darling did not even try to purchase the Lithgow Valley business for Palm Springs, that Mr Darling did not offer the owners of Lithgow Valley any shares in Palm Springs but, rather, purchased a large proportion of the assets of Lithgow Valley for Fountainhead for $1.1 million cash. There is also evidence which, if accepted, could show that Mr Darling made misrepresentations to his intending joint venturers, including Palm Springs, that he both initially had the opportunity to acquire the whole of the business of Lithgow Valley rather than merely part of it and later that he had actually acquired the whole of the business of Lithgow Valley rather than merely part of it. 10 In the defendant's affidavits there is evidence of an important meeting held on 21 December 2000 in Melbourne. It was attended by various of the joint venturers including Mr Darling. The defendant's case is that at this meeting Mr Darling said that he had acquired Lithgow Valley for $1.1 million for cash only and that he required Palm Springs to pay him that $1.1 million and an additional four million Palm Spring shares as the price for bringing the extra assets, the Lithgow Valley assets, into the merged company. 11 There is a common theme in the defendant's affidavits that this demand on Mr Darling's part was not received at all well by the meeting. There is some difference between the defendant's witnesses, however, about the detail of what happened as a result of the demand. 12 Mr Bowman says in par 21 of his affidavit: "There was some heated discussion and in order to maintain the merger and reach a compromise the directors reluctantly agreed to pay Mr Darling 30 per cent of $1.1 million and four million Palm Spring shares at 30 cents per share."

Mr Conn says in paragraph 21 of his affidavit: "Mr Shierlaw proposed that PSL would assume 30 per cent of the debt of $1.1 million and issue up to four million shares for Lithgow Valley, providing Mr Darling personally assumed responsibility for the balance (or 70 per cent) of the debt. This compromise was accepted by Mr Darling. This compromise was also accepted by the other members of the group as it was in line with the instructions we had given to Mr Shierlaw." (emphasis added.) 13 Mr Stone, who was another of the negotiators, gives a different account again in par 30 of his affidavit. He says: "Mr Shierlaw had been given the task of final negotiations on this matter with Mr Darling which he duly concluded with the concession to Mr Darling that Palm Springs would bear the cost of thirty per cent of the debt incurred by Mr Darling in the purchase of Lithgow Valley." 14 That is to say, on Mr Stone's account, there was no ultimate resolution which involved Mr Darling receiving an additional four million shares. 15 I should mention also that the accounts of Mr Bowman and Mr Conn in their respective affidavits talk about four million additional shares, they in no way make clear what that four million is in addition to. 16 There was no evidence that was given explicitly by any of the Palm Springs witnesses that they actually relied on any particular representations which were made by Mr Darling in arriving at any decision concerning the terms on which Palm Springs would acquire his shares in Fountainhead. That is not, however, necessarily a bar to finding that the representations or any representations which had been made had been relied on - see Huntsman Chemical Company Australia Limited v. International Pools Australia Pty Limited (1995) 36 NSWLR 242. 17 There had been a negotiating meeting between the intending joint venturers that was held on 28 November 2000 in Melbourne; that is before the meeting when Mr Darling made his demand for 1.1 million cash plus an additional four million shares. At that meeting on 28 November there was discussion about the financial basis upon which the merger of the various companies should occur. Mr Conn made some file notes which recorded the discussion in substance. Those notes show that the basis on which the parties agreed in principle to merge was that all of the entities which merged would be paid for in shares, and the number of shares which each of the merging entities would receive would be fixed by reference to the earnings before interest, tax, depreciation and amortisation of each respective entity. 18 The memorandum records the "Sydney group" as having estimated earnings before interest, tax, depreciation and amortisation of $1.78 million. The "Sydney group" consisted of Fountainhead, with earnings before interest, tax, depreciation and amortisation of $1.6 million, and Waterman, which had $0.62 million. Mr Conn's minute records that there was some discussion and negotiation about the appropriate multipliers to apply to these earnings figures. After some negotiation Mr Conn's minute records agreement on the number of shares to be allotted to each of the merging entities. It records the "Sydney group" as receiving thirty million shares. If this figure of thirty million shares is divided proportionately to the earnings before interest, tax, depreciation and amortisation of the two companies which make up the "Sydney group", as those earnings were assumed at the meeting on 28 November 2000, then 19.55 million shares would go to Fountainhead. Mr Conn's note also recognises that the negotiation was based on assumptions about what the earnings before interest, tax, depreciation and amortisation of the various companies which were merging were and that those figures would need to be substantiated by Palm Springs' auditors, Grant Thornton, with due diligence. That due diligence duly occurred. 19 In the course of it, Grant Thornton inspected the assets of Lithgow Valley that Fountainhead actually had control of. Richard Lim was the audit partner at Grant Thornton who was the responsible partner for the due diligence. 20 Mr Stone made a note on 15 January 2001, a date by which the negotiations had effectively come to an end and it was then a matter of documenting the agreement arrived at in principle, of the basis upon which the negotiations had ended in shares being allotted. That note is Ex D to his affidavit as follows: " PALM SPRINGS NEGOTIATIONS

