Dispute valuations. Lotus Amity provide a wide range of dispute valuations for transaction disputes, shareholder disputes and matrimonial disputes.
For frequently asked valuation questions please click the following links:
- What is the definition of value?
- What are the valuation rules and guidelines?
- What to expect in a valuation report?
- How much is a valuation report?
Dispute Valuations Experience
Misleading and deceptive representations. The applicants acquired the assets and goodwill of a wholesale lighting business. The applicants’ alleged the respondents made misleading and deceptive representations, which were relied on by the applicants in entering an agreement for sale of the business. Dispute Valuations were provided under different scenarios to assist in quantifying the loss. An examination and detailed analysis of the books and records was carried out to assist the court. Federal Court. Trade Practices.
Breach of warranty. The applicant acquired a retail business and claimed for damages for breach of a warranty in the sale agreement. The vendor provided a warranty that it would disclose all relevant information and misrepresentations were alleged to have been made. A dispute valuation was provided based on the information provided at the time of the transaction to assess the reasonableness of the transaction. Federal Court. Trade Practices.
Partner dispute. Dispute Valuation of a food wholesaler and retailer to assist partners in a dispute and fairly exit the business.
Minority oppression. Dispute Valuation of an air-conditioning business to assist the minority shareholder claiming damages for oppression.
Family shareholder dispute. Dispute Valuation of a vineyard under the terms of the shareholder agreement to assist the exist of the brother.
Share portfolio valuation. In relation to the matrimonial pool of assets, valuing a large range of shares and options in low volume traded stocks, with influential holdings.
Business valuations. In relation to the pool of assets, the dispute valuation of a family owned livestock trucking business
Jewelry retailer dispute valuation, for a matrimonial dispute
When market value isn't fair (value)
For valuation purposes Fair Market Value and Fair Value aren’t the same. Not knowing the difference could be a costly mistake. For other forensic accounting articles click here.
Fair Market Value
Fair Market Value is a commonly defined in the valuation world. It’s the negotiated price between a willing buyer and willing seller in an open and unrestricted market. Where the buyer and seller are acting at arms-length. The parties are knowledgeable and not anxious to do a deal.
So in efficient free global stock markets, where share prices reflect all relevant information, then we could assume that the stock price indicates the Fair Market Value of a small parcel of shares (not control) of a listed company. Of course, this depends on a number of further assumptions, such as there being plenty of buyers and sellers for the stock, ie. the stock is liquid (which many smaller caps are not).
As an example, say we take a business to market in a structured way. We contact all potential buyers all over the world, including competitors, private equity, wealthy individuals, consolidators, etc. We create a orderly, timely and competitive bid process. So would the various bids give us a Fair Market Value range?
Probably (hopefully) not. If the competitive bid process was so good, it would artificially push up the price as the buyers become anxious to buy. Which is of course exactly what we do want to happen.
Buyers might start to incorporate synergy benefits in their offer pricing, ie. share some of the future anticipated value with the seller. The Fair Market Value definition doesn’t include any synergy benefits.
Price v Market Value
As Warren Buffet famously points out:
“Price is what you pay. Value is what you get”
Mr Buffet should know. He’s made his vast fortune in identifying and exploiting the difference – to the chagrin of a number of seemingly hoodwinked business owners charmed by Mr Buffet’s amiable advances.
Just because the market says a stock price is so and so it doesn’t necessarily hold that is the value of the stock. Price is an objective guide. Valuation is subjective.
Fair Value is a whole different beast. Where as Fair Market Value is commonly defined by the valuation bodies, Fair Value is a term often incorporated in legislation and so we need to look to the courts for interpretation.
As an example, in the Delaware Courts in the US, where there is significant Fair Value related litigation, the courts have generally found the following in relation to defining Fair Value:
- there should be no discount for lack of marketability1
- Fair Value represents a proportionate interest in a going concern2
- Fair Value represents the investment position of the shareholder3
Simply put, this would mean that the Fair Value could potentially be worth (significantly) more than Fair Market Value.
Which practically seems to makes sense. If you’re a minority shareholder (say 5%) in a privately held small business and you’re being oppressed by the other majority shareholder (95%), then the Fair Market Value of your stake isn’t going to be very much. Who is practically going to buy the shares?
However, your pro-rata share of the value of a 100% controlled business as a going concern investment is going to be quite different. Or simply putting it another way, if all the shares were sold in an orderly market transaction and you got your 5% what would that be worth. A whole heap more!
- Swope v Siegel-Robert, Inc, United States District Court, 1999
- Tri-Continental Corp v Battye, Delaware Supreme Court, 1950
- Cavalier Oil Corp. v. Harnett, Delaware Supreme Court, 1989