FEDERAL COURT OF AUSTRALIA
NSD 1424 of 2017
Date of judgment:
New South Wales
National Practice Area:
Admiralty and Maritime
Number of paragraphs:
Solicitor for the Applicants:
Holman Webb Lawyers
Counsel for the Respondent:
Mr E Cox SC with Ms C Gleeson
Solicitor for the Respondent:
Barringer Leather Lawyers
KANKI SEA TOURISM HOSPITALITY & ENTERTAINMENT PTY LTD
DATE OF ORDER:
THE COURT DECLARES THAT:
1. The Joint Venture Agreement between the Second Applicant (Kanki) and the Respondent (Neptune) dated 6 January 2016 (JVA) was validly terminated by Kanki on and from 25 July 2017.
2. The joint venture business between Kanki and Neptune established under the JVA (Business) was validly terminated on and from 25 July 2017, by reason of the termination of the JVA.
3. The Charter and Licence Agreement between the First Applicant (Ozmen), Neptune and Kanki for the demise charter of the Vessel dated 6 January 2016 (Charter Agreement) was validly terminated by Ozmen on and from 4 August 2017.
4. Kanki is not liable for any damages to Ozmen either in respect of the breach of the Charter Agreement prior to 4 August 2017 or in respect of the use of the Vessel on and after 4 August 2017, with any such damages to be payable solely by Neptune.
THE COURT ORDERS THAT:
(a) Brian Silvia and Ian Currie (Receivers) as receivers of the Vessel appointed by order 1(a) made on 26 September 2018 deliver up possession of the Vessel to Ozmen on 9 May 2019;
(b) Orders 4, 5 and 7 made on 26 September 2018 be discharged, so as to relieve the receivers from any further obligation to comply with those orders.
6. Order 1 made on 26 September 2018 appointing the Receivers as receivers of the Vessel and the Business be terminated on and from 9 May 2019, save and except for the purpose of the Receivers completing their receivership in accordance with these orders.
7. Neptune pay damages (including interest) to Ozmen for breach of contract, trespass and conversion in respect of the use of the Vessel on and after 4 August 2017, with the amount of such damages to be assessed.
8. Neptune pay Ozmen’s costs of the proceedings, other than any costs which are the subject of an existing costs order, with the liabilities under any such costs orders to be set-off.
9. Neptune account to Kanki for the profits of the Business from 6 January 2016, being the date of entry by Neptune and Kanki into the JVA, such account to be assessed.
10. Neptune pay damages (including interest) to Kanki for breach of the JVA, with the amount of such damages to be assessed.
11. Neptune pay Kanki costs of the proceedings, other than any costs which are the subject of an existing costs order, with the liabilities under any such costs orders to be set-off.
Vessel and Business
12. Neptune and/or the Receivers sign any document, within a reasonable time of being asked to do so by Ozmen, indicating its or their consent to:
(a) The change in registration of the Vessel under the Shipping Registration Act 1981 (Cth), prepared by Ozmen, which is reasonably necessary for Ozmen to change the Vessel’s registration;
(b) The removal of Neptune’s name from any certificate (including any certificate of Survey and Operation) or register maintained by the Australian Maritime Safety Authority and/or New South Wales Roads and Maritime Services in respect of the Vessel;
(c) The transfer or assignment of the current Liquor and Gaming Authority Liquor Licence in respect of the Vessel to such person as the Applicants nominate; and
(d) The transfer or assignment of any other licence or permission, not otherwise referred to in these Orders, in respect of the Vessel or the Business as may be agreed or as the Court may order.
13. Kanki pay Neptune the amount of the Shared Costs calculated in accordance with the JVA, with such amounts to be assessed.
14. Neptune’s Cross-Claim otherwise be dismissed with no order as to costs.
Consequential Orders – Receivership
15. By consent, the Receivers’ remuneration of $303,971.90 of which $257,511.72 thereof remains unpaid as at the date of these orders, be approved.
16. The amount of $265,731.90 in respect of net profit share payable to Kanki currently held in the Holman Webb trust account be paid to the Receivers for the purpose (Payment Purpose) of applying those moneys to the payment of debts incurred by the Receivers in the conduct of their receivership and in respect of the Receivers’ Remuneration referred to in Order 15 above in combination with the amounts referred to in Order 17 and Notation 30.
