BRIAN MURRAY DAKEN Appellant. MURRAY EDWIN NIGEL WIIG Respondent JUDGMENT OF THE COURT REASONS OF THE COURT. (Given by Asher J)

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA211/2016 [2016] NZCA 636 BETWEEN AND BRIAN MURRAY DAKEN Appellant MURRAY EDWIN NIGEL WIIG Respondent Hearing: 20 October 2016 Court: Counsel: Judgment: Asher, Heath and Dobson JJ D M Lester for Appellant G A Hair for Respondent 21 December 2016 at 2.30 pm JUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements. REASONS OF THE COURT (Given by Asher J) The appeal [1] The respondent, Murray Wiig, was the majority shareholder in European Woodworks Ltd (European Woodworks). In October 2013 he sold his shares to the appellant, Brian Daken. Mr Daken had previously acquired the shares of the other shareholders. DAKEN v WIIG [2016] NZCA 636 [21 December 2016]

2 [2] Mr Daken was dissatisfied with his purchase. He considered there were breaches of warranty and misrepresentations. He refused to pay Mr Wiig the balance he owed for the purchase. Mr Wiig issued proceedings to recover that amount and Mr Daken counterclaimed on the basis of the alleged breach of warranty and misrepresentations. The case was heard by Dunningham J over four days. In her judgment of 12 April 2016 she found Mr Daken liable to pay the balance to Mr Wiig and effectively dismissed most of Mr Daken s counterclaim. Mr Daken has appealed that decision. 1 Background [3] The business in question manufactures timber and timber/aluminium windows and doors. It features fittings that comply with European regulations for weathertightness and thermal efficiency. At the time of Mr Daken s purchase, Mr Wiig owned the majority of the shares, the balance being owned by the original shareholders who had set up the company. [4] Mr Daken is a chartered accountant who owned an accountancy practice. After European Woodworks was placed on the market for sale, Mr Daken met Mr Wiig on several occasions. Mr Wiig provided Mr Daken with financial information about the business. Mr Daken visited the Dunedin premises of the business and ultimately signed an agreement to purchase the stock, plant and goodwill of the business for a total of $1,200,000. When there were difficulties in getting the other shareholders to cooperate with the sale, Mr Daken purchased the shares of the other shareholders first on 26 September 2013 and then separately signed an agreement on 18 October 2013 to purchase Mr Wiig s shares (the agreement). On the same day he was appointed a director of that company. [5] Mr Daken s claim is based on his view that European Woodwork s position was much worse than he had been led to believe it was in the negotiations and that he had been misled by the financial statements and other information with which he was provided. 1 Wiig v Daken [2016] NZHC 645.

3 The decision [6] Dunningham J found both Mr Wiig and Mr Daken to be credible witnesses. 2 They had approached the transaction in the spirit of cooperation and goodwill. She found that Mr Daken had not made out most of his claims. As the appeal was presented to us, there were in effect four grounds of appeal. First ground of appeal: The Judge erred in concluding the information provided was not financial statements [7] Central to Mr Daken s case was his claim that a key warranty as to the accuracy of the financial statements in cl 9.1(e) of the agreement was breached. He did not submit that the financial accounts for the year ending 21 March 2013 were wrong, but pointed to inaccuracies in the monthly profit and loss statements that he had received. [8] Clause 9.1(e) read: 9.1 The Vendor warrants with the Purchaser that: (e) the financial statements of the Company as disclosed to the Purchaser are complete and accurate in all respects and to the best of the Vendors [sic] knowledge and belief all statements and matters and information given to the Purchaser in relation to the Company and its financial affairs are true and correct in every material respect. Dunningham J held there was no breach of this clause. 3 Mr Lester for Mr Daken submitted that the Judge interpreted financial statements too narrowly, and that they included the misleading profit and loss statements. [9] It can be seen that cl 9.1(e) contained two separate warranties, the first being that the financial statements of the company as disclosed are complete and accurate in all respects. The second was that all other statements and matters and information given to the purchaser about the company and its financial affairs are to the best of the vendor s knowledge and belief true, accurate and correct in every material respect. There is therefore an explicit distinction drawn between the financial 2 3 At [26]. At [75].

