The Applicants applied for a declaration as to the construction of a term in the Contract, which related to the expert’s determination to value the Respondents’ interest in the joint venture, for the purposes of a buyout by the Applicants.
The Applicants submitted that the Respondents’ interests should be valued on the date the Notice of Event of Default was posted, as this was when the irrevocable offer to sell was made by the Respondents to the Applicants. The Respondents submitted that the expert determine the value date, or alternatively, the date the expert announced his determination, which was proscribed into the contract.
Taking into account that the contract mandated a valuation point, thus the expert could not select any date for the value date, and the effect of valuing on the date of the Respondents’ irrevocable offer would not achieve a commercial result which might be significantly higher or lower than the value at the valuation date, his Honour ordered that the valuation point is the date the expert announced his determination, in accordance with the alternative submission proposed by the Respondents.
Michael Hodge QC (leading D L Tay) appeared for the applicants, instructed by Carter Newell.
The judgment is published here.