Pursuant to s 33K of the Federal Court of Australia Act 1976 (Cth) (FCAA), the Applicant have leave to amend the group definition contained in the Originating Application and Amended Statement of Claim in the form contained at Schedule F and G to these orders.
Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth) (FCR), the Applicant have leave to amend the Originating Application in the form contained at Schedule F to these orders.
Pursuant to r 16.53 of the FCR, the Applicant have leave to amend the Amended Statement of Claim in the form contained at Schedule G to these orders.
The applicant is to file and serve the Further Amended Statement of Claim and the Amended Originating Application by 15 December 2017.
Mediation
Pursuant to s 53A(1) of the FCAA, the Court refers these proceedings to mediation which is to occur by no later than 13 July 2018.
The mediation is to be conducted by a mediator agreed between the parties, with such agreement to occur by no later than 9 February 2018. If the parties cannot agree to a mediator by this date, the mediator is to be National Operations Registrar Lagos.
Notices
Pursuant to s 33J of the FCAA, 4.00pm on 30 March 2018 is fixed as the date before which a Group Member (as defined in the Further Amended Statement of Claim) may opt out of this proceeding or register to participate in this proceeding in accordance with these Orders (Deadline).
Pursuant to s 33X and s 33Yof the FCAA, the form and content of the notice set out in:
a. Schedule A to these Orders is approved (Opt Out Notice);
b. Schedule B to these Orders is approved (Registration and Opt Out Notice); and
c. Schedule C to these Orders is approved (Cover Letter).
Pursuant to s 33X(5) of the FCAA and in accordance with these Orders:
a. notice of the terms as set out in the Opt Out Notice are to be given to Group Members who have entered into a litigation funding agreement with IMF Bentham Limited as at the time of filing of the Further Amended Statement of Claim (Existing Registered Group Members); and
b. notice of the terms as set out in the Registration and Opt Out Notice is to be given to all other Group Members (Other Group Members).
Distribution of the Opt Out Notice
Pursuant to s 33Y(3) of the FCAA, the Opt Out Notice is to be sent by IMF Bentham Limited on or before 8 January 2018 to the Existing Registered Group Members by ordinary post or e-mail to their last known postal or e-mail address.
The Opt Out Notice may be amended by the Applicant before it is emailed, posted, displayed or published in order to correct any website or email address or telephone number or other non-substantive error.
Distribution of the Registration and Opt Out Notice
Pursuant to s 33Y(3) of the FCAA, the Registration and Opt Out Notice is to be given to the Other Group Members according to the following procedure (the costs of Link Marketing Services Limited and its subsidiary Link Digicom (Link) are to be invoiced to and paid by the Applicant):
a. the Respondent shall cause its share registry service provider, Link, to send the Registration and Opt Out Notice and Cover Letter (as applicable) in accordance with the requirements set out in the protocol in Schedule E (Link Protocol);
b. to the extent applicable and to facilitate its intents and purposes, the Respondent's solicitors are to comply with the requirements set out in the Link Protocol;
c. by 15 December 2017, the Respondent shall provide a copy of this order 12 including the Link Protocol to Link;
d. should the Respondent become aware of any actual or potential non-compliance with the Link Protocol, the Respondent is to notify the Applicant within 2 business days of so becoming aware. The Applicant and the Respondent are directed to advise the Court of such non-compliance by email to the Associate to Wigney J;
e. by 14 January 2018, IMF Bentham Limited will enable a registration portal to be created on their website for Other Group Members to register their details and obtain the Registration and Opt Out Notice via e-mail or post; and
f. by 14 January 2018, the solicitors for the Applicant will cause the Registration and Opt Out Notice to be displayed on their website and to remain for the period to the Deadline.
On or before 8 January 2018, the District Registrar of the New South Wales District Registry of the Federal Court of Australia cause the Opt Out Notice, the Further Amended Statement of Claim, Defence to the Amended Statement of Claim, and the most current iterations of the Cross-Claims and Defences to the Cross-Claims to be:
a. posted on the Federal Court of Australia website; and
b. made available for inspection at the District Registry of the Federal Court of Australia in Melbourne, Sydney, Canberra, Brisbane, Adelaide, Perth, Hobart and Darwin;
for the period to the Deadline.
In addition to order 13, on or before 14 January 2018, the District Registrar of the New South Wales District Registry of the Federal Court of Australia cause the Registration and Opt Out Notice to be:
a. posted on the Federal Court of Australia website; and
b. made available for inspection at the District Registry of the Federal Court of Australia in Melbourne, Sydney, Canberra, Brisbane, Adelaide, Perth, Hobart and Darwin;
for the period to the Deadline.
Registration and Opt Out
Subject to Order 19, by the Deadline, Other Group Members who wish to participate in the distribution of any amount agreed in settlement of this proceeding must register by completing and submitting the registration form as annexed to the Registration and Opt Out Notice as Annexure 2 to Schedule B (Group Member Registration Form) via:
a. email to IMF Bentham Limited at 402770@imf.com.au; or
b. post to IMF Bentham Limited at PO Box Z5106, St Georges Terrace, Perth WA 6831;
(Collectively, New Registered Group Member).
In completing the Group Member Registration Form, and in order to register for the purpose of Order 15 above, each Other Group Member will be required to submit:
a. the group member's name and address and/or email address;
b. any relevant Holder Identification Number (HIN) or Security Reference Number (SRN) on the ASX associated with that group member;
c. the number of Ashley Services Group Limited securities acquired by that group member:
i. pursuant to the document the Respondent lodged with ASIC on 7 August 2014 titled "Prospectus for the offer of 59.5 million shares at an issue price of $1.66 per share to raise a total of $98.7 million"; and/or
ii. otherwise during the Relevant Period (as defined in the Further Amended Statement of Claim);
d. the number of Ashley Services Group Limited securities disposed of by that group member during the Relevant Period (as defined in the Further Amended Statement of Claim);
e. for each acquisition of Ashley Securities acquired during the Relevant Period, all details regarding the acquisition, including in respect of each such acquisition:
i. the date of acquisition;
ii. the quantity of securities acquired; and
iii. the consideration paid (including brokerage);
f. for each disposal of Ashley Securities during the Relevant Period, all transaction information regarding the disposal, including in respect of each such disposal:
i. the date of disposal;
ii. the quantity of securities disposed; and
iii. the consideration received (net of brokerage); and
g. either documentary evidence in support of the matters the subject of items (c) to f or a statutory declaration in the form as set out in the Registration and Opt Out Notice declaring as to the truth and accuracy of the matters the subject of item (c) to f above.
Pursuant to s 33ZF of the FCAA, subject to further order, any Group Member who wishes to opt out of this proceeding must, before the Deadline, deliver an opt out form to the New South Wales District Registry of the Federal Court of Australia.
If, on or before the Deadline, the solicitors for any party to the proceeding or IMF Bentham Limited receive a notice purporting to be an opt out form referable to this proceeding, the solicitors or IMF Bentham Limited must file the notice in the New South Wales District Registry of the Federal Court of Australia within 14 days after receipt, and the notice shall be treated as an opt out notice received by the Court at the time it was received by the solicitors or IMF Bentham Limited.
Other orders in aid of mediation
Pursuant to section 33ZF of the FCAA, and subject to any further order of the Court, any Other Group Member who by the Deadline does not register or opt out of the proceedings in accordance with the manner provided for in these Orders (Unregistered Group Member):
a. will remain a group member for all purposes of this proceeding; and
b. shall not, without leave of the Court, be permitted to seek any benefit pursuant to any in-principle settlement (subject to the approval of the Court) of this proceeding reached at the mediation scheduled to commence prior to 13 July 2018, or within 2 months after the first day of that mediation.
Nothing in Order 19 precludes any Unregistered Group Member from having their claims considered at any mediation or settlement that takes place at some future time, if no in-principle settlement of this proceeding is reached at the mediation scheduled to commence prior to 13 July 2018, or within 2 months after the first day of that mediation.
