Arida v Arida [2018] NSWSC 1416

Supreme Court New South Wales

Medium Neutral Citation: Arida v Arida [2018] NSWSC 1416 Hearing dates: 7 September 2018 Date of orders: 20 September 2018 Decision date: 20 September 2018 Jurisdiction: Equity Before: Robb J Decision: 1. The plaintiff's application for leave to rely upon the expert evidence of Ms Julie Planinic in the form of her affidavit sworn 11 July 2018 is rejected.

2. The plaintiff is ordered to pay the defendants' cost of the application. Catchwords: Evidence — Expert Evidence — whether the Court should excuse non-compliance by the plaintiff with Part 31 Div 2 of the UCPR and Practice Note No. SC EQ 5 — whether the plaintiff should have leave to rely upon a particular expert report Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 Category: Procedural and other rulings Parties: Tony Arida (Plaintiff) Sid Arida (First Defendant) Joseph Arida (Second Defendant) George Arida (Third Defendant) Representation: Counsel: C McMeniman (Plaintiff)

Solicitors: Greenaway & Tohme Solicitors (Plaintiff) Somerset Ryckmans Solicitors (Defendants) File Number(s): 2018/188402

Judgment 1. The plaintiff, Tony Arida, and the defendants, Sid, Joseph and George Arida, are brothers. 2. They are parties to proceedings instituted in this Court by statement of claim filed by Tony Arida on 18 June 2018. 3. It will be convenient, without meaning any disrespect, to refer to the parties by their forenames. 4. In the relief claimed, Tony seeks the following relief: 1. A declaration that the defendants have breached clause 10 of the contract between the defendants and the plaintiff titled "Heads of Agreement" dated 21 August 2012 (Heads of Agreement). 2. A declaration that no valuation has been performed in accordance with clause 7 of the Heads of Agreement. 3. A declaration that no valuation can be performed in accordance with clause 7 of the Heads of Agreement. 1. Then, in prayer 4, Tony claims a declaration that, by reason of the events the subject of the earlier prayers, the Heads of Agreement has been frustrated, it has been terminated, or it may be terminated at Tony's election. 2. It is sufficient to note that there has been considerable litigation in this Court between the parties concerning the division between them of a number of properties and businesses that they have owned and conducted together for a number of decades. 3. On 21 August 2012, the parties entered into the Heads of Agreement referred to in the relief claimed in the statement of claim, by way of the settlement of certain proceedings between them. 4. The objective of the Heads of Agreement was to provide a framework for the valuation and the division of the various properties and interests owned by the parties, which included real properties and a number of businesses. 5. It is sufficient to note that the Heads of Agreement has been implemented in relation to the real properties, and the Court has been informed that an amount in excess of $6,000,000 has been paid to and accepted by Tony. 6. By clause 7 of the Heads of Agreement, the parties agreed to request the President of the Institute of Chartered Accountants to nominate a member of that organisation to value the businesses listed in the clause "on a going concern basis". The intent of the valuations was to provide a basis for the payment to Tony of his share in the value of the businesses. 7. Clause 10 of the Heads of Agreement provided: The parties will use their best endeavours to ensure that the accountant is provided with all necessary documentation and appropriate access to the sites of the businesses as required by him or her for the purpose of valuing those businesses. 1. Three preliminary observations may be made about this provision. First, the obligation on the parties to provide documentation to the accountant was not absolute, but required the parties to use their best endeavours. Secondly, there is an issue of the proper construction of the provision as to what the parties were required to provide to the accountant. Were they required to use their best endeavours to provide the information that was required in an absolute sense, or were they only required to provide to the accountant the documentation that was required by the accountant? The issue is not to be decided now, but there is a good argument that the words "ensure that the accountant is provided with all necessary documentation … as required by him or her" has the effect that it is a matter for the decision of the accountant as to what is necessary. It may be that the word "reasonably" would be implied before the word "necessary". Thirdly, an issue arises out of the nature of the breach of clause 10 alleged by Tony in his statement of claim. He alleged that the "information" provided by the defendants to the accountant was incomplete, inaccurate and unreliable. However, in terms, clause 10 required the parties to provide "documentation" to the accountant. 2. In due course, Mr Brendan Halligan was jointly appointed by the parties to perform the valuations required by clause 7 of the Heads of Agreement. 3. Subsequently, Mr Halligan endured significant delay in being provided with the necessary information to enable him to prepare his valuations, and the point was even reached where he rejected his retainer. It is not necessary for the Court in these reasons to describe all of the relevant events, but in due course Mr Halligan was provided with additional information, and on 20 November 2017 he delivered to the parties the valuations contemplated by clause 7 of the Heads of Agreement. 