Low-profile millionaire Avi Silver has admitted to a court that key numbers needed to float the United Petroleum service station empire he co-owns were not ready before a make-or-break all-hands meeting that was supposed to sign off on the deal.
Mr Silver spent much of yesterday in the witness stand of the Victorian Supreme Court, answering questions under oath as part of a lawsuit in which he is suing and being sued by his former lawyers Herbert Smith Freehills over the failed deal.
Cross-examination by Phillip Crutchfield QC, counsel for Freehills, also revealed inconsistencies between Mr Silver’s recollection of events during a crucial period in October 2016 and his phone records, and explored his history of fee disputes with other professional advisers.
Work on the UP IPO brought together a clutch of top-tier lawyers, advisers and bankers from Freehills, Credit Suisse, Morgan Stanley and KPMG, together with a star-studded board that was to run the new public company.
The board was chaired by former Cleanaway director Martin Hudson and also included Premier director and former investment banker Tim Antonie, together with Harvey Norman chief operating officer John Slack-Smith — although Mr Silver told the court Mr Slack-Smith rarely attended meetings.
Mr Hudson is also being sued by Mr Silver and his business partner, Eddie Hirsch, for allegedly failing to do everything he could to get the $500 million IPO away. Dates for UP’s stockmarket listing kept moving back throughout 2016 as numbers changed, the court was told.
Complicating matters, UP was from early October also separately exploring the sale of the business to Japan’s Toyoda Gosei as part of what Mr Silver called a “dual-track” process.
Work on the IPO came to a head on October 23 — a Sunday — when the deal team and the board met at Freehills’ Melbourne office. At stake was the approval of a “pathfinder” prospectus for distribution to analysts the coming week so that they could value the company.
Mr Silver has previously told the court he expected the meeting to approve the IPO and felt “ambushed” when he was told Mr Hudson had pulled the plug.
However, he yesterday told the court that at a meeting at the offices of KPMG before the Freehills meeting, KPMG partner George Svinos told him “KPMG was running late with the cash-flow” figures. Mr Svinos told him the figures could be ready within 24 to 36 hours “and that should not stop us from sending it to the analysts”.
“Under no circumstances did he say, ‘I don’t think it’s going through’.”
Mr Crutchfield also took Mr Silver to his history of fee and other disputes with other lawyers and professionals. Mr Silver agreed he had arguments over fees with law firms Arnold Bloch Leibler and Minter Ellison, but said he came to a “settlement” with Corrs and denied any dispute with Clayton Utz.
“Clayton Utz, we have left Clayton Utz after a failed deal in South Korea … it was finished very amicably,” he said.
He added that McGrathNicol served UP with a wind-up notice during a dispute over a bill for “a criminal investigation of a person that embezzled money”.
“They gave us the wrong advice,” he said. “They said that we should not pursue the individual.” However, after taking over the investigation UP “quickly found the evidence”.
“As a result we had a sit down with them, we argued with them and we settled a $61,000 bill for $30,000, and we moved on.”
Justice James Elliott referred the case to mediation before Associate Justice John Efthim next Wednesday.
Extracted from The Australian.