The solicitors for the Applicant, the solicitors for the Respondent and the solicitors for the Cross-Respondents each have leave to inspect the Court file and copy any Opt Out notices filed.
Pursuant to s 33ZF of the FCAA:
a. the Applicant's solicitors will deliver to the Respondent's and each of the Cross Respondents' solicitors (in electronic form) deidentified trading data for group members (Trading Data) as follows:
i. by 28 February 2018, for the Existing Registered Group Members;
ii. by 27 April 2018, for all New Registered Group Members;
b. the Trading Data must contain:
i. a unique identification number for each Existing Registered Group Member and New Registered Group Member; and
ii. the information of the kind set out in Orders 16.c to 16.f above; and
c. liberty is reserved to the solicitors for the Applicant to amend the Trading Data referred to in Orders 22.a and b above, if it appears that there has been an omission or inclusion resulting in an error.
The costs of and incidental to the procedure set out in Orders 1 to 22.c above are costs in the proceeding. For the avoidance of doubt, answering enquiries by group members and members of the public in relation to the each of the notices referred to in these Orders is work incidental to Orders 7 to 22.c above.
Pursuant to s 33ZF of the FCAA:
a. by 9 February 2018, in accordance with rule 20.16 of the Federal Court Rules 2011 (Cth) the Respondent and Cross-Respondents are to give initial verified discovery of documents within the categories listed in Schedule D; and
b. discovery is to be provided electronically in accordance with a document management protocol agreed between the parties;
The matter be listed for a case management hearing at 9.30am on Tuesday 31 July 2018.
Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE A
FEDERAL COURT OF AUSTRALIA
ASHLEY SERVICES GROUP CLASS ACTION
NOTICE OF RIGHTS TO OPT OUT OF THE CLASS ACTION
WARNING: YOU MAY ALSO SHORTLY RECEIVE ANOTHER NOTICE TITLED "NOTICE OF RIGHTS TO PARTICIPATE IN SETTLEMENT RESULTING FROM MEDIATION OR OPT OUT" - YOU SHOULD IGNORE THAT NOTICE. AS YOU HAVE ALREADY SIGNED A FUNDING AGREEMENT WITH IMF BENTHAM YOU NEED TO ONLY CONSIDER THIS NOTICE
WHY IS THIS NOTICE IMPORTANT?
A class action has been commenced in the Federal Court of Australia by Richard John Findlay Bradgate as Trustee of the Bradgate Superannuation Fund (Mr Bradgate) against Ashley Services Group Limited (Ashley) (Federal Court Proceedings numbered NSD2074/2016).
The claim arises out of allegedly misleading statements and material omissions made in Ashley's prospectuses issued prior to its listing, and allegedly misleading conduct and failures to comply with continuous disclosure obligations by Ashley which occurred after its listing, which caused loss and damage to Ashley shareholders who acquired Ashley shares pursuant to Ashley's prospectus dated 7 August 2014 or in the period from 21 August 2014 to 26 April 2015 (Relevant Period).
The Federal Court has referred this class action to mediation which is to occur by no later than 13 July 2018 (Mediation) and has ordered that this notice be published for the information of persons who are members of the class and who have entered into a litigation funding agreement with IMF Bentham Limited as at the time of filing of the Further Amended Statement of Claim on 15 December 2017 in this action.
You should read this notice carefully. Any questions you have concerning the matters contained in this notice should not be directed to the court. If there is anything in it that you do not understand, you should seek legal advice.
WHAT IS A CLASS ACTION?
A class action is an action that is brought by one person (referred to as the "Applicant") on his or her own behalf and on behalf of a class of people against another person (referred to as the "Respondent") where the Applicant and the group members have the same or similar claims against the Respondent.
Group members in a class action are not individually responsible for the legal costs associated with bringing the class action. In a class action, only the Applicant is responsible for the costs.
Group members are "bound" by the outcome in the class action, unless they have opted out of the proceeding. A binding result can happen in two ways: a judgment following a trial, or a settlement at any time. If there is a judgment or a settlement of a class action, group members will not be able pursue the same claims and may not be able to pursue similar or related claims against the respondent in other legal proceedings. Group members should note that:
(a) in a judgment following trial, the Court will decide various common factual and legal issues in respect of the claims made by the Applicant and group members. Group members will be bound by those findings, whether or not they are favourable to them (unless they are appealed). Importantly, if there are other proceedings between a group member and the respondent, neither of them will be permitted to raise arguments in that proceeding which are inconsistent with a factual or legal issue decided in the trial of common issues in the class action. This means that if the issues are resolved against the Applicant, group members will be unable to pursue claims they have which are the same as the Applicant's claims, and will not be able to pursue other claims which are dependent upon common issues which have been resolved against the Applicant; and
(b) in a settlement of a class action, where the settlement provides for compensation to group members it is likely to extinguish all rights to compensation which a group member might have against the respondent which arise in any way out of the events or transactions which are the subject-matter of the class action.
If you consider that you have claims against a respondent which are based on your individual circumstances or otherwise additional to the claims described in the class action, then it is important that you seek independent legal advice about the potential binding effects of the class action before the deadline for opting out (see below).
WHAT IS THIS CLASS ACTION?
This class action is brought by Mr Bradgate on his own behalf and on behalf of all persons who are "Group Members" as defined in the Further Amended Statement of Claim (refer to Section 5 below as to whether you are a Group Member).
Mr Bradgate alleges in the Further Amended Statement of Claim that Ashley's prospectuses contained misleading statements and omissions primarily concerning its forecast financial results for the 2015 financial year (FY15). Mr Bradgate's key allegations include that the prospectuses contained misleading statements, and omitted to disclose material information concerning risks to the future revenue to be derived by Ashley from a business known as ASG Integracom, both arising from a proposed government reform known as "Tools for Your Trade" program, and from the actual trading performance of the business.
It is further alleged that Ashley failed to disclose the above information or risks to the Australian Securities Exchange (ASX) until the end of the Relevant Period, giving rise to breaches of Ashley's continuous disclosure obligations under the ASX Listing Rules.
Ashley denies the allegations and has also filed cross-claims against Holmes Management Group Pty Limited and its directors at the relevant time, Deloitte Touch Tohmatsu, Deloitte Corporate Finance Pty Limited and Grant Thornton Corporate Finance Pty Limited (together the "Cross-Respondents"). Grant Thornton Corporate Finance Pty Limited has also filed a cross-claim against Ashley.
WHAT IS 'OPT OUT'?
The Applicant in a class action does not need to seek the consent of group members to commence a class action on their behalf or to identify a specific group member. However, group members can cease to be group members by opting out of the class action. An explanation of how group members are able to opt out is found below in the section 9(b) headed "How you can opt out of the class action?"
ARE YOU A GROUP MEMBER?
You are a Group Member if you:
(a) acquired fully paid ordinary shares in Ashley Services Group Limited ACN 094 747 510 (Ashley Shares), pursuant to the Offer (as defined in paragraph 27 of the Further Amended Statement of Claim) or otherwise acquired Ashley Shares in the Relevant Period; and
(b) with the exception of Andrew Douglas Shrimpton and Dean Shrimpton, were not during the Relevant Period, and are not, any of the following:
(i) a related party (as defined by s 228 of the Corporations Act 2001 (Cth)) of Ashley;
(ii) a related body corporate (as defined by s 50 of the Corporations Act 2001 (Cth)) of Ashley;
(iii) an associated entity (as defined by s 50AAA of the Corporations Act 2001 (Cth)) of Ashley;
(iv) a director, an officer, or a close associate (as defined by s 9 of the Corporations Act 2001 (Cth)) of Ashley; or
(v) a judge or the Chief Justice of the Federal Court of Australia or a Justice or the Chief Justice of the High Court of Australia; and
(c) have suffered loss or damage by reason of the conduct of Ashley pleaded in the Further Amended Statement of Claim.