4 statements of the company that had been disclosed prior to the agreement being signed, and other statements, matters and information relating to the company and its financial affairs. In respect of the financial statements there is an unqualified warranty that the statements are complete and accurate. In respect of other statements, matters and information there is a warranty that relates to the state of mind of the vendor. The vendor warrants that, to the best of his knowledge and belief, the information is true and correct. [10] The distinction was critical in this case, as there was undoubtedly some information provided that was inaccurate. In particular the profit and loss statements for June, July, August and September 2013 contained significant errors in what was shown as stock and work in progress. Mr Daken did not suggest that these were deliberate errors or that Mr Wiig knew about them. Therefore for the cause of action to be made out it was necessary for those financial statements to fall within the unqualified warranty provided by the first part of the clause, rather than the second part of the clause that turned on the vendor s knowledge and belief. [11] The plain words of cl 9.1(e) are the key, but the factual background is relevant to interpreting what is meant by the financial statements of the company. At the time the agreement was signed, there had already been some financial information provided. An unsigned draft of the financial accounts for the year ending 31 March 2013 was provided. The accounts were prepared by European Woodworks accountant, Grant Thornton. These accounts did not contain any error as to the stock and work in progress. A final and signed copy was not provided prior to the contract being signed. Clearly these accounts fall under the first part of cl 9.1(e). [12] We understand that ultimately the final financial accounts for the year ending 31 March 2013 were the same as this draft. There were no other more final accounts. [13] The profit and loss statements were not yearly financial statements. They were internally produced reports. They were provided through the period of the negotiations by Mr Wiig. Whereas at cl 9.1(e) the financial accounts for the year

5 ending 31 March 2013 clearly fall within the the financial statements of the company, these documents more naturally fall into the second category referred to in that clause. [14] More importantly, the profit and loss statements are informal in appearance. Their informality is confirmed by the communications that accompany their presentation. Mr Daken had asked for rough financials, which he said did not need to be perfect and Mr Wiig, in his s forwarding the documents, used words such as estimate and qualified the figures he was providing with references to various incomplete matters. He said by when providing the profit and loss statement for September: You will remember that this result is not accurate and that the stock figures have not been included. [15] We agree with the Judge that the profit and loss statements containing the errors plainly fell within the second category of documents. 4 The documents were informal, and not expressed to be accurate. Mr Daken was an accountant and he wanted as much information as he could get. He was provided that information, but Mr Wiig was careful to make the inadequacies of the information clear. It was reasonable in those circumstances for him to provide the information, knowing as he did that Mr Daken was an experienced chartered accountant, who would be well aware of the perils of relying on such interim material. [16] We do not see this as a difficult issue of contractual interpretation. In our view there was plainly one set of financial statements, and it was not suggested that those financial statements were inaccurate. In relation to the other information it is not submitted that there was a breach of the second part of cl 9.1(e). Plainly the erroneous documents fell into that second category. [17] We conclude therefore that the first ground of appeal is not made out. 4 At [62].

6 Second ground of appeal: The Judge erred in concluding the parties were bound by the entire agreement clause [18] Mr Lester argued that if the informal statements containing the errors were not covered by the warranty, they were in any event pre-contractual misrepresentations. This leads to a consideration of the application of an entire agreement clause that is in the agreement. That provided: 16. Entire Agreement 16.1 This agreement constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, negotiations, representations, and discussions, whether oral or written, of the parties. [19] It was argued for Mr Daken that this entire agreement clause should not preclude the Court from considering misrepresentations. He relied on s 4(1) of the Contractual Remedies Act 1979, which provides: 4 Statements during negotiations for a contract (1) If a contract, or any other document, contains a provision purporting to preclude a court from inquiring into or determining the question (a) (b) (c) whether a statement, promise, or undertaking was made or given, either in words or by conduct, in connection with or in the course of negotiations leading to the making of the contract; or whether, if it was so made or given, it constituted a representation or a term of the contract; or whether, if it was a representation, it was relied on the court shall not, in any proceedings in relation to the contract, be precluded by that provision from inquiring into and determining any such question unless the court considers that it is fair and reasonable that the provision should be conclusive between the parties, having regard to all the circumstances of the case, including the subject matter and value of the transaction, the respective bargaining strengths of the parties, and the question whether any party was represented or advised by a solicitor at the time of the negotiations or at any other relevant time. [20] The question is therefore whether the court considers it is fair and reasonable that the provision should be conclusive between the parties, having regard to the