17. The Security Deposit of $100,000 paid into Court by the Applicants be released forthwith to the Receivers for the Payment Purpose.
18. So much of Orders 6 and 7 made on 19 December 2017 as relates to the amount of $265,731.90 referred to in order 16 above be discharged.
19. Undertaking (c) given by the Applicants and noted in the Orders made on 26 September 2018 be discharged.
Other Consequential Orders
20. The amount of $123,750.00 paid by the Applicants as security for costs pursuant to Order 1 made on 13 September 2018 be refunded to the Applicants, and that order be vacated.
20A. Until further order, Kanki and Neptune grant a licence Ozmen to use the Shared Property listed at Attachment A [annexed to the stamped copy of these orders as made on 9 May 2019] until final determination of these proceedings on terms set out in clause 3 of the Deed at Attachment C [annexed to the stamped copy of these orders as made on 9 May 2019], which licence payments are to be secured by the mortgage Deed in Attachment C and provide all necessary access and other codes and passwords for the operation of the items listed at 10, 11 and 12 in Attachment A by 10am on Friday, 10 May 2019 and all other items as soon as reasonably practicable.
21. For the purpose of the Deed at Attachment C below, the limit of the security interest under that Deed be $750,000.
22. The proceeding be listed for a case management hearing on 14 June 2019.
23. The Receivers (at the cost of the Applicants unless the Court otherwise orders) and/or the Applicants have leave to file an interlocutory application returnable for directions on 14 June 2019 to join such persons as they may be advised for the purpose of determining the question of any liability on the part of the Receivers to pay amounts to such persons arising in the conduct of the receivership and/or the obligations of any such persons to repay amounts paid to them by the Receivers in the course of the receivership.
24. The parties have liberty to apply on 24 hours’ notice.
THE COURT NOTES THAT:
25. Kanki has elected to purchase, if Neptune elects to sell, Neptune’s half share in the Shared Property listed at Attachment A for an amount to be determined in these proceedings on the basis that:
(a) Such amount will form part of the determination of the overall financial adjustments to be made between the parties, and will not be payable prior to that time;
(b) The security in order 21 above includes an allowance of $250,000 for payment of that amount;
26. Ozmen undertakes by its solicitors, until further order, as soon as practical to give and maintain a ship’s mortgage over the Vessel in favour of the Receivers on the terms set out in Attachment B [annexed to the stamped copy of these orders as made on 9 May 2019] hereto for a security amount of up to $650,000 for the payment of such further amounts as may be payable to them for the completion of their receivership not otherwise covered in orders 16 and 17, and notation 30, and making provision for the Receivers’ liabilities and estimated liabilities referred to in Notation 31 below.
27. Ozmen undertakes by its solicitors, until further order, as soon as practical to give and maintain a ship’s mortgage for a security amount of up to $750,000 over the Vessel in favour of Neptune on the terms set out in the Deed at Attachment C hereto in respect of such amount (if any) as is found to be due to Neptune on assessment of the amounts referred to in orders 7, 8, 9, 10, 11, 13 and 20A above.
28. Each of the parties to these Orders and Culture Map Pty Ltd undertake to apply the following order of priorities in respect of the security interests over the Vessel as between them:
(a) First Priority – the Ship’s Mortgage in favour of the Receivers as set out in notation 26 above;
(b) Second Priority – the Deed in favour of Neptune as set out in notations 27 above and 29 below for the respective priority amounts of up to $750,000 as stated in order 21 above, and the further security amount as stated in order 29.
(c) Third Priority – the registered security interest of Culture Map Pty Ltd in the Vessel under PPSR search certificate number 5767476788830001.