You have been identified as a Group Member because as at the date of the filing of the Further Amended Statement of Claim on 15 December 2017, you have entered into a litigation funding and management agreement with IMF Bentham Limited and a retainer with William Roberts Lawyers in relation to this class action and have provided information to IMF Bentham Limited indicating that you meet the above criteria.
If you believe you are not a Group Member, you should contact William Roberts Lawyers on (02) 9552 2111 or email bill.petrovski@williamroberts.com.au or seek your own legal advice without delay.
WILL YOU BE LIABLE FOR LEGAL COSTS?
You will not become liable for any legal costs simply by remaining as a Group Member for the determination of the common questions.
Your rights and obligations under the litigation funding and management agreement with IMF Bentham Limited and the retainer with William Roberts Lawyers will not change if you simply do nothing.
You should be aware that the Court may, at any time, but usually in considering a settlement approval, vary your and IMF's entitlements under the litigation funding and management agreement should it consider that it is in the interest of you and other group members to do so.
WHAT WILL HAPPEN IF YOU CHOOSE TO REMAIN A GROUP MEMBER?
Unless you opt out in accordance with the procedure set out in section 9(b) below, you will be bound by:
(a) any settlement agreement reached (whether through the Mediation or otherwise); and
(b) the outcome of this class action as determined by the Court (if there is no settlement).
If a settlement agreement is reached at the Mediation (or within 2 months after the first day of the Mediation) and if the Court approves the settlement, the only Group Members who will be eligible for a share of any settlement monies will be:
(a) persons like you, being those who at the date of the filing of the Further Amended Statement of Claim, entered into a litigation funding and management agreement with IMF Bentham Limited in relation to this class action; and
(b) persons who have not entered into such an agreement with IMF Bentham Limited but have registered their interest to participate in the distribution of any amount agreed in settlement of this class action in accordance with the orders of the Court.
If a settlement agreement is not reached at the Mediation (or within 2 months after the first day of the Mediation), then this class action will continue and you will remain a Group Member in the class action (unless you opt out in accordance with the procedure in section 9(b)).
If you do not opt out and this class action is successful, you and other eligible Group Members will be entitled to share in the benefit of any order, judgment or settlement, although in some cases you may have to satisfy certain conditions before your entitlement arises. If this class action is unsuccessful or is not as successful as you might have wished, you will not be able to sue on the same claim in any other proceedings.
WHAT WILL HAPPEN IF YOU CHOOSE TO OPT-OUT?
If you opt out of this class action, you will no longer be:
(a) a Group Member in this class action; or
(b) bound by the outcome of this class action (whether achieved through settlement or judgment) or entitled to share in the benefit of any order, judgment or settlement in the class action. However, you will be at liberty to bring your own claim against the Respondent or any of the Cross-Respondents, provided that you issue Court proceedings within the time limit applicable to your claim.
If you wish to bring your own claim against Ashley or any of the Cross-Respondents, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.
NOTE: You should note that your litigation funding and management agreement with IMF Bentham Limited and your retainer with William Roberts Lawyers contain terms as to your rights and obligations in the event that you opt out of this class action.
WHAT GROUP MEMBERS NEED TO DO
(a) How you can remain a group member?
If you wish to remain a Group Member there is nothing you need to do at the present time. Unless a settlement occurs, Mr Bradgate will continue to bring the proceeding on your behalf up to the point where the Court determines the substantial common issues of law and fact arising out of the claims of the Group Members.
(b) How you can opt out of the class action?
If you do not wish to remain a Group Member you must opt out of this class action by completing the below enclosed "Opt out notice", then returning it to the Registrar of the Federal Court of Australia at the address on the form. The Notice must reach the Registrar by no later than 4.00pm on 30 March 2018, otherwise it will not be effective.
Again notably, your litigation funding and management agreement with IMF Bentham Limited and your retainer with William Roberts Lawyers contain terms as to your rights and obligations in the event that you choose to opt out of this class action.
You should complete and submit the below "Opt Out Notice" if:
(i) you qualify as a Group Member and you wish to opt out of the class action; or
(ii) you believe that you have been incorrectly identified as a Group Member, because you do not meet the criteria set out above in Section 5 headed "Are you a Group Member".
Each Group Member seeking to opt out should fill out a separate form. If you are opting out on behalf of a company or business please provide your name, the name of the company or business and your position within the company or business (e.g. director or partner).
WHERE CAN YOU OBTAIN COPIES OF RELEVANT DOCUMENTS?
Copies of relevant documents, including the Amended Originating Application, the Further Amended Statement of Claim, the Defence to the Amended Statement of Claim and the Statements of Cross-Claims against the Cross-Respondents and Defences thereto, may be obtained by:
(a) inspecting them between 9am and 5pm at the offices of William Roberts Lawyers in Sydney, Melbourne and Brisbane, contact details for which are available from www.williamroberts.com.au or by calling (02) 9552 2111; or
(b) inspecting them on the Federal Court website: www.fedcourt.gov.au.
FURTHER INFORMATION
Please consider the above matters carefully. If there is anything of which you are unsure, you should contact William Roberts Lawyers on (02) 9552 2111 or email Mr. Bill Petrovski at bill.petrovski@williamroberts.com.au or seek your own legal advice. You should not delay in making your decision.
Form 35
Rule 9.34
Opt out notice
No. NSD2074 of 2016
Federal Court of Australia
District Registry: New South Wales
Division: General
Richard John Findlay Bradgate as Trustee of the Bradgate Superannuation Fund
Applicant
Ashley Services Group Limited (ACN 094 747 510)
Respondent/Cross Claimant/Cross Respondent to the Fourth Cross Claim
Holmes Management Group Pty Ltd (ACN 164 551 526)
Carl Holmes
Marie Holmes
Cross Respondents to First Cross Claim
Deloitte Touche Tohmatsu
Deloitte Corporate Finance Pty Ltd (ACN 003 833 127)
Cross Respondents to Second Cross Claim
Grant Thornton Corporate Finance Pty Ltd (ACN 003 265 987)
Cross Respondent to Third Cross Claim/Cross Claimant to the Fourth Cross-Claim
To: The Registrar Federal Court of Australia, New South Wales District Registry Level 17, Law Courts Building Queens Square, Sydney NSW 2000
The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 that the group member is opting out of the representative proceeding.
Name of group member:
Postal address of group member:
Telephone contact:
Email address:
ACN/ABN:
(if a company or trustee)
HIN/SRN:
If the shares were acquired on behalf of another person/entity, name of that person/entity:
[2]
If you are signing as the solicitor or representative of the group member:
Person completing this form (print):
Authority of person completing this form (eg., company director, lawyer):
Postal address of person completing this form:
Telephone contact:
Email address:
[3]
Date:
Signed by (print name) Group Member/Lawyer for the Group Member
[4]
SCHEDULE B
FEDERAL COURT OF AUSTRALIA
ASHLEY SERVICES GROUP CLASS ACTION
NOTICE OF RIGHTS TO :
(1) PARTICIPATE IN SETTLEMENT RESULTING FROM MEDIATION:
OR
(2) OPT OUT OF THE CLASS ACTION
[5]
WHY IS THIS NOTICE IMPORTANT?
A class action has been commenced in the Federal Court of Australia by Richard John Findlay Bradgate as Trustee of the Bradgate Superannuation Fund (Mr Bradgate) against Ashley Services Group Limited (Ashley) (Federal Court Proceedings numbered NSD2074/2016).
The claim arises out of allegedly misleading statements and material omissions made in Ashley's prospectuses issued prior to its listing, and allegedly misleading conduct and failures to comply with continuous disclosure obligations by Ashley which occurred after its listing. Such conduct is alleged to have caused loss and damage to Ashley shareholders who acquired Ashley shares pursuant to Ashley's prospectus dated 7 August 2014 or in the period from 21 August 2014 to 26 April 2015 (Relevant Period).