1. Various matters were discussed and issues raised, such as Sydney synergies. This matter was considered and, eventually, discarded as a factor in the final negotiation.

2. The final share allocations were decided by: · A generous EBITDA allocation to Palm Springs of $1,575,000 which required a 5.7 times multiple to substantiate the market capitalisation of $9 million. · 5.7 times EBITDA for ASC= $4.563 m x 5.7 $26.009m ÷ 0.3 = 86.7 m shares · 5.7 times EBITDA for Fountainhead $1.163 m Mountain Valley $0.635 1,798 =10.249÷3=34.2 m shares

· Palm Springs then decided maximum shares to be issued to ASC "Sydney" 30m

· We all agreed, creating effective discounts of 13.5% in respect of ASC and 12.3% in respect of 'Sydney". · This number of shares would be allocated provided that the EBITDA's measured up. · If EBITDA's did not measure up (small variations not applicable) then allocation would be reduced accordingly. · Result for "Sydney" (according to R Lim's figures): $000 X5.7times X0.877 ÷0.3 Fountainhead EBITDA 933 Mountain Valley 615 1548 $8.824m $7.728m 25.794 m shares say 25.8 m

Fountainhead 59.5% = 15.35 m Mountain Valley 40.5% = 10.45 25.80

Fountainhead 15.95 m Mountain Valley 10.85 m

because Richard Lim's initial EBITDA calculation was a bit higher (Fountainhead $975,000)." 21 The note sets out calculations of the way in which the figure of 15.95 million shares was arrived at for Fountainhead. It shows that the figures for earnings before interest, tax, depreciation and amortisation, as found by Mr Lim, had differed from those which had been assumed at the joint venturers' meeting of 28 November 2000. Instead of Fountainhead's earnings being $1.16 million they were found to be $933,000; instead of earnings for Mountain Valley, which is another name for Waterman, being $.62 million they were $615,000. Thus, the relative proportions of Fountainhead and Mountain Valley of the total earnings of the "Sydney group" were found by the auditor to be different to those which had been assumed, as well as the auditor finding that the total earnings of those two companies were less. Thus, the amount of 15.95 million shares agreed to be allocated to Fountainhead was actually less than the amount which would have been allocated in accordance with the figures which were assumed at the meeting of 28 November 2000. 22 However, that is not the totality of the evidence on this topic. 23 The evidence of the defendant also includes, as annexure F to the affidavit of Mr Conn, a memorandum which Mr Stone prepared on 22 April 2001. That memorandum was prepared at a time when the Palm Springs directors had become dissatisfied with Mr Darling's conduct concerning the bringing of the Lithgow Valley business into the joint venture and the directors were thinking about seeking an explanation from Mr Darling concerning those events. 24 Mr Stone's memorandum records some of the events of the negotiating meeting held on 28 November 2000 and (expanding abbreviations): "Subsequently Mark Darling purchased the Lithgow Valley business for $1.075 million and then on-sold it as part of Fountainhead for four million Palm Spring shares and $322,500." 25 Mr Stone's memorandum also says that, since then, the Palm Springs directors had been made aware that. "The information tabled by Mark Darling setting out the business of Lithgow Valley to be purchased, and upon which Palm Springs based the four million share consideration, was incorrect." 26 The memorandum records that Palm Springs directors believed they had been misinformed in relation to: "The provision of incorrect financial information by Palm Springs directors and auditors resulting in an over allocation of Palm Springs shares to Mark Darling for the Lithgow Valley business." 27 I should also say that the evidence shows that the agreement for sale of shares had annexed to it a copy of the accounts of Fountainhead up to 30 June 2000. Those accounts included note 2, setting out events subsequent to balance date. One of the events listed is that: "Fountainhead entered into an agreement to purchase Lithgow Valley Springs ( Sydney Bulk Division ) for $1,075,000." (emphasis added) 28 The ordinary meaning of this note would suggest that it was not the entirety of Lithgow Valley Springs which was purchased. 29 The approach which I take to the application of Pt 38 r 8 is that, in proceedings such as the present, which is brought by summons without pleadings, it is possible to use this rule to achieve, in effect, a summary dismissal of a defence which does not deserve to go to trial. That is not the only use which can be made of Pt 38 - as well it can be used to strike out material which is completely irrelevant or in some other way an abuse of the process of the court. When it is being used in the first way, however, it is appropriate that the court should use standards similar to those which are used for the summary striking out of claims and defences in accordance with General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; this requires it to be quite clear that the matter being struck out cannot succeed. However, as well, as General Steel also makes clear, detailed examination can sometimes be needed to show that a claim or defence is without substance. 