29. Ozmen has elected to takeover each of the contracts in the name of Neptune listed in Attachment D [annexed to the stamped copy of these orders as made on 9 May 2019] hereto, and Ozmen and Neptune have agreed in respect of each such contract and that:
(a) Ozmen, by its solicitors, undertakes to the Court that it will pay, on behalf of Neptune and any party liable under a contract in Attachment D (“Other Party”), the monthly amounts otherwise payable by Neptune or that Other Party on and after the date of these orders under each such contract to the counterparty under that contract, provided that such Other Party has done all things necessary on its part to be done to effect any relevant transfer or novation under notation 29(c) below;
(b) Ozmen, by its solicitors, undertakes to the Court that it indemnifies Neptune and that Other Party in respect of any liability incurred under that contract in respect of an event occurring on and from the date of these Orders, being a liability that arises in the ordinary course of that contract and that it will secure that indemnity pursuant to the mortgage Deed at Attachment C in the further priority amount of $280,000 in the aggregate for all of the contracts in Attachment D, subject to that amount being reduced pro tanto as and when each contract in Attachment D is assigned or novated to Ozmen or its nominee (and there is no further liability of Neptune or that Other Party) with such reduction to be calculated in the proportion that the monthly amount payable under the contract bears to the aggregate amount of all monthly amounts payable under the contracts in Attachment D, provided that such Other Party has done all things necessary on its part to be done to effect any relevant transfer or novation under notation 29(c) below.
(c) Ozmen and Neptune, by their respective solicitors, respectively undertake to use their best endeavours to procure an immediate transfer of that contract to Ozmen or its nominee, or novation in favour of Ozmen or its nominees, on the same terms and conditions as currently apply to Neptune under that contract.
30. By consent the Receivers may retain and use for the Payment Purpose the sum of $143,445.94 being the credit bank balance as at 29 April 2019 (or such different amount as may be in that account as at 9 May 2019, including deposits for future events of $42,000).
31. In respect of each of the items below, the Applicants agree to pay to the Receivers, on or before the date specified below for that item (or such other date as may be agreed between the Applicant and the Receivers), the amount properly due and owing in respect of that item (upon presentation of the invoice(s) for that item), for the Payment Purpose, and shall indemnify the Receivers against all liability in respect of that item, as follows:
(a) PAYG/GST for April 2019, payable by 31 May 2019 – estimated to be $61,010;
(b) Trade creditors currently unknown or unanticipated, payable by 31 May 2019 – estimated to be $30,000;
(c) Estimated cash shortfall by 31 May 2019 – estimated to be $121,292.99;
(d) Future and other services as determined by the Receivers, payable by 31 May 2019 – estimated to be $54,899.61;
(e) Future Receivers’ remuneration and expenses (or such other amount as may be agreed between the parties), payable by 30 June 2019 – estimated to be $50,000;
(f) Any amount in respect of deposits for future events of $42,000 as referred to in Order 30 above in respect of bookings not honoured by the Applicants, payable within 7 days of default.
32. The Receivers agree to refund to the Applicants any surplus of funds remaining after a final reconciliation of all amounts owing and paid referred to in these orders.
33. All parties, Culture Map Pty Ltd and the Receivers, by their respective solicitors, undertake to the Court to do all things reasonably necessary to be done on their respective part, in a timely manner, as is required to give effect to these Orders and Notations.
34. Attachment E [annexed to the stamped copy of these orders as made on 9 May 2019] is the Receivers’ checklist of handover arrangements, including stocktake, to be implemented unless otherwise agreed between the Receivers and Ozmen.
35. Nothing in these orders prevents Ozmen and/or Kanki from seeking to be reimbursed by Neptune in respect of any fees and costs paid to the Receivers including without limitation for the Payment Purpose in accordance with Orders 16, 17 and notations 30 and 31.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
1 As part of the reasons I gave on 3 April 2019, I found that Neptune would be entitled to a ship’s mortgage over Seadeck to secure any sums that it might ultimately be found entitled to receive from either Kanki or Entertainment.: Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd  FCA 721 (I have used the same abbreviations in these reasons as in my earlier ones). The parties have negotiated, over an extended period since then, sometimes with input from me, the terms of orders, security documents and other matters to finalise how to give effect to the reasons that I gave, including for the return of the ship to Entertainment, and the arrangements that should be in place pending the determination of the outstanding claims each side has against the other arising from the operation of the joint venture including entitlements or liabilities that arose after when I found the joint venture terminated on 25 July 2017 and the charterparty on 4 August 2017, and in respect of the extra expenses to which the parties have become subject as a result of the appointment of the receivers.