You are a Group Member of this class action if you:
(a) acquired fully paid ordinary shares in Ashley Services Group Limited ACN 094 747 510 (Ashley Shares), pursuant to the Offer (as defined in paragraph 27 of the Further Amended Statement of Claim) or otherwise acquired Ashley Shares in the Relevant Period; and
(b) with the exception of Andrew Douglas Shrimpton and Dean Shrimpton, were not during the Relevant Period, and are not, any of the following:
(i) a related party (as defined by s 228 of the Corporations Act 2001 (Cth)) of Ashley;
(ii) a related body corporate (as defined by s 50 of the Corporations Act 2001 (Cth)) of Ashley;
(iii) an associated entity (as defined by s 50AAA of the Corporations Act 2001 (Cth)) of Ashley;
(iv) a director, an officer, or a close associate (as defined by s 9 of the Corporations Act 2001 (Cth)) of Ashley; or
(v) a judge or the Chief Justice of the Federal Court of Australia or a Justice or the Chief Justice of the High Court of Australia; and
(c) have suffered loss or damage by reason of the conduct of Ashley pleaded in the Further Amended Statement of Claim.
You should read this notice carefully as it concerns your rights if you are a Group Member of this class action. Any questions you have concerning the matters contained in this notice should not be directed to the court. If there is anything in it that you do not understand, you should seek legal advice.
(A) Participation in Settlement
The Federal Court has referred this class action to mediation which is to occur by no later than 13 July 2018 (Mediation).
Some Group Members (being those who have entered into a litigation funding agreement with IMF Bentham Limited) as at 15 December 2017 are automatically eligible to receive a share of settlement monies that may result from the Mediation (or a settlement within 2 months of the first day of the Mediation). Those Group Members are considered Registered Group Members.
If you are not a Registered Group Member at the time this notice was issued and you wish to have your claim considered at the Mediation and receive a share of settlement monies resulting from any settlement reached at the Mediation (or a settlement reached within 2 months of the first day of the Mediation), you must apply to register and become a New Registered Group Member by:
(a) completing and submitting the enclosed "Group Member Registration Form"; and
(b) providing all information and documents required as set out in this form.
Importantly:
(a) the Group Member Registration Form must reach IMF Bentham Limited by no later than 4pm on 30 March 2018; and
(b) if you do not register your interest in accordance with this notice, you will not, without the permission (leave) of the Court, be entitled to seek any benefit pursuant to any settlement of this proceeding at the Mediation (or within 2 months after the first day of the Mediation).
Your options are set out in detail in Section 6 below headed "What are your options?"
(B) Opt Out
If you do not wish to remain a Group Member you must opt out of this class action by completing an "Opt Out Notice" in the form shown at Annexure 1 to this notice, then you must return it to the Registrar of the Federal Court of Australia at the address on the form. IMPORTANT: the Notice must reach the Registrar by no later than 4.00pm on 30 March 2018, otherwise it will not be effective.
Your options are set out in detail in Section 6 below headed "What are your options?"
WHAT IS A CLASS ACTION?
A class action is an action that is brought by one person (referred to as the "Applicant") on his or her own behalf and on behalf of a class of people against another person (referred to as the "Respondent") where the Applicant and the group members have the same or similar claims against the Respondent.
Group members in a class action are not individually responsible for the legal costs associated with bringing the class action. In a class action, only the Applicant is responsible for the costs.
Group members are "bound" by the outcome in the class action, unless they have opted out of the proceeding. A binding result can happen in two ways: judgment following a trial, or a settlement at any time. If there is a judgment or a settlement of a class action, group members will not be able pursue the same claims and may not be able to pursue similar or related claims against the respondent in other legal proceedings. Group members should note that:
(a) in a judgment following trial, the Court will decide various common factual and legal issues in respect of the claims made by the Applicant and group members. Group members will be bound by those findings, whether or not they are favourable to them (unless they are appealed). Importantly, if there are other proceedings between a group member and the respondent, neither of them will be permitted to raise arguments in that proceeding which are inconsistent with a factual or legal issue decided in the trial of common issues in the class action. This means that if the issues are resolved against the Applicant, group members will be unable to pursue claims they have which are the same as the Applicant's claims, and will not be able to pursue other claims which are dependent upon common issues which have been resolved against the Applicant; and
(b) in a settlement of a class action, where the settlement provides for compensation to group members it is likely to extinguish all rights to compensation which a group member might have against the respondent which arise in any way out of the events or transactions which are the subject-matter of the class action.
If you consider that you have claims against a respondent which are based in your individual circumstances or otherwise additional to the claims described in the class action, then it is important that you seek independent legal advice about the potential binding effects of the class action before the deadline for opting out (see below).
WHAT IS THIS CLASS ACTION?
This class action is brought by Mr Bradgate on his own behalf and on behalf of all persons who are "Group Members" as defined in the Further Amended Statement of Claim (refer to Section 5 below as to whether you are a Group Member).
Mr Bradgate alleges in the Further Amended Statement of Claim that Ashley's prospectuses contained misleading statements and omissions primarily concerning its forecast financial results for the 2015 financial year (FY15). Mr Bradgate's key allegations include that the prospectuses contained misleading statements, and omitted to disclose material information concerning risks to the future revenue to be derived by Ashley from a business known as ASG Integracom, both arising from a proposed government reform known as "Tools for Your Trade" program, and from the actual trading performance of the business.
It is further alleged that Ashley failed to disclose the above information or risks to the Australian Securities Exchange (ASX) until the end of the Relevant Period, giving rise to breaches of Ashley's continuous disclosure obligations under the ASX Listing Rules.
Ashley denies the allegations and has also filed cross-claims against Holmes Management Group Pty Limited and its directors at the relevant time, Deloitte Touch Tohmatsu, Deloitte Corporate Finance Pty Limited and Grant Thornton Corporate Finance Pty Limited (together the "Cross-Respondents"). Grant Thornton Corporate Finance Pty Limited has also filed a cross-claim against Ashley.
WHAT IS 'OPT OUT'?
The Applicant in a class action does not need to seek the consent of group members to commence a class action on their behalf or to identify a specific group member. However, group members can cease to be group members by opting out of the class action. An explanation of how group members are able to opt out is found below in Section 6(b) headed "Opt out of this class action".
ARE YOU A GROUP MEMBER OF THIS CLASS ACTION?
You are a Group Member if you:
(a) acquired fully paid ordinary shares in Ashley Services Group Limited ACN 094 747 510 (Ashley Shares), pursuant to the Offer (as defined in paragraph 27 of the Further Amended Statement of Claim) or otherwise acquired Ashley Shares in the Relevant Period; and
(b) with the exception of Andrew Douglas Shrimpton and Dean Shrimpton, were not during the Relevant Period, and are not, any of the following:
(i) a related party (as defined by s 228 of the Corporations Act 2001 (Cth)) of Ashley;
(ii) a related body corporate (as defined by s 50 of the Corporations Act 2001 (Cth)) of Ashley;
(iii) an associated entity (as defined by s 50AAA of the Corporations Act 2001 (Cth)) of Ashley;
(iv) a director, an officer, or a close associate (as defined by s 9 of the Corporations Act 2001 (Cth)) of Ashley; or
(v) a judge or the Chief Justice of the Federal Court of Australia or a Justice or the Chief Justice of the High Court of Australia; and
(c) have suffered loss or damage by reason of the conduct of Ashley pleaded in the Further Amended Statement of Claim.
If you are unsure whether or not you are a Group Member, you should contact William Roberts Lawyers on (02) 9552 2111 or email bill.petrovski@williamroberts.com.au or seek your own legal advice without delay.
WHAT ARE YOUR OPTIONS?
If you consider that you are a Group Member in this class action, you must choose from one of the following three options.