4. In outline, the problem was that the businesses had been conducted in a relatively informal way by the parties, with the assistance of their wives and other relatives. The parties did not keep proper or conventional financial records of the operations of the businesses. As I understand it, the businesses operated on short term tenancies. 5. There was significant disputation between Tony and his brothers concerning the adequacy of the financial information that the brothers (who had continuing control of the operations of the businesses to the exclusion of Tony) had prepared and were able to provide to Mr Halligan. Mr Halligan ultimately received, and acted upon, various financial reports that were prepared by or on behalf of the defendants a considerable period after the financial years to which the reports related. 6. Part of the information that Mr Halligan received was a report by Mr Neil Gray of Deloitte that was prepared on the instructions of Tony. 7. Of the four businesses that were valued by Mr Halligan, he assigned a market value of nil to three of the businesses and $145,000 to another of them. 8. It should be mentioned that one of the businesses that was assigned a nil market value was called National Vehicle Wholesalers. There is no disagreement that this valuation was appropriate, as the business had ceased to operate some time before the valuation date. Tony takes issue with the manner in which Mr Halligan valued the other three businesses. 9. As appears from Mr Halligan's valuation, he took the view that the proper valuation approach to determine the market value of each of the businesses was the capitalisation of net maintainable earnings. 10. In his report, Mr Halligan largely accepted the financial information supplied to him by the defendants for the financial years 2008 to 2011 in order to determine the net maintainable earnings for the businesses. He then, in a manner that was explained in some detail in his report, "normalised" the earnings by making a series of adjustments to them to reflect the real net maintainable earnings (free of the special effects of the way the family had conducted the businesses) as those earnings may have been considered realistic by the hypothetical willing but not anxious purchaser. 11. After this normalisation process, Mr Halligan assessed the net maintainable earnings for three of the businesses at about nil. 12. Speaking broadly, and looking at Mr Halligan's valuation on its face, it is a carefully reasoned and apparently professional valuation of some 89 pages in length. 13. As I have noted above, by the relief claimed in his statement of claim, Tony in essence claims that Mr Halligan's valuation was not performed in accordance with clause 7 of the Heads of Agreement, with the result that no valuation has been performed as required by that provision. 14. By way of consequential relief, Tony claims that the Heads of Agreement in its entirety has been frustrated or may be terminated. If he were successful in obtaining that relief, he would have to hand back the $6,000,000 plus that he has already received, and the parties would be cast back to the state of litigation that they were in on 21 August 2012 when the Heads of Agreement was made. 15. The issue that is now before the Court has arisen in the following way. 16. In response to a general direction from the Court for Tony to serve his evidence by a stipulated date, Tony obtained and served an expert report by Ms Julie Planinic, a director of Lonergan Edwards & Associates, concerning the adequacy of Mr Halligan's valuation. 17. Tony and his lawyers ignored the requirements of Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) and Practice Note No SC EQ 5. 18. Tony applied to a Registrar for leave to rely upon the expert report notwithstanding the breach of the requirements of the UCPR and the Practice Note. On the basis that the application raised questions of serious conflict or difficulty, the Registrar in accordance with par 15 of the Practice Note referred the matter to me sitting as duty judge. 19. The question is whether the Court should make the orders sought by Tony, which were relevantly included in draft short minutes of order in the following terms: (a) The Court notes the request and certification by the plaintiff's legal representative at the end of these orders in relation to expert evidence in these proceedings. (b) To the extent that there has been prior non-compliance with Practice Note No. SC EQ 5 by the plaintiff, the Court excuses such non-compliance. (c) The plaintiff has leave to rely upon the expert report of Julie Planinic, Forensic Accountant and Director of Lonergan Edwards & Associates, dated 18 April 2018 that is Annexure 'A' to the affidavit of Ms Planinic sworn 11 July 2018 and was filed and served on 22 August 2008 (Planinic Report). (d) The defendants to serve any evidence in reply, including any expert report in reply to the Planinic Report, by 18 October 2018. … 1. It may be observed that these draft short minutes of order did not acknowledge the failure to comply with Part 31 Division 2 of the UCPR. 2. While the affidavit of Tony's solicitor filed in support of the application contained some rudimentary evidence to the effect that it was the solicitor's opinion that it was appropriate for Tony to rely upon the Planinic Report in these proceedings, no explanation or excuse for the failure to comply with the UCPR or the Practice Note was proffered. I assume that the explanation is that Tony's lawyers simply lost sight of the need for him to comply with the UCPR and the Practice Note. 3. It goes without saying that any matter required to be addressed by the UCPR or made the subject of a formal Practice Note by the Court is a matter of the utmost importance, and parties are required to give scrupulous attention to the requirements of the UCPR and the Practice Notes. The obvious reason is that the UCPR and the Practice Notes are formulated in order to facilitate the proper control by the Court of its processes to ensure, among other things, that the requirements of s 56 of the Civil Procedure Act 2005 (NSW) are achieved. 