30 In FAI Insurances Limited v. Pioneer Concrete Services (1987) 15 NSWLR 552 Young J helpfully summarised the authorities relating to an equitable defence of unclean hands. At 561 his Honour summarised the law by saying: "However, the more one examines the rule in its application in the cases, the more one can see that it is only if the right being sought to be vindicated by the plaintiff in a court of equity, is one which if protected, would mean the plaintiff was taken advantage of his own wrong, that the court will either debar him from relief or perhaps say he is not a proper plaintiff in a representative suit." 31 Here, if an unclean hands defence were to succeed, it would be necessary for Palm Springs to show that, if Mr Darling were to obtain an order for rectification, and in consequence receive 15.95 million shares rather than 15.5 million shares, he would be receiving the advantage of his own wrong. It would be necessary for the defendant to show that the number of shares allotted to Mr Darling was fixed at 15.95 million in circumstances where conduct which equity would regard as bad behaviour on his part had led to that number being arrived at, or maintained. 32 As the summary of the evidence which I have given so far shows, there are some pieces of evidence on which it might be possible to conclude that the number of shares allotted was arrived at taking into account the availability of Lithgow Valley assets and that a breach of duty owed by Mr Darling to Palm Springs had played a role in that number being arrived at. 33 It is not appropriate on an application such as this for me to express a view about the strength of that case and I do not do so. All that is necessary is that I come to the view, which I have come to, that the case is not so clearly hopeless that it should not go to trial. Thus, those aspects of the affidavits which go to this possible unclean hands defence will remain. 34 There are two other aspects of the affidavit material which Mr Darling seeks to have struck out. One is material which details the circumstances in which he came to be dismissed from a position which he held for a short time in 2001 as an executive of Palm Springs. Those circumstances include, in part, the events relating to the bringing into the joint venture of Lithgow Valley. However, there were other matters of complaints which were raised by Palm Springs and were put to Mr Darling in the time leading up to his dismissal. 35 In so far as the Lithgow Valley events were put to him, his response is material which could be relevant to an assessment of what the truth was concerning those Lithgow Valley events. In so far as other matters of complaint were put to him, however, they seem to me to have no relevance. The complaints which were made were that he was incorrectly charging expenses to the company, taking holidays at inappropriate time, and a collection of other complaints about his performance. I cannot see that any of these matters, whether true or not, will assist the court in deciding whether Mr Darling has unclean hands in making his claim for rectification. 36 The second additional type of material which Mr Darling seeks to have struck out is material which is of an introductory or background nature but so remote that it does not affect the probabilities of matters in issue. There were several matters in the present affidavits which go back to events in the eighties; there were events in the nineties which are recounted which lead absolutely nowhere so far as a decision in this case is concerned. It would be a waste of Mr Darling's time and money to have to reply to this material in these circumstances where it leads nowhere. It is appropriate that this type of material is struck out. 37 The approach that I adopt to striking out evidence under Pt 38 r 8 is one which seeks to look to whether there is any substance in matters which are put forward. There are numerous passages in the affidavits of the defendant which are hopelessly bad in form and suggest that the draftsperson either did not know about or did not care about complying with the rules of evidence. Examples include: "Mr McLaren and I were critical of Mr Darling towards the end of the conference and we obviously upset him when we again told him he wanted too much for his business and as a result he did not then speak to us for the rest of the conference." "Many hours of discussion took place and it was agreed that Palm Springs proceed with the joint venture and purchase all of the companies owned by those present subject to Palm Springs auditors verifying the assets and liabilities of the company and another firm of chartered accountants were to examine the income and expenses, number of coolers, customers, etc. on behalf of Palm Springs." 