OPTION DEADLINE MORE INFORMATION
Register your interest to become a New Registered Group Member (Section 6(a) below) 4:00pm on 30 March 2018 Section 6(a) below
Opt out of the class action 4:00pm on 30 March 2018 Section 6(b) below
(Section 6(b) below)
Do nothing (Section 6(c) below) N/A Section 6(c) below
[6]
6(a) Option 1 - Register your interest to participate in any settlement reached at the Mediation (or 2 months after the first day of the Mediation)
If you wish to receive a share of any settlement monies resulting from a settlement at the Mediation (or a settlement within 2 months after the first day of the Mediation), you must:
(i) complete and send the enclosed "Group Member Registration Form" at Annexure 2 to this notice either via email to IMF Bentham Limited at 402770@imf.com.au or by post to IMF Bentham Limited PO Box Z5106, St Georges Terrace, Perth WA 6831; and
(ii) provide all information and documents required as set out in the form;
so that the Group Member Registration Form reaches IMF Bentham Limited by 4.00pm on 30 March 2018 (Deadline).
IMPORTANT: If your completed Group Member Registration Form fails to reach IMF Bentham Limited by the Deadline, you will not be entitled to receive a share of any settlement monies resulting from a settlement at the Mediation (or a settlement within 2 months after the first day of the Mediation).
The information and documents you provide must be complete, accurate and legible. If you are unable to provide the documents requested, you may provide a statutory declaration declaring as to the truth and accuracy of all information you provide on the Group Member Registration Form.
Once you submit the Group Member Registration Form and the required documentation in accordance with the above, you will become a New Registered Group Member.
The information and documents you provide will be used by William Roberts Lawyers and all or some of it may be provided to Ashley or the Cross-Respondents prior to the Mediation to enable the parties to have sufficient information about all the claims to settle this class action.
If a settlement agreement is reached at the Mediation (or within 2 months after the first day of the Mediation), New Registered Group Members will be contacted at the address provided on the Group Member Registration Form and informed of the terms of the settlement (which will be subject to Court approval). Only Registered Group Members and New Registered Group Members will be eligible for a share of any settlement monies.
If a settlement agreement is not reached at the Mediation (or within 2 months after the first day of the Mediation), then this class action will continue and you will remain a group member (unless you opt out in accordance with procedure set out in Section 6(b) below).
6(b) Option 2 - Opt out of this class action
If you opt out of this class action, you will no longer be:
(i) a Group Member in this class action; or
(ii) bound by the outcome of this class action (whether achieved through settlement or judgment) or entitled to share in the benefit of any order, judgment or settlement in the class action. However, you will be at liberty to bring your own claim against the Respondent or any of the Cross-Respondents, provided that you issue Court proceedings within the time limit applicable to your claim.
If you wish to bring your own claim against Ashley or any of the Cross-Respondents, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.
If you do not wish to remain a Group Member you must opt out of this class action by completing a " Opt Out Notice" in the form shown at Annexure 1 to this notice, and returning it to the Registrar of the Federal Court of Australia at the address on the form. IMPORTANT: the Notice must reach the Registrar by no later than 4.00pm on 30 March 2018, otherwise it will not be effective.
You should submit the Notice of opting out if:
(i) you qualify as a Group Member and you wish to opt out of the class action; or
(ii) you believe that you have been incorrectly identified as a Group Member, because you do not meet the criteria set out in Section 5 headed "Are you a Group Member" above.
Each Group Member seeking to opt out should fill out a separate form. If you are opting out on behalf of a company or business please provide your name, the name of the company or business and your position within the company or business (e.g. director or partner).
If you decide to opt out, you should not complete or return a Group Member Registration Form.
6(c) Option 3 - Do nothing
If you do nothing by the Deadline, that is you do not:
(i) register by submitting the "Group Member Registration Form" as per option 1 above; or
(ii) return an opt out notice as per option 2 above;
you will remain a group member but will not, without the leave of the Court, be permitted to seek any benefit pursuant to any in-principle settlement (subject to the approval of the Court) of this class action reached at the Mediation (or within 2 months after the first day of the Mediation).
If you do nothing and a settlement agreement is not reached at the Mediation (or within 2 months of the first day of the Mediation) and approved by the Court, you will remain a Group Member and Mr Bradgate will continue to bring the class action on your behalf up to the point where the Court determines the substantial common issues of law and fact arising out of the claims of the Group Members. In that case, you will be bound by the outcome of the class action. If this class action is successful, you will be entitled to share in the benefit of any order, judgment or settlement in favour of Mr Bradgate, although you may have to satisfy certain conditions before your entitlement arises. If this class action is unsuccessful or is not as successful as you might have wished, you will not be able to sue on the same claim in any other proceedings.
Importantly, in considering your options you should read the note as to common fund orders or funding equalisation orders in section 7 below as these matters may affect your rights and entitlements to proceeds of any settlement.
7. WILL YOU BE LIABLE FOR LEGAL OR OTHER COSTS?
You will not become liable for any legal costs simply by remaining a Group Member for the determination of the common questions or registering to become a New Registered Group Member. However, you should carefully read the important note below concerning your potential obligations to make contributions from any recovery arising from judgement or settlement if any common fund orders or funding equalisation orders are sought and made.
IMPORTANT NOTE AS TO FUNDING EQUALISATION ORDERS OR COMMON FUND ORDERS:
You should be aware that Mr Bradgate or IMF Bentham Limited will likely in the future make an application to the Court that seeks either:
(a) funding equalisation orders (explained in detail below); or
(b) common fund orders (explained in detail below).
Funding Equalisation Orders
In this class action, the Group Members fall within two categories:
(a) Group Members who have already entered into a litigation funding agreement with IMF Bentham Limited (Funded Group Members); and
(b) Group Members who have not entered into a litigation funding agreement with IMF Bentham Limited (Non-Funded Group Members).
In the event of a successful resolution of their claims, the Funded Group Members are liable to pay to IMF Bentham Limited, from any monies recovered, a share of the legal costs, commission and any other amounts payable under the funding agreements. On the other hand, absent a Court order, the Non-Funded Group Members are not liable to do so.
The Court has in the past recognised in the context of making orders facilitating or approving settlements, that fairness would require that group members who have entered into funding agreements should not end up in a worse position than group members who have not entered into funding agreements. Accordingly, the Court has in the past made what are commonly referred to as "funding equalisation orders".
Funding equalisation orders have the effect of taking the amount that would have been paid to the litigation funder by Non-Funded Group Members if they had signed funding agreements, and then redistributing that amount amongst all Group Members so as to achieve equality of outcome. In this way equality of outcome is achieved as between the Funded Group Members and Non-Funded Group Members. Such orders effectively require Non-Funded Group Members to bear part of the cost of funding the proceedings.
A copy of the standard form IMF Bentham Limited funding agreement for this class action may be inspected between 9am and 5pm at the offices of William Roberts Lawyers in Sydney, Melbourne and Brisbane, contact details for which are available from www.williamroberts.com.au or by calling (02) 9552 2111.
Common Fund Orders
A Common Fund Order is a Court order requiring Mr Bradgate and all Group Members to pay a pro rata share of the legal costs, commission and any other amounts payable to IMF Bentham Limited from a common fund made up from any amounts the Group Members and Mr Bradgate receive from any settlement or judgment in the class action.
If Mr Bradgate or IMF Bentham Limited make an application for common fund orders (with other ancillary orders), such application will seek that Mr Bradgate and each Group Member pay to IMF Bentham Limited, on a pro-rata basis, the following amounts from any amounts they receive from any settlement or judgment in the class action:
(a) an amount equal to their share of the costs and expenses paid or payable (including any conditional cost components of solicitor's fees) by IMF Bentham Limited in connection with this proceeding (together with any GST for any taxable supply made by IMF Bentham Limited); and
(b) a funding fee or commission to IMF Bentham Limited in an amount not exceeding 40% of the amount they receive from any settlement or judgment in the class action.