4. The Court does, of course, have power to relieve parties from inadvertent failures to comply with the requirements of the UCPR or a Practice Note, but in my view the Court must consider such applications strictly to ensure that the other party is not unfairly disadvantaged, and that the party seeking the indulgence of the Court does not by means of the failures to comply with the UCPR and the Practice Note achieve a result that it would not have achieved had it complied with the UCPR and the Practice Note in the first place. 5. If Tony had sought to comply with the UCPR and the Practice Note before Ms Planinic was retained to prepare her expert report, the defendants would have been given an opportunity to confer for the purpose of possibly appointing one expert (Practice Note par 6), and in any event they would have had the benefit of a directions hearing before the Court under UCPR 31.19 and par 12 of the Practice Note. Rule 31.19 requires any party intending to adduce expert evidence at trial to promptly seek directions from the Court in that regard. By sub-rule (3), unless the Court otherwise orders, expert evidence may not be adduced at trial unless directions have been sought in accordance with the rule. 6. The primary consideration is, however, that UCPR 31.17 provides for the main purpose of the Expert Evidence Rules as being: (a) to ensure that the court has control over the giving of expert evidence, (b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings, (c) to avoid unnecessary costs associated with parties to proceedings retaining different experts; (d) if it is practical to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings but by a single expert engaged by the parties or appointed by the court, (e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than is necessary) to give evidence on an issue in the proceedings, (f) to declare the duty of an expert witness in relation to the court and the parties to proceedings. 1. As the list of directions that the Court may make under UCPR 31.20(2) makes clear, had an application for directions been made in a timely way by Tony, the defendants would have had an opportunity to make submissions to the Court concerning the need for and appropriateness of expert evidence, and any specific directions that should be made in relation to the preparation of such evidence. 2. Where the relevant rules and the Practice Note are complied with, the Court will have an opportunity to consider the relevant issues raised by the pleadings, and to determine whether a single expert should be appointed, or whether the parties should be permitted to retain individual expert witnesses. 3. The position is different now because the Court has before it the report that has actually been prepared by Ms Planinic. In my view the only rational course for the Court to take is to have regard to the terms of Ms Planinic's report to decide what orders should properly be made to ensure compliance with s 56 of the Civil Procedure Act. 4. In my view the appropriate starting point is to consider the issues as they arise from Tony's statement of claim. 5. In outline, Tony pleaded the making of the Heads of Agreement and the terms of clause 7 of that agreement, and then pleaded the engagement of Mr Halligan. Then Tony pleaded the history of the attempts by Mr Halligan to obtain the necessary information, and then alleged in par 35 that by reason of the matters pleaded in pars 6 to 34, the defendants breached clause 10 of the Heads of Agreement. Tony then pleaded further steps taken by Tony and Mr Halligan to obtain the necessary information, and in pars 57 and 58, Tony referred to submissions provided to Mr Halligan both by the defendants and himself. He then pleaded in par 59 that on 20 November 2017, Mr Halligan sent his report to the solicitors for the parties. 6. Tony then pleaded the following allegation in par 60: Complete, accurate and reliable information in relation to the Businesses was and is required to be provided by the defendants to perform a valuation of the Businesses in accordance with clause 7 of the Heads of Agreement. 1. The correctness of this allegation will be a matter for the proper construction of the Heads of Agreement. It must be noted, however, that clause 10 required the parties to "use their best endeavours to ensure that the accountant is provided with all necessary documentation". It is debatable whether a best endeavours obligation obliged the defendants in an absolute way to provide "complete, accurate and reliable information in relation to the Businesses". 