The lawyer for Melbourne men Grant Thomas and Dominic Pym, the founders and former owners of the Clear grain exchange NZX bought in 2009, told Justice Warwick Gendall that not only was New Zealand the wrong place for the case to be heard, there were no
NZX's case against two of its former Australian employees should be thrown out, the Wellington High Court heard yesterday.
Tim North SC, the lawyer for Melbourne men Grant Thomas and Dominic Pym, the founders and former owners of the Clear grain exchange that NZX bought in 2009, told Justice Warwick Gendall that not only was New Zealand the wrong place for the case to be heard, there were no grounds for it to proceed in the first place.
Mr North referred to a transcript of successful legal proceedings brought in Melbourne by Mr Thomas against NZX over money it owed to him, which quoted NZX chief executive Mark Weldon as describing Clear as a risky, start-up business that was reliant on a behavioural change by grain growers to sell their crop online.
On top of that, NZX had done its own due diligence, using external sources, as to the its value, Justice Gendall was told.
That was in stark contrast to what he heard earlier in the day.
NZX's lawyer, Brian Latimour QC, told the court that NZX bought Clear based on "wildly inaccurate" growth forecasts for Clear provided by Clear directors Messers Thomas and Pym.
He said after three grain-growing seasons, less than half of what had been targeted in the first year had been achieved.
It was not the only misrepresentation by the two men, Mr Latimour said.
They also breached the terms of their contract through their behaviour after the sale of Clear and they talked up their relationship with the grain industry, which was overstated, he said.
However, Mr North noted that after Mr Thomas agreed to step aside from his job with NZX, Mr Weldon, in an announcement to staff in Melbourne, said Mr Thomas had done a terrific job building up Clear and that he was very pleased that Mr Thomas was taking up a role as a Clear ambassador.
Whether that was behaviour of someone unhappy with the performance of his former staff member was questioned by Mr North.
The Wellington High Court hearing was to determine whether Messers Thomas and Pym had a case to answer, as well as where it should be heard.
Mr Latimour said correspondence between the parties before the sale showed both sides agreed that should legal proceedings ever eventuate over the sale, the case could be heard in either New Zealand or Victoria.
However, that was also disputed and Justice Gendall was referred to an agreement that followed Mr Thomas being released from his NZX contract, which allegedly released him from any future claims over the sale of Clear.
Despite NZX claiming damages, the amount was not specified, something which was also questioned by Mr North.
The hearing began with an unsuccessful application by NZX to have media excluded from the hearing.
The judge reserved his decision.
