Business reporter for the NZ Herald

Spinner to fight case on his home pitch

Justice Rebecca Edwards.
Justice Rebecca Edwards.

Former test cricketer Graham Vivian has won a rematch over whether New Zealand is the right country to resolve a dispute arising from the sale of the synthetic turf business he founded.

Companies directed by the former leg-spinning all-rounder - who played for New Zealand in the 1960s and early 1970s - are in a stoush with multinational giant Ten Cate, which paid almost $50 million for TigerTurf shares. Vivian started TigerTurf in 1981, two years after his retirement from cricket.

Graham Vivian
Graham Vivian

By the time Ten Cate agreed to buy its shares in 2009, TigerTurf had expanded into Australia, the United Kingdom and the United States.

While the sale of the first two tranches for about $41 million went off without a hitch, the parties are in dispute over the third tranche - priced at $7.72 million.

After exercising its options to buy this third tranche in 2010, Ten Cate alleged breaches of warranty.

It alleged the TigerTurf directors failed to disclose contingent liabilities during due diligence.

While the deal was due to settle in 2011, Ten Cate said its warranty claim exceeded the agreed share price.

The warranty claims went to an expert for assessment and TigerTurf was paid $7.2 million in March 2013. The rest of the original purchase price is in a trust account.

Both sides have launched legal action against the other - Ten Cate in the United States and TigerTurf at the New Zealand High Court.

In the local proceedings, TigerTurf wants interest on the price of the last tranche from the original settlement date to the date of payment. It also wants $560,000 in damages after Ten Cate allegedly wrongly terminated a consultancy deal.

It is also after a declaration that it is not liable under Ten Cate's warranty claim and seeks damages on this matter of $511,000.

The case has already been to the Court of Appeal on pre-trial issues and the question of whether Texas was a more appropriate place than New Zealand for determining the warranty claim came back to the High Court last November to be re-argued.

Ten Cate argued TigerTurf's challenge in this country was a "tactical stunt". But Justice Rebecca Edwards, in a decision released last month, did not think it could be dismissed as a strategic ploy. "Overall, I am not persuaded that Texas is clearly or more distinctly appropriate than New Zealand for the trial of the action."

- NZ Herald

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