7 various matters set out in s 4(1). Dunningham J was satisfied that it was fair and reasonable that the entire agreement clause be conclusive. 5 It was stated in PAE (New Zealand) Ltd v Brosnahan: 6 Section 4(1) recognises a wide judicial discretion to determine whether it is fair and reasonable that the provision should be conclusive. While the issue is to be determined having regard to all the circumstances of the case, the specified criteria focus the inquiry on an assessment of the relative positions of the parties and their access to independent legal advice. Its apparent purpose is to protect one party s relative vulnerability from another party s power to impose an exemption from liability which is contrary to the factual reality or an existing legal obligation and is thus unreasonable and unfair. Section 4(1) is a mechanism for striking balances, both individually between parties and conceptually between freedom of contract and unfair or unreasonable commercial conduct. [21] Mr Lester argued that the Judge s approach was too narrow. He submitted that her approach appeared to have been coloured by the assumption that the formal financial accounts had been provided and that Mr Daken as a chartered accountant had had the chance to analyse them. [22] The negotiation in question here was a negotiation between equals. Neither party had any particular leverage. Mr Wiig wished to sell but was not desperate to sell and he had no particular fund of commercial wisdom or power that he could call in aid. Mr Daken was a chartered accountant who had a private chartered accountant s practice, and was clearly a man who understood how commercial transactions worked. He was not desperate to buy. Neither had any particular negotiation leverage that could have led to unfairness. There was no inequality in bargaining strength. [23] In terms of assessing whether s 4(1) applies, the detail of the actual sequence of events that led to the signing of the agreement and the detail of the misrepresentations in question are relevant to the assessment of the fairness and reasonableness of the provision. Here there was no rush on the part of either party to enter into an agreement. There was a very particular clause containing a representation as to the financial documents, that clause being cl 9.1(e) (to which we have already referred). In a circumstance where there is no clause dealing with 5 6 At [42]. PAE (New Zealand) Ltd v Brosnahan [2009] NZCA 611 at [15].

8 representations as to the financial statements to be relied on a court might be more willing to apply s 4(1) than where there is an explicit clause that spells out exactly what financial representations are made. Where there is a clause such as cl 9.1(e) that does provide a warranty for what might otherwise be misrepresentations, and that clause has been fairly negotiated between parties of equal bargaining strength, the court will be more reluctant to apply s 4(1). To apply it would indeed be to fly in the face of the purpose behind cl 9.1(e), and to make Mr Wiig liable for representations that it was agreed he would not stand behind, save to say it was his genuine belief they were accurate. Indeed we would observe that should we have concluded that s 4(1) did by any chance apply, we might well not have found any misrepresentations in relation to the financial information, given the very qualified way in which it was presented. [24] However, we do not need to determine that latter issue. It is sufficient for the purposes of this appeal for us to say that we agree entirely with the Judge s conclusion that s 4(1) should not be applied. Mr Daken is bound by the entire agreement clause, and cannot rely on the pleaded misrepresentations. Third ground of appeal: The Judge erred in finding that breach of warranty did not cause loss [25] Mr Wiig stated to Mr Daken that the value of confirmed orders was $800,000. It is common ground between the parties that this was an error. There were only confirmed orders of $565,000. The Judge found this was a breach of warranty, and that is not contested by Mr Wiig. 7 Judge determined there was no loss arising from this breach. 8 However, later in the judgment the This was because, from the time of the representation, the work that proceeded had a value well in excess of $800,000. Many of the unconfirmed orders came to fruition in the time immediately following settlement. Woodworks did not suffer any direct loss. 9 This meant that Mr Daken and European Wiig v Daken, above n 1, at [89]. At [104] [108]. At [106].