The Court may or may not accept the rate proposed by Mr Bradgate or IMF Bentham Limited and may set a rate that it considers appropriate to apply consistently to Mr Bradgate and all Group Members.
Legal work specific to your claim
Further, if the preparation or finalisation of your personal claim requires work to be done in relation to issues that are specific to your claim, you can engage William Roberts Lawyers or other solicitors to do that work for you. A copy of the terms on which William Roberts Lawyers are acting in the class action may be obtained from them on contact details shown below.
8. WHERE CAN YOU OBTAIN COPIES OF RELEVANT DOCUMENTS?
Copies of relevant documents, including the Amended Originating Application, the Further Amended Statement of Claim, the Defence to the Amended Statement of Claim and the most current iterations of the Statements of Cross-Claim and Defences to such Cross-Claims may be obtained by:
(a) inspecting them between 9am and 5pm at the offices of William Roberts Lawyers in Sydney, Melbourne and Brisbane, contact details for which are available from www.williamroberts.com.au or by calling (02) 9552 2111; or
(b) inspecting them on the Federal Court website: www.fedcourt.gov.au.
In addition, a copy of the standard form IMF Bentham Limited funding agreement for this class action may be inspected between 9am and 5pm at the offices of William Roberts Lawyers in Sydney, Melbourne and Brisbane, contact details for which are available from www.williamroberts.com.au or by calling (02) 9552 2111.
9. FURTHER INFORMATION
Please consider the above matters carefully. If there is anything of which you are unsure, you should contact William Roberts Lawyers on (02) 9552 2111 or email Mr. Bill Petrovski at bill.petrovski@williamroberts.com.au or seek your own legal advice. You should not delay in making your decision.
Annexure 1
Form 21
Rule 9.34
Opt out notice
No. NSD2074 of 2016
Federal Court of Australia
District Registry: New South Wales
Division: General
Richard John Findlay Bradgate as Trustee of the Bradgate Superannuation Fund
Applicant
Ashley Services Group Limited (ACN 094 747 510)
Respondent/Cross Claimant/Cross Respondent to the Fourth Cross Claim
Holmes Management Group Pty Ltd (ACN 164 551 526)
Carl Holmes
Marie Holmes
Cross Respondents to First Cross Claim
Deloitte Touche Tohmatsu
Deloitte Corporate Finance Pty Ltd (ACN 003 833 127)
Cross Respondents to Second Cross Claim
Grant Thornton Corporate Finance Pty Ltd (ACN 003 265 987)
Cross Respondent to Third Cross Claim/Cross Claimant to the Fourth Cross-Claim
To: The Registrar Federal Court of Australia, New South Wales District Registry Level 17, Law Courts Building Queens Square, Sydney NSW 2000
The person named below as a group member in this representative proceeding gives notice under section 33J of the Federal Court of Australia Act 1976 that the group member is opting out of the representative proceeding.
Name of group member:
Postal address of group member:
Telephone contact:
Email address:
ACN/ABN:
(if a company or trustee)
HIN/SRN:
If the shares were acquired on behalf of another person/entity, name of that person/entity:
[7]
If you are signing as the solicitor or representative of the group member:
Person completing this form (print):
Authority of person completing this form (eg., company director, lawyer):
Postal address of person completing this form:
Telephone contact:
Email address:
Postal address:
[8]
Date:
Signed by (print name) Group Member/Lawyer for the Group Member
[9]
Annexure 2
GROUP MEMBER REGISTRATION FORM
"Ashley Services Group Class Action"
Federal Court of Australia proceeding NSD2074 of 2016
To: IMF Bentham Limited
PO Box Z5106, St Georges Terrace, Perth, WA 6831
Attention: Ewen McNee
The group member named below registers to receive a share of any settlement monies resulting from the Mediation of this representative proceeding or a settlement within 2 months after the first day of the Mediation of this representative proceeding.
[10]
GROUP MEMBER DETAILS PLEASE PRINT IN CAPITAL LETTERS
[11]
If the Group Member is a company insert ABN/ACN or Registration No. (if overseas company)
[12]
State: Postcode: Country:
[13]
CONTACT DETAILS PLEASE PRINT IN CAPITAL LETTERS
[14]
First Name: Surname:
[15]
State: Postcode: Country:
[16]
Telephone number: Mobile:
[17]
Full Name of Registered Owner: (This is the name of the entity on the share register)
[18]
SRN/HIN:
Note: If your Ashley Securities were or are held under different registered names, or the holdings have different SRN/HIN numbers, please copy and complete this page for each holding.
[19]
IPO PURCHASES LIST IPO PURCHASES MADE PURSUANT TO ASHLEY'S PROSPECTUS DATED 7 AUGUST 2014
[20]
DATE OF SHARE ACQUISITION QUANTITY OF SHARES GROSS PRICE PAID (incl. Brokerage)
[21]
ON-MARKET PURCHASES LIST ON-MARKET PURCHASES FROM 21 AUGUST 2014 TO 26 APRIL 2015 INCLUSIVE
[22]
DATE OF SHARE ACQUISITION QUANTITY OF SHARES GROSS PRICE PAID (incl. Brokerage)
[23]
DISPOSALS/SALES LIST DISPOSALS/SALES FROM 21 AUGUST 2014 TO 26 APRIL 2015 INCLUSIVE
[24]
DATE OF SHARE SALE QUANTITY OF SHARES NET PRICE RECEIVED (net of Brokerage)
[25]
If the above space is insufficient, please provide the required information on separate pages.
IMPORTANT: SUPPORTING DOCUMENTS OR STATUTORY DECLARATION REQUIRED
Please provide documentary evidence in support of the information you are providing with this form, including:
(a) holding statements and/or contract notes if available; and (b) trade information in excel format, if the applicant is claiming on behalf of multiple funds.
If you are unable to provide documentary evidence, please provide a Commonwealth statutory declaration declaring as to the truth and accuracy of the information you are providing with this form. The Commonwealth statutory declaration form is set out at the end of this notice. Alternatively, the form may be downloaded from https://www.ag.gov.au/Publications/Statutory-declarations/Pages/default.aspx
Date:
Signed by, or on behalf (print name)
of and with authority of,
the Group Member
(as specified above)
Commonwealth of Australia
STATUTORY DECLARATION
Statutory Declarations Act 1959
1 Insert the name, address and occupation of person making the declaration I,1
make the following declaration under the Statutory Declarations Act 1959:
2 Set out matter declared to in numbered paragraphs 2
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
3 Signature of person making the declaration 3
4 Place Declared at 4 on 5 of 6
5 Day Before me,
6 Month and year
7 Signature of person before whom the declaration is made (see over) 7
8 Full name, qualification and address of person before whom the declaration is made (in printed letters) 8
[26]
Note 1 A person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years - see section 11 of the Statutory Declarations Act 1959.
Note 2 Chapter 2 of the Criminal Code applies to all offences against the Statutory Declarations Act 1959 - see section 5A of the Statutory Declarations Act 1959.