2. It is clear that Tony has not pleaded the alleged breaches by the defendants in terms that they failed to use their best endeavours to provide the necessary information, and he has not pleaded facts or given particulars relevant to any failure to use best endeavours. 3. Paragraph 60 of the statement of claim seems to imply that the defendants were obliged in an absolute way to provide complete, accurate and reliable information, as if their obligation was not restricted to what was required (or reasonably required) by Mr Halligan. Tony has not pleaded a case that the defendants breached the Heads of Agreement by failing to provide to Mr Halligan identified categories of documents required by him. 4. Paragraph 60 of the statement of claim alleges that the defendants provided Mr Halligan with deficient "information", while clause 10 of the Heads of Agreement only required them to provide "documentation" to Mr Halligan. 5. Tony then alleged in par 61: "The Information provided by the defendants to Mr Halligan was incomplete, inaccurate and/or unreliable". Tony then provided nine relatively detailed particulars of the manner in which he alleges that the information provided by the defendants to Mr Halligan was incomplete, inaccurate and/or unreliable. It is to be noted, however, from a reading of the particulars that the deficiencies are only identified in a descriptive way that does not provide any quantitative means for assessing objectively the seriousness of any deficiencies in the information that was provided. That is, nothing in the particulars would support a judgment as to the degree of the deficiency in the information that may support a case that Mr Halligan did not determine the market value of the businesses because of the magnitude of the deficiencies in the information upon which he acted. 6. Tony then alleged in par 62 that Mr Halligan had regard to and based his valuations of the businesses on the information that was provided to him by the defendants. 7. The allegations in Tony's statement of claim are then completed in the following way: 63. In the premises: a. No valuation has been performed in accordance with clause 7 of the Heads of Agreement; and b. No valuation can be performed in accordance with clause 7 of the Heads of Agreement. Further, by reason of: a. The defendants' breach of clause 10 of the Heads of Agreement; b. No valuation having been performed in accordance with clause 7 of the Heads of Agreement; and/or c. No valuation being able to be performed in accordance with clause 7 of the Heads of Agreement, The Heads of Agreement: d. Has been frustrated; e. Has been terminated; and/or f. May be terminated at the election of the plaintiff. 1. The claim made by Tony as pleaded in his statement of claim may therefore be distilled into an allegation that clause 10 of the Heads of Agreement required the defendants (in an absolute sense) to provide complete, accurate and reliable information (rather than documents) in relation to the businesses to Mr Halligan as needed for the determination of the market value (not limited to the information required by Mr Halligan), and that by reason of the fact that in various unquantified ways the information provided was incomplete, inaccurate and/or unreliable, Mr Halligan's valuations of the businesses were not valuations in accordance with clause 7 of the Heads of Agreement. 2. That claim appears to be entirely dependent upon the validity of Tony's claim that the best endeavours obligation in clause 10 obliged the defendants to provide information that was absolutely complete, accurate and reliable; that the defendants had to provide information and that their obligation was not limited to the provision of documents; and that the information required to be provided was not limited to that which was required by Mr Halligan. 3. As I read Tony's statement of claim, he has not pleaded a claim on a more nuanced basis that in some way Mr Halligan's valuations do not comply with clause 7 of the Heads of Agreement because of some deficiency in the valuation methodology applied by Mr Halligan. Nor does Tony plead a claim that depends upon some finding that the absolute degree of the incompleteness, inaccuracy and unreliability of the information provided was so extensive that in an objectively quantifiable way Mr Halligan's valuations did not comply with clause 10, even though he attempted to make the valuations by applying a proper valuation methodology. The point is that no case based upon the extent of the completeness, accuracy and reliability of the information is pleaded in Tony's statement of claim. 4. The allegation by Tony that no valuation can be performed in accordance with clause 7 of the Heads of Agreement must, in view of the terms of the statement of claim, be an un-particularised allegation that not only was the information supplied to Mr Halligan by the defendants incomplete, inaccurate and unreliable, but that it is impossible for the defendants to supply information that has a sufficient degree of completeness, accuracy and reliability to permit Mr Halligan to properly determine the market value of the businesses by the application of proper valuation principles. 5. I observe in passing that the premise upon which these allegations are made appears to be that the market value of a business cannot be determined in accordance with proper valuation theory if complete, accurate and reliable information concerning the business is not available to the valuer. That premise does not appear to me to be sustainable, as it will often be the case that the financial information concerning a business is defective, and it is part of the art of the valuer to determine what adjustments should be made from the perspective of the purchaser to determine the market value. 