2 On 17 April 2019, I ordered that the parties provide particulars of the amounts that each would claim in the subsequent part of the proceedings. Neptune produced a schedule of 10 sums that it claimed and five sums that it identified were offsetting claims that I set out below together with what Entertainment and Kanki produced as their own additional claims for offsets:
Neptune’s particulars of amounts claimed on reference
Shared costs pursuant to cl 9(d) of the joint venture agreement (being 50% of $1,797,975.90).
Interest on the above sum (at 10% calculated from the date costs were incurred)
Advance on profits paid to Kanki or at Kanki’s direction in FY 2017
Outstanding loans to Mert Ozmen
Tax liability in relation to business operations for FY 2017 to FY 2019 (to be accounted for in any damages assessment)
Superannuation liability from FY 2017 to FY 2019 (to be accounted for in any damages assessment)
Loans to the joint venture by Gavin Douchkov and Mel Como for working capital following completion of the repairs and fitout
50% value of Seadeck brand
Interlocutory costs order in favour of Neptune (provisional)
Wages (Mr Douchkov and Mr Como) for the period from 16 November 2016 to 28 April 2019
Neptune’s position on offsetting claims (to the extent quantified)
Profit share reduction due to depreciation and amortisation
Moneys reinvested in the joint venture by Neptune from the above sum
Profit share paid to trust
Moneys paid to Terry Borella not attributable to the preparation of profit and loss statements pursuant to the JVA
Applicants’ provisional claim for costs
Entertainment and Kanki’s revised calculation overview
Less provision for costs
Neptune – excluding value of the Brand
Profit since August 2017
Minimum total to Kanki
*Does not include unpaid profit share or expectation damages
3 During the case management hearing on 2 May 2019, after hearing the parties’ submissions on their various positions, I indicated that, doing the best I then could, there should be an allowance of $750,000 secured by a ship’s mortgage given to Neptune that would take priority over any security that Culture Map held.
4 Since then the parties have engaged in further negotiations, with disputations, and made further submissions. Those included Neptune relying on what it asserted was a valuation of the “Seadeck International” brand, being the intellectual property comprising social media accounts, internet advertising and other goodwill, in respect of which both Neptune and Kanki own a half share. Kanki sought orders on an interim basis, pending the final determination of the parties’ rights, that Neptune make over all of the passwords and other tools to enable Kanki to utilise all the social media assets. In effect, as the parties explained in the course of argument, the social media accounts afforded the joint venture the ability to communicate with persons on platforms such as Facebook or Instagram in a manner equivalent to what, in days past, would have been called a mailing list of clients, or potential clients, and contacts.
5 I initially took the view that I should require Neptune to make those passwords and tools available and that Kanki should pay a licence fee pending the determination of the value of those assets to the joint venturers. That led Kanki and Entertainment to proposing that, as part of the security arrangements, any monthly sums paid by way of licence fee should be brought to account if Kanki or Entertainment decided, after seeing what the valuation of that intellectual property was, to buy it at that value. On reflection, that would not be an appropriate way of resolving this dispute.
6 The dispute arises because, as noted above, item 8 in Neptune’s claims comprises what it asserted was 50% of the value of the brand, being $1.5 million, which valued the brand at $3 million. I observed that this seemed to be an extraordinarily high figure in light of the checkered apparent performance of the joint venture under Neptune’s stewardship. According to the accounts it produced to its joint venture partner, nothing like a maintainable profit into the future was being earned in an amount sufficient to warrant a capital value of $3 million.
7 This led to Neptune filing and serving yesterday afternoon an appraisal or valuation report of the Seadeck International joint venture by Archangel Wealth and its principal, Sam Kontogiorgis. That report arrived at an assessment of $2,312,500 as the valuation of the joint venture business based on the accounts. The appraisal was served two days later than I had ordered. Kanki has not had time to engage its own expert.
8 On its face the appraisal proceeds on an erroneous basis. First, it did not take into account that the joint venture had a limited life. Based on the provisions of cl 5 of the JVA, had the joint venture proceeded to the termination of the initial three-year term in about October 2019, cl 5(b) would have given Neptune an option to extend the life of the joint venture for another three years. There was also a further, but defeasible, option to extend the JVA for another three years. However, Kanki had the unfettered right to refuse to grant to extend the JVA option for the second period. Therefore, in all probability on the material available, the joint venture’s potential further life over which its earnings might have been maintainable, is likely to have been only about 3.5 years.