A statutory declaration under the Statutory Declarations Act 1959 may be made before-
(1) a person who is currently licensed or registered under a law to practise in one of the following occupations:
Chiropractor Dentist Legal practitioner
Medical practitioner Nurse Optometrist
Patent attorney Pharmacist Physiotherapist
Psychologist Trade marks attorney Veterinary surgeon
(2) a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described); or
(3) a person who is in the following list:
Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public
Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1955)
Bailiff
Bank officer with 5 or more continuous years of service
Building society officer with 5 or more years of continuous service
Chief executive officer of a Commonwealth court
Clerk of a court
Commissioner for Affidavits
Commissioner for Declarations
Credit union officer with 5 or more years of continuous service
Employee of the Australian Trade Commission who is:
(a) in a country or place outside Australia; and
(b) authorised under paragraph 3 (d) of the Consular Fees Act 1955; and
(c) exercising his or her function in that place
Employee of the Commonwealth who is:
(a) in a country or place outside Australia; and
(b) authorised under paragraph 3 (c) of the Consular Fees Act 1955; and
(c) exercising his or her function in that place
Fellow of the National Tax Accountants' Association
Finance company officer with 5 or more years of continuous service
Holder of a statutory office not specified in another item in this list
Judge of a court
Justice of the Peace
Magistrate
Marriage celebrant registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961
Master of a court
Member of Chartered Secretaries Australia
Member of Engineers Australia, other than at the grade of student
Member of the Association of Taxation and Management Accountants
Member of the Australasian Institute of Mining and Metallurgy
Member of the Australian Defence Force who is:
(a) an officer; or
(b) a non-commissioned officer within the meaning of the Defence Force Discipline Act 1982 with 5 or more years of continuous service; or
(c) a warrant officer within the meaning of that Act
Member of the Institute of Chartered Accountants in Australia, the Australian Society of Certified Practising Accountants or the National Institute of Accountants
Member of:
(a) the Parliament of the Commonwealth; or
(b) the Parliament of a State; or
(c) a Territory legislature; or
(d) a local government authority of a State or Territory
Minister of religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961
Notary public
Permanent employee of the Australian Postal Corporation with 5 or more years of continuous service who is employed in an office supplying postal services to the public
Permanent employee of:
(a) the Commonwealth or a Commonwealth authority; or
(b) a State or Territory or a State or Territory authority; or
(c) a local government authority;
with 5 or more years of continuous service who is not specified in another item in this list
Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made
Police officer
Registrar, or Deputy Registrar, of a court
Senior Executive Service employee of:
(a) the Commonwealth or a Commonwealth authority; or
(b) a State or Territory or a State or Territory authority
Sheriff
Sheriff's officer
Teacher employed on a full-time basis at a school or tertiary education institution
SCHEDULE C
COVER LETTER
[INSERT DATE]
Dear Claimant,
RE: Class Action against Ashely Services Group Limited (Ashley)
You are receiving this correspondence because, based on the information available, you may have acquired an interest in ordinary shares in Ashley, pursuant to an offer of Ashley shares on the terms set out in its prospectus or otherwise purchased Ashley shares during the period of 21 August 2014 to 26 April 2015 (inclusive). If you did, you may be a group member in the Ashley class action.
The Federal Court has referred this class action to mediation which is to occur by no later than 13 July 2018.
THE DOCUMENT ENCLOSED WITH THIS CORRESPONDENCE PROVIDES YOU WITH INFORMATION CONCERNING YOUR RIGHTS TO:
(1) PARTICIPATE IN SETTLEMENT RESULTING FROM MEDIATION
OR
(2) OPT OUT OF THE CLASS ACTION
[27]
It is therefore very important that you read the enclosed notice carefully and if you have any questions, please contact Bill Petrovski or Ding Pan, solicitors for the Applicant (Mr Bradgate) on:
Telephone: +61 2 9552 2111;
Email: Bill.Petrovski@williamroberts.com.au; Ding.Pan@williamroberts.com.au
SCHEDULE D
(Categories sought by the applicant from the other parties only)
For the following requested categories of documents for discovery:
Unless otherwise stated, the definitions in the Amended Statement of Claim and Defence to the Amended Statement of Claim apply.
DDC means Due Diligence Committee
Deloitte means the Cross Respondents to the Second Cross Claim
Deloitte Retainers means the DCF Retainer and the DTT Retainer as these terms are defined in the Amended Defence to the Second Cross Claim.
Document/s means any record of information, and includes:
(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
Grant Thornton means the Cross Respondent to the Third Cross Claim
Holmes Parties means the Cross Respondents to the First Cross Claim
Integracom Business means the business conducted by Integracom or ASG Integracom.
PKF means PKF Lawler Corporate Finance Pty Ltd (and its related entities)
Prospectus Forecasts has the meaning ascribed in that expression in paragraph 38 of the Amended Statement of Claim.
Where documents are requested, production of a copy instead of the original is sufficient.
Category Description
Initial Categories of Discovery sought by the Applicant from the Respondent
1 Documents comprising board packs created by the Respondent between 1 January 2014 and 27 April 2015.
2 Documents comprising reports prepared between 1 January 2014 and 27 April 2015, by or on behalf of the Respondent, which include revenue numbers and/or enrolment numbers of the Integracom Business, including dashboards, financial reports and other KPI reports.
3 A copy of the Xero file incorporating all transaction data as at 21 August 2014 for the Integracom Business. Note: It is agreed that if the Xero file produced pursuant to this category does not include all transaction data up to and including 21 August 2014, then the Applicant is to seek the missing data from the Respondent and the Respondent will produce the missing data so long as such data is in the Respondent's possession, control or custody.
4 Documents comprising work papers (including memoranda, calculations and spreadsheets), correspondence and emails created between 1 January 2014 and 31 August 2014 that refer to "revenue recognition" as at 30 June 2014, 31 July 2014, 20 August 2014 and 31 August 2014 for the Integracom Business.
5 Documents comprising the general ledger transactions data for the month ended 31 July 2014 for the Integracom Business.
6 Documents setting out the number of enrolments of students in the courses/units conducted by the Integracom Business by course and/or units, amounts paid by each student, dates of payments and fees outstanding during the months of June 2014, July 2014 and August 2014.
8 All versions of the Completion Accounts (as this term is adopted in the Respondent's Defence) including the draft Completion Accounts produced in November 2014 and the final Completion Accounts produced in February 2015.
9 Documents comprising the general ledger transactions data used as the basis for each version of the Completion Accounts referred to in 8 above.
10 Documents comprising correspondence concerning all versions of the Completion Accounts up to 27 April 2015 referred to in 8 above, including any changes between versions of the Completion Accounts.
11 Documents recording or identifying the reasons for any changes between versions of the Completion Accounts.
12 Documents comprising correspondence between 1 October 2014 and April 2015 that concern:
a. any errors in the accounting systems and/or accounting policies maintained by Integracom, ASG Integracom or the Respondent in respect of the revenue and profits of the Integracom Business; or
b. differences between the Integracom or ASG Integracom's accounting systems/ accounting policies on the one hand and the Respondent's accounting systems/accounting policies on the other in respect of the revenue and profits of the Integracom Business.
14 Documents comprising all versions of the forecast models used by the Respondent in respect of the Prospectus Forecasts insofar as they concern the "Training business" of the Respondent (as defined in paragraph 13 of the Further Amended Statement of Claim), including the Integracom Business.
15 Documents comprising all versions of the forecast models created or used by the Respondent in the period of 1 January 2014 to 27 April 2015 in respect of the financial performance of the Integracom Business in FY2015.
16 Documents comprising the supporting information used as the basis for the inputs and assumptions used for the forecast models referred to in 14 and 15 above.
17 Documents comprising consideration, analysis or conclusions undertaken or reached by the Respondent (or any of its subsidiaries) in the period of 1 April 2014 to 27 April 2015 in respect of the accuracy of the information or documents provided to the Respondent (or any of its subsidiaries) by any of the Cross-Respondents to the First Cross Claim, concerning:
(a) the existing number of students enrolments of the Integracom Business;
(b) the forecast number of new student enrolments of the Integracom Business;
(c) historical and forecast revenue of the Integracom Business;
(d) historical and forecast EBITDA of the Integracom Business;
(e) historical and forecast NPAT of the Integracom Business;
(f) whether the business records maintained or to be maintained for the Integracom Business were:
(i) true, accurate, complete;
(ii) fully, properly and accurately kept in accordance with proper accounting and business practices and all legal requirements; and
(iii) gave a true and fair view of the trading transactions and the contractual position of the Integracom Business;
(g) whether the staff employed or to be employed for the Integracom Business had the requisite skills and capabilities for the purposes of carrying out the Integracom Business, including skills and capabilities in respect of:
(i) making sales;
(ii) maintaining the number of students enrolled; and
(iii) increasing the number of students enrolled.