6. Ms Planinic was instructed to provide a report that addressed the following questions (as set out in her letter of instructions): 1. What was required of Mr Halligan to determine the value of the Businesses on a going concern basis? 2. Was the methodology adopted by Mr Halligan directed at determining the value of the Businesses on a going concern basis? 3. Did the methodology adopted by Mr Halligan yield a determination of the value of the Businesses on a going concern basis? 4. If your answer to question 2 or question 3 is 'no': a. Could Mr Halligan have determined the value of the Businesses, on a going concern basis, based on the information available to him? b. If so, what methodologies should Mr Halligan have adopted to determine the value of the Businesses on a going concern basis? 1. As Ms Planinic recorded in Appendix C to her report, the information that she relied upon included a number of accounting standards, the Heads of Agreement, Mr Halligan's report, the defendants' submissions to Mr Halligan, and Mr Gray's report on behalf of Tony. Ms Planinic does not include in the list of matters relied upon all of the 81 appendices and 36 tables listed in Mr Halligan's valuation. She also does not include the statement of claim. 2. While the Heads of Agreement in the present case does not contain an express term making the accountant's valuations "final and binding on the parties", it does provide in clause 9 that the defendants would pay to Tony "a sum of 25% of the value of the businesses as determined by the nominated accountant". This is a case where the parties appear to have contractually agreed that the defendants would pay to Tony an amount calculated by reference to a determination by a third party. The considerations discussed by McHugh JA (as his Honour then was) in Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335, 336 therefore appear to be relevant. It is sufficient to note the following observation by his Honour at 335, 336: …While mistake or error on the part of the valuer is not by itself sufficient to invalidate the decision or the certificate of valuation, nevertheless, the mistake may be of a kind which shows that the valuation is not in accordance with the contract. A mistake concerning the identity of the premises to be valued could seldom, if ever, comply with the terms of the agreement between the parties. But a valuation which is the result of the mistaken application of the principles of valuation may still be made in accordance with the terms of the agreement. In each case the critical question must always be: Was the valuation made in accordance with the terms of a contract? If it is, it is nothing to the point that the valuation may have proceeded on the basis of error or that it constitutes a gross over or under value. Nor is it relevant that the valuer has taken into consideration matters which he should not have taken into account or has failed to take into account matters which he should have taken into account. The question is not whether there is an error in the discretionary judgment of the valuer. It is whether the valuation complies with the terms of the contract. 1. It is not necessary, on an application of the present kind, for the Court to explore these principles in detail. It is sufficient to note that the issue will be whether Tony can establish that the valuations determined by Mr Halligan were not made as required by the Heads of Agreement, so that in the application of that agreement they will not be determinative of the amount payable under clause 9 to Tony. 2. As I have noted above, questions of the proper construction of clause 10 of the Heads of Agreement appear to arise in this case as to whether Mr Halligan's determination of the market value of the businesses required that he be provided with information or documents, whether the information or documents provided had to be absolutely sufficient, or whether the parties only had to use their best endeavours, and whether the information or documents to be provided was limited to what was required by Mr Halligan. While clause 7 required Mr Halligan to determine the market value of the businesses, that task could not be undertaken in isolation from the information or documents that Mr Halligan was to act on. (Ms Planinic's report implicitly accepts this proposition, because her conclusions were substantially based upon her view of the insufficiency of the information that was available to Mr Halligan). 3. The point of these observations is, that Ms Planinic was by means of her instructions asked to provide opinions relevant to the value of the businesses on a going concern basis, without being provided with specific assumptions as to the nature of the information that the Heads of Agreement required that Mr Halligan be given. Ms Planinic was simply given the Heads of Agreement. As a business valuer, she does not have the expertise to determine the relevant construction of the Heads of Agreement, and in any event, that is not her function. Consequently, the report prepared by Ms Planinic is silent as to the assumptions made by Ms Planinic concerning the nature of the information that Mr Halligan was required to be given by the parties and which he was required to use as the basis of his determinations of value. This is a subtle but very significant issue of principle. In so far as Ms Planinic has expressed opinions in her report (as she has) that Mr Halligan was unable to properly determine the value of the businesses because of the inadequacy of the information available to him, she has acted upon unexpressed assumptions as to what the contract required that he be given. 