9 Secondly, the appraisal took no account of the fact that the joint venturers were not paying for the charter hire of the income-earning asset, namely, the ship, Seadeck. Nor did the appraisal have regard to the fact that that asset bore the name Seadeck and the ship’s name could be used after the termination of the joint venture without restriction on its use as the name of the vessel which might sail the voyages that would earn revenues. Fairly understood, the joint venture was proceeding on the basis that the return to Entertainment would be that its nominee, Kanki, would earn half of the net profits of the venture as, in effect, its reward or charter hire for making the ship available as the basis on which the joint venture would generate its income.
10 Almost none of the figures put forward by the parties are supported by firm evidence. That is understandable because that evidentiary exercise is yet to take place. Both sides recognised that if they had to lead admissible evidence at the trial that has proceeded to date, it would have lasted it far longer and been more expensive, and would have delayed a resolution of the status of the parties’ relationship by a considerable time.
11 There are difficulties with figures put forward by both sides. Ultimately, Neptune propounded that, instead of the intellectual property rights having a value of 50% of $3 million, their values should be reduced from $1.5 million to $600,000. This was based on Archangel’s appraisal that the future maintainable earnings were about $850,000 per annum, after adjusting Mr Borella’s unapproved accounts and some of the material in the Xero accounts. In substance, after those adjustments, Archangel concluded that the net profit before interest and tax in the years ended, first, 30 June 2017, was about $300,000, secondly, 30 June 2018, was about $910,000, and, last, for the 12 months projected to 30 June 2019, $800,000. Archangel weighted the 2018 and 2019 figures in arriving at its valuation and assessment. It is not necessary to detail its methodology.
12 Neptune recognised the failure of Archangel to take account of the value of the hire of the ship in arriving at its appraisal of the future maintainable earnings. Neptune suggested proceeding on the basis that if one added in the value of Kanki’s half share of the future maintainable earnings as the value of the hire for the ship, Archangel’s valuation effectively should be halved, in which case the value of Neptune’s half share in the appraisal should come down to about $600,000.
13 The problem with that broad assessment is, of course, that the future maintainable earnings figure is not a valuation of the contribution of whatever the intellectual property rights or brand may have made to the earnings generated by the ship or the joint venture. The ship could conduct, in anybody’s management, a business of providing luxury cruises on Sydney Harbour. It could be expected that, after a time, whoever was operating the ship would be able to generate substantial goodwill, using social media and the internet in a similar way to what the joint venture had done, to create a sufficient public profile and recognition of their trading name and association with Seadeck, if the vessel remained so named, or with whatever she may be rechristened.
14 Kanki and Entertainment proceeded to suggest that the amount of the security value to be secured by the mortgage should be no more than $600,000. In doing that, they accepted the figures for shared costs, interest and costs of the interlocutory proceeding, being items 1, 2 and 9 in Neptune’s particulars. They deducted $800,000 that Neptune had accepted that Kanki and Entertainment could offset as their entitlement to costs of the proceeding to date in arriving, broadly, at the suggested $600,000 security sum. Entertainment and Kanki then calculated, erroneously as it turned out in the course of the argument today, about $2.14 million as the value of the balance of Neptune’s claims in its particulars. In fact, the balance of Neptune’s claims totalled about $2.3 million, excluding the value of the brand of $600,000.
15 In its offsets, Kanki initially claimed that the disputed accounts revealed that the joint venture had earned a profit of about $3.4 million since August 2017, after adding back the value of the catering costs. Ultimately, the add backs and adjustments made by Archangel suggested that the profit, before any auditing or detailed examination occurs in the next phase of this proceeding, may be in the order of about $1.8 million to $2 million for the period since August 2017. However, for the purposes of trying to work out a sum to include in the ship’s mortgage, I have used a profit figure of $1.6 million. That includes an allowance for the loss between 1 and 24 July 2017 before the termination of the joint venture, and the profits to about April 2019, using Archangel’s adjusted profit figures as a broad guide.
16 Kanki, prima facie, also has a reasonably arguable case that it is entitled to about a 50% share of the gross profit for the year ended 30 June 2017 of about $1.37 million, based on other documents in evidence. Kanki is also to pay, or has paid, approximately $1 million to the receivers in order to procure their discharge.