9 [26] Mr Lester submitted that the Judge had insufficient information on which to reach this conclusion, and that she should have heard further argument. However, although deposits had not been paid on some of the orders and therefore they were not confirmed, at the time of the warranty there was $958,290 of work for which Mr Wiig had received either a deposit or more informal verbal confirmation. While the Judge found that when a deposit was not paid the orders should not have been treated as confirmed, 10 given that those that proceeded might as well have been confirmed, there was no loss. The benefit, namely the future orders that had been negotiated prior to purchase, to the value of at least $800,000, was enjoyed. [27] It was for Mr Daken to show a loss arising from the breach of warranty. We agree with the Judge s conclusion that no loss was proven. There was no obligation on the Judge to defer the matter for further evidence. Given the high quantity of confirmed orders, further evidence could not assist. It was for Mr Daken to make out his case when he presented it at the trial. He failed to prove loss. Fourth ground of appeal: The Judge erred in concluding on the level of the overdraft, for the purposes of calculating loss [28] Mr Lester argues that the Judge proceeded on the basis of a finding that there was an overdraft facility at the time of settlement, that Mr Wiig advised Mr Daken would be up to $240,000. In fact, Mr Lester submits that the evidence was that Mr Daken reasonably understood the overdraft facility would be limited to $200,000. He was advised of an extension to that limit to $240,000 for a short period while Mr Wiig was overseas but reasonably expected it to revert to $200,000 on Mr Wiig s return. [29] At the trial Mr Daken s claim was that Mr Wiig had represented that the level of the actual indebtedness on overdraft would not exceed $115,000 on settlement. The Judge found there was no such representation. 11 [30] Under cross-examination Mr Daken accepted that there was no agreement between him and Mr Wiig about what the extent of the overdraft would be at At [85]. At [40].

10 settlement. The evidence was that Mr Wiig had warned Mr Daken that he had arranged the increase in the overdraft limit from $200,000 to $240,000 as a precaution while he was overseas. He returned prior to settlement. The Judge proceeded on the assumption that the evidence established a limit of $240,000, but Mr Lester argues that she was wrong to do so and that Mr Daken was entitled to treat the limit as $200,000 at the time he settled. [31] The relevance of the extent of the overdraft facility available to the company (as distinct from the amount by which the company s account was actually in overdraft at the date of settlement) is because Mr Wiig had warranted that the company would pay all its trade creditors up to date at the time of settlement. That warranty was breached because a number of trade creditors had not been paid under usual trade terms. [32] The Judge found that a recoverable loss would only arise for that breach if the company did not have the financial capacity within its overdraft limit to pay those outstanding trade creditors. If the level of the overdraft facility was at $200,000, then at the date of settlement there was not sufficient unutilised credit within the overdraft limit to pay the outstanding trade creditors, so a recoverable loss would be made out. However, if the level of the facility was up to $240,000, as found by the Judge, then the unutilised extent of that overdraft facility was sufficient to pay all the outstanding creditors and no loss would be recoverable. This aspect of the Judge s reasoning was not questioned on appeal. [33] We do not accept that the Judge erred in treating the relevant representation as one that the overdraft limit would be at $240,000 on settlement. The passages in the evidence on the state of the overdraft suggest there may have been confusion, both by counsel and the witnesses, between the fluctuating level of the company s indebtedness to the bank on its overdraft, and the ongoing extent of the overdraft facility that the bank had agreed to provide the company. The evidence on the point was less than precise, and somewhat equivocal. It was clearly open to the Judge to find that the representation accorded with the actual facts as to the extent of the overdraft facility. It has not been shown that the Judge was wrong in relying on

11 $240,000 as the stated overdraft limit. Accordingly, no error on this aspect of the judgment can be made out. Result [34] Mr Daken has not made out any of the grounds on appeal. [35] Accordingly the appeal is dismissed. [36] The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements. Solicitors: Cameron & Co, Christchurch for Appellant Malley & Co, Christchurch for Respondent