38 It is not the task of the court on an application such as this to make ruling about such obviously bad evidence. Thus the rulings which I will now make are not intended in the slightest to influence the trial Judge, whoever he or she might be, in making rulings about admissibility of evidence at the trial. Rather, the rulings I make are ones which are directed to whether there is any substance in a defence involved in the material, or whether material is quite clearly incapable of affecting the probability of any fact in issue in the proceedings. 39 I make the following rulings: 40 In the affidavit of John Kenneth Bowman of 21 November 2001 I strike out par 2; in par 4 I strike out the third sentence beginning "I recall that" to the end of the paragraph; I strike out the whole of par 5; In par 6 the second sentence I strike out the words "and I believe that Mr Darling's business lost customers in this area."; the whole of par 7 is struck out; the whole of pars 9 and 10 are struck; the balance of the affidavit is not struck out. 41 In the affidavit of William John Conn of 21 November 2001 I strike out pars 34, 35 and 36. 42 In the affidavit of Patrick Charles Oliver Stone sworn 27 November 2001 I strike out pars 64 to 66; I should say that I have not struck out pars 60 to 63, notwithstanding that it contains hearsay, because of the approach I am taking to the substance of the matter; I strike out pars 68 to 79 inclusive. 43 In the affidavit of Adrian Schindler sworn 20 November 2001 I strike out par 5; in par 20 I strike out the second sentence to the end of par 20; I strike out par 21 to the end of the affidavit. 44 In the affidavit of Rodney John Kearns of 20 November 2001 I strike out par 39 to the end of the affidavit. 45 In the affidavit of Malina Kearns in par 2 I strike out from the second sentence beginning "At that time Mr Darling" to the end and the whole of pars 3 to 7 inclusive; I strike out par 39 to the end of the affidavit. 46 I mentioned before that this is a case which has been commenced by summons. The course of the argument before me has shown that the defence, at least, is a complex one. It seems to me that it is quite clear what Mr Darling's case is - he says that it was by mistake that the agreement for sale included the figure of 19.5 million shares rather than 19.95 million shares. However, the nature of the defences which Palm Springs seeks to rely on should, in my view, be more clearly articulated. Given the difference that there is between various deponents of the defendant, concerning the basis on which the precise number of shares allotted was arrived at, it is also appropriate that the defence of Palm Springs be verified. 47 I direct the defendant, on or before 4 p.m. on Thursday 26 September 2002, file and serve a document verified in the same manner as a defence, setting out all matters, other than simple traverses of claims made by the plaintiff, on which it seeks to rely by way of defence. 48 I have heard argument as to costs. Mr Darling submits that costs should be costs in the cause; Palm Springs submits that costs should be the defendant's costs in the cause. It is correct to say that the bulk of the material which was objected to by the plaintiff has remained on. It is also correct to say that some material objected to has been struck out. The material which has been struck out will, to some extent, shorten the trial. The plaintiff, before bringing these proceedings, wrote on 11 March 2002 inquiring how the defendant said the evidence which had been filed was relevant to an issue in the proceedings. That request was met with an uninformative answer. It seems to me that that is something which is appropriate to take into account in the order that I make. As well, if it were to be the case at trial that the defendant were to fail on the defence of unclean hands, it seems to me that it would not be appropriate for the plaintiff to then be required to bear its own costs of the challenge which has been made to the material. I think that the argument which has occurred today is something which will be bound to contribute to the ultimate resolution of the decision of the case in so far as unclean hands is concerned. 49 In those circumstances the appropriate order is that the costs of the motion be costs in the cause. **********

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