17 All of those factors suggest that at some point the calculation of actual profit, as opposed to future maintainable earnings, or the real net profit of the business, may be susceptible to some significant adjustments.
18 In my April 2019 reasons, I found that the shared costs specified in schedule 1 of the JVA comprised a figure of about $940,000 that the parties arrived at after considerable negotiations. Those negotiations had occurred in the context that Mr Douchkov and Mr Como were well aware that, to the date of the JVA, they had spent far more money than $940,000 in bringing the vessel to Australia and in causing her to be refitted. As I noted at , both Mr Douchkov and Mr Como had asserted in their statutory declarations to the ILGA in mid-2016, that, to July 2015, they had spent $2.8 million and $1.35 million respectively, and that Mr Douchkov, in explaining the amount of about $5 million as their contributions contained in Mr Konnaris’ and other reports in February 2017, also had included whatever had been spent in the meantime. He said in cross-examination, as I found at , that only about 10% of that $5 million, or about $500,000, for which Neptune had claimed reimbursement from the joint venture’s revenue, had been incurred in the period after July 2015.
19 It follows, in my assessment, that the claimed figure of about $900,000 in item 1 of Neptune’s particulars as Kanki’s liability for half of the shared costs of about $1.8 million is not consistent with the evidence to date. That claim is much greater than the total shared costs of about $940,000 in schedule 1 of the JVA, when taken together with Mr Douchkov’s estimated total expenditure to July 2016 of an extra $500,000. Based on Mr Douchkov’s $500,000 figure, it is possible to add $250,000 to Kanki’s possible liability for the shared costs. That would mean that the item 1 should probably have been about $670,000 and the interest in item 2 about $250,000.
20 Likewise, in items 7 and 10, Neptune claimed further amounts in respect of loans and wages for which Kanki was liable to it or Mr Douchkov and Mr Como. Those claims that cannot be said to be firm figures of entitlement. Indeed, no doubt some, and certainly the wages amounts, will be the subject of dispute. Nonetheless, in my opinion, to the extent that each is able to establish the contributions he made, he will be entitled at minimum to some just allowance for his work and effort that is not otherwise remunerated in the accounting exercise that is to come.
21 Because of the difficulty in working out what the value of the brand is and how it ought to be taken into account in arriving at a security sum, I came to the view that each side should elect whether it wished, in Entertainment and Kanki’s case, to buy, and, in Neptune’s case, to sell, at the value of whatever the intellectual property rights are found to be worth by the valuation to be made. In the event that the parties agree to a sale, then Neptune will be entitled to a licence fee during the period between now and when the sale is completed, but the instalments of that licence fee should be offset against the ultimate purchase price for which Kanki or Entertainment will be entitled to credit.
22 In my opinion, the value of the intellectual property rights cannot be effectively a half share of the entire future maintainable earnings of the joint venture (even after allowing for the worth of the hire of the ship) on the broad valuation exercise that I have described. Clearly, the future maintainable earnings will be a product of, among other matters, the fact that the ship will be an attractive venue for people to be on, and that competent people will be able to market her using social media and the internet under whatever name or branding she sails. In those circumstances, the likely value of the intellectual property rights is not reasonably capable of being seen as equivalent to the whole of the future maintainable earnings of the business operated by the joint venture. I consider that the value of Neptune’s half share to be, at the highest, worth about $250,000 on the figures that I have estimated as a best case.
23 It is impossible to arrive with precision or certainty at a completely satisfactory estimate of the value of Neptune’s best case. Having regard to all of the less than perfect estimates for sums each party claims to be due by one to the other, and to ensuring that Neptune is provided with reasonable protection in the event that its best case succeeds, I think that overall, the figure of $750,000 that I originally came to will provide Neptune with a reasonable sum in the ship’s mortgage to secure it for the net result of its best arguable case.
24 Having regard to the material, evidence and arguments before me, I will order that, if the parties elect to buy and sell the intellectual property, Entertainment give Neptune a ship’s mortgage for up to $750,000 as security for its best arguable case. If one or both sides elect not to buy or sell the intellectual property, then it seems to me that that sum should be reduced to $500,000 by deducting the value of $250,000 that I have ascribed to Neptune’s half share of the intellectual property rights.