4. It will be sufficient for present purposes to set out the executive summary contained in Ms Planinic's report concerning the three valuations undertaken by Mr Halligan with which she disagreed: 13. In relation to the [three businesses]: (a) In my opinion, the methodology adopted within the Halligan Report was directed at determining the market value of the businesses on a going concern basis; (b) notwithstanding the adoption of generally accepted valuation methodology, in my opinion, the valuation outcome derived from the methodology adopted by Mr Halligan did not yield a determination of the market value of the Businesses on a going concern basis; (c) in my opinion, one of the principal reasons the methodology adopted by Mr Halligan did not yield a "market" value is that the financial information provided to Mr Halligan (referenced at paragraph 43 below) was unreliable and the lease arrangements of the businesses were not formalised, which is not consistent with the actions of a hypothetical "willing seller". For this reason, and to the extent that no other financial information was available to or relied upon by Mr Halligan for the purposes of his analysis, the conclusions reached by Mr Halligan were, self-evidently, not reflective of "market value"; (d) in my opinion, Mr Halligan was not able to determine the market value of the businesses…based on the information available to him. This is because of the unreliable nature of and inherent uncertainty in the financial information upon which the Halligan Report was based. 14. Given the information deficiencies in the absence of any detailed forensic examination to resolve uncertainties, in my opinion, the valuation opinions set out in the Halligan Report should have been heavily qualified for these information deficiencies. 1. It thus appears that Ms Planinic accepted that Mr Halligan had adopted a correct methodology, but she reached the conclusion that he had not accurately determined the market value of the businesses on a going concern basis. 2. There were two principal reasons for this conclusion. First, the financial information provided to Mr Halligan was unreliable. Ms Planinic seems to say that Mr Halligan was required to undertake a "detailed forensic examination", and in the absence of such an examination he was required to qualify his valuation determinations. Secondly, Ms Planinic seems to say that the lease arrangements of the businesses were not formalised, and a hypothetical "willing seller" would have corrected that matter in order to ensure that any valuation was a market valuation. 3. The first part of Ms Planinic's conclusions appears to be consistent with the observations that I have made above concerning the need for certainty as to the assumptions that she made concerning the relationship between the information that the parties were required to provide to Mr Halligan and the outcome of his valuation determination. Tony's statement of claim does not include any allegation that the Heads of Agreement required Mr Halligan to undertake a detailed forensic examination in relation to information that the parties had not provided him before he made his valuation determinations. The statement of claim also does not include any allegation concerning any contractual requirement that any of the parties take any actions in relation to changing the nature of the leases from which the businesses were operated in conjunction with the valuation process. 4. I have come to the view that I should not make the orders sought by Tony so long as Tony seeks leave to rely upon Ms Planinic's report on the basis of the claims made in his statement of claim in its present form. 5. In my view it is likely that if the Court granted Tony relief that he seeks, the defendants will decide that it is necessary to respond by obtaining a report by their own valuation expert. 6. I consider there to be a high likelihood that, if the Court permits this process to occur, it will unnecessarily cause delay and an increase in costs that will ultimately not be productive, because of my view that Ms Planinic's report is of little utility given the tenuous relationship between the matters discussed in the report and the issues that arise on the proper construction of the Heads of Agreement concerning the nature of the information that Mr Halligan was required to act upon in relation to what was required to be provided to him by the parties. 7. I would add that it seems to me that many of Ms Planinic's conclusions have been stated baldly in her report without adequate reasoning. I refer in particular to her conclusions concerning the consequences of the supposed inadequacy of the information upon which Mr Halligan acted. Ms Planinic asserts the inadequacy of the information without explaining in any technical way what the consequences of the inadequacy was, or the extent to which it prevented Mr Halligan from reasonably determining the value of the businesses. 8. Accordingly, I reject Tony's application and order him to pay the defendants' cost of the application.