Paviour-Smith denies NZX only spent 1/10th of $100m development budget on grain exchange

Monday 9th May 2016

NZX director Neil Paviour-Smith told the High Court that the company spent no more than A$10 million on developing the Clear Grain Exchange but rejected former owner Ralec's claims that amounted to just one-tenth of what it had promised to invest.

Paviour-Smith, who is also managing director of brokerage Forsyth Barr, is the first witness to be called before the hearing, which is expected to last another eight weeks. He began giving evidence on Friday and will be the only NZX director to appear, although former chairman Andrew Harmos and former chief executive Mark Weldon are also scheduled to give evidence in the coming weeks.

NZX claims Clear’s former owners, Grant Thomas and Dominic Pym, and their companies Ralec Commodities and Ralec Interactive misled NZX with “wildly inaccurate” forecasts when it bought Australian Clear Grain Exchange, a commodities trading platform, in October 2009. Ralec subsequently filed a counterclaim against NZX, later adding Weldon to the list of defendants. It claims NZX, which bought the platform for A$7 million with the potential for a further A$14 million of earnouts, failed to fund the exchange sufficiently.

NZX is suing for between A$20.7 million and A$37.6 million, and Ralec has countered with a suit totalling A$14 million plus bonuses.

Ralec's QC Tim North questioned Paviour-Smith over A$140 million in development spending which the NZX discussed in internal documents. Of that, A$39 million was for the acquisition of Clear, with the remaining A$100 for development. A$30 million was for the development of new markets including grain, $10 million was for the architecture of the agri portal platform and $60 million was for data acquisitions to deepen the data analysis and media that the agri platform would generate.

Paviour-Smith said his best estimate of what had been spent was no more than $10 million, but rejected North's characterisation of the spend as "no more than one-tenth of what was committed."

"It feels like the millionth time I'm saying this - a business case in the context of NZX refers to a proposal," Paviour-Smith said. "There was no investment commitment for Alcazar," he said, using the NZX nickname given to the agri portal project.

On Friday, Paviour-Smith said that while there was a commitment in principle to the strategy of developing the portal, it was not a financial commitment of A$100 million, under repeated questioning from North on how "commitment" could be interpreted.

North also questioned Paviour-Smith over the responsibilities of Clear's former owners, Grant Thomas and Dominic Pym, who remained within the company after selling it to NZX in 2009 but both lost their jobs later. On Friday, Paviour-Smith said Clear had fallen "well short" of earnout targets in the three years following the acquisition.

"You have suggested a continuous obligation from the Ralec party after acquisition," North said. "It wasn't their responsibility to make sure NZX would get market share."

Paviour-Smith said the idea that Pym and Thomas were no longer responsible for Clear's performance after it was sold to NZX was "too black and white" as the two stayed on as senior employees as well as being vendors with earnouts based on Clear's performance until 2012.

North asked Paviour-Smith whether he was saying Pym and Thomas had not used their best endeavours as employees. Paviour-Smith said he wasn't aware of the details, but thought both men's employment at Clear following NZX's acquisition had been terminated as a result of dissatisfaction.

The case, which is ongoing, pre-dates much of NZX's existing management, having first hit the courts in 2011.

North also questioned Paviour-Smith about Mark Weldon's note-taking habits at board meetings. Paviour-Smith said he had seen Weldon taking notes at meetings, which he would expect a CEO to do.

BusinessDesk.co.nz

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