18 Documents comprising consideration, or analysis undertaken in the period 13 January 2014 to 27 April 2015, concerning the TFYT Payment Reform, the TFYT Payment Reform Bill, the 2014 Funding Act and the 2014 Funding Initiative (as each of them is defined in the Further Amended Statement of Claim), including information relied upon for Mr Brett O'Connor's summary of the key changes to the training sector outlined in an email from Mr O'Connor to others dated 21 May 2014 (ASH.200.019.1735).
19 Document(s) setting out the total funding received, for the Integracom business, from each State and Federal funding source listed on page 71 of Grant Thornton's Investigating Accountant's Report (ASH.100.001.1730) during the financial years ended 30 June 2014 and 2015. Any one report containing this information is sufficient.
20 Documents recording or identifying the basis for the statement that "Proforma EBITDA of $11.6 million was $1.3 million below prospectus, driven by reduced profits from the Integracom acquisition in the period prior to ownership. The difference was driven by revenue recognition adjustments and increased bad debt provisioning." in the Respondent's announcement to the market dated 18 February 2015.
21 Documents recording or identifying the reasons for the variances between the forecasts set out in Table 1 of the Respondent's announcement to the market dated 27 April 2015.
Initial Categories of Discovery sought by the Applicant from the Cross-Respondents to the First Cross-Claim (Holmes Parties)
22 Documents comprising reports prepared or received between 1 January 2014 and 27 April 2015 by the managing director or any managers employed for the Integracom Business which include revenue numbers and/or enrolment numbers of the Integracom Business, including dashboards, financial reports and other KPI reports.
23 A copy of the Xero file incorporating all transaction data as at 21 August 2014 for the Integracom Business. Note: The applicant will only require production under this category if the Xero file produced by the respondent to the applicant does not contain all transaction data up to and including 21 August 2014.
24 Documents comprising work papers (including memoranda, calculations and spreadsheets), correspondence and emails concerning revenue recognition (including for unearned revenue and work in progress), as at 30 June 2014, 31 July 2014, 20 August 2014 and 31 August 2014 respectively for the Integracom Business.
25 Documents comprising the general ledgers used as the basis for the Profit and Loss Statements for the month ended 31 July 2014 (an attachment to the email from Carl Holmes to Vince Fayad and others sent at 1:43pm on 18 August 2014 referred to in paragraphs 37 and 172 of the Respondent's Defence).
26 Documents setting out the number of enrolments of students in the courses/units conducted by the Integracom Business by course and/or units, amounts paid by each student, dates of payments and fees outstanding during the months of June 2014, July 2014 and August 2014.
28 Documents comprising consideration, or analysis undertaken in the period commencing 13 January 2014 and ending 27 April 2015, concerning the TFYT Payment Reform, the TFYT Payment Reform Bill, the 2014 Funding Act and the 2014 Funding Initiative (as each of them is defined in the Further Amended Statement of Claim), including information relied upon for Mr Carl Holmes' summary of the key changes to the training sector outlined in an Email from Mr Carl Holmes to others dated 4 April 2014 (ASH.200.019.2995).
29 Documents listed in sections 1, 2, 7.01.01, 7.02.03, 7.04, 7.11.01, 7.11.07, 7.11.1(4), 7.11.14, 7.14 of the Data Room Index at Annexure B to the USPA (as this term is defined in the Notice of first cross-claim).
30 The Draft Prospectus (as this term is defined in the Defence to the Amended Statement of Claim) and the draft prospectus(es) attached to and/or referred to in the Holmes Verification Certificate (as this term is defined in the Defence to the Amended Statement of Claim).
31 Documents comprising instructions provided by the Respondent to staff for the Integracom Business to process student enrolments through the Respondent as alleged in paragraph 30 of the Amended Defence Filed by the Cross Respondents to the First Cross Claim.
Initial Categories of Discovery sought by the Applicant from the Cross-Respondents to the Second Cross-Claim (Deloitte Parties)
32 A. Any final report or memorandum prepared by Deloitte, created in the period between 1 March 2014 and 21 August 2014:
(a) describing the revenue recognition principles or policies adopted by the Integracom Business; or
(b) containing recommendations or advice as to the revenue recognition principles or policies to be adopted by the Integracom Business; or
(c) summarising the results of revenue recognition testing taken in respect of the Integracom Business;
B. The memorandum, prepared by Deloitte, relating to the accounting treatment of the Cert III course referred to at page 140 of the Investigating Accountant's Report to the Due Diligence Committee dated 1 August 2014.
Initial Categories of Discovery sought by the Applicant from the Cross-Respondents to the Third Cross-Claim (Grant Thornton)
34 Documents that comprise verification tables, or record Grant Thornton's verification (following the completion of any applicable verification process), of the matters set out in sections 3 and 4 of the Pathfinder Prospectus, Initial Prospectus and/or Replacement Prospectus (as defined in the Further Amended Statement of Claim).
35 Documents comprising "forecast models provided on 4 June 2014" and subsequently the forecasts as "updated for events and current trading performance since 4 June 2014 and an updated forecast model provided on 1 July 2014 and 31 July 2014" referred to on page 21 of Grant Thornton's Investigating Accountant's Reports to the Due Diligence Committee dated 1 August 2014 (ASH.100.001.1660).
37 Any documents in Grant Thornton's files created in the period commencing 13 January 2014 and ending 21 August 2014 concerning the TFYT Payment Reform, the TFYT Payment Reform Bill, the 2014 Funding Act and the 2014 Funding Initiative.
38 The Draft Prospectus (as this term is defined in the Defence to the Amended Statement of Claim) and the draft prospectus(es) attached to and/or referred to in the GT Verification Certificate (as this term is defined in the Defence to the Amended Statement of Claim).
Initial Categories of Discovery sought by the Respondent from the Cross-Respondents to the First Cross-Claim (the Holmes Parties)
39 All versions of the forecast models prepared by Deloitte in respect of the Integracom Business and provided to the Respondent and/or the Holmes Parties and/or PKF in the period from 1 March 2014 to 21 August 2014.
40 Any documents(s) created in the period, or which were provided to Deloitte in the period, from 1 March 2014 to 21 August 2014 that evidence the input assumptions and/or basis for the assumptions adopted by Deloitte in:
(a) the forecast model attached to the email referred to in the particulars to paragraph [206(a)] of the Defence to the Amended Statement of Claim; and
(b) the forecast model attached to the email referred to in the particulars to paragraph [214(a)] of the Defence to the Amended Statement of Claim.
41 All documents created in the period 1 July 2014 to 21 August that evidence any consideration, or analysis undertaken, by or on behalf of the Holmes parties concerning:
(a) the revenue for the Integracom Business for the period from 1 July 2014 to 31 July 2014;
(b) the profit for the Integracom Business for the period from 1 July 2014 to 31 July 2014.
Initial Categories of Discovery sought by the Respondent from the Cross-Respondents to the Second Cross-Claim (the Deloitte Parties)
42 Any document(s) (including working papers) that evidence the basis for the assumptions or pro-forma adjustments:
(a) adopted by Deloitte in the 1 May Forecast Representation and 29 May Forecast Representation;
(b) relied upon by Deloitte concerning the subject matter of the penultimate paragraph of the email dated 23 June 2014 (which begins "In relation to the FY15 forecast..") referred to in paragraph 41(a) of the Second Cross Claim.
Initial Categories of Discovery sought by the Respondent from the Cross-Respondent to the Third Cross-Claim (Grant Thornton)
43 All correspondence despatched or received in the period from 1 July 2014 to 21 August 2014 between Grant Thornton, the Holmes Parties, Deloitte and/or PKF in respect of the forecasts for the Integracom Business for FY2015 in Grant Thornton's files.
44 All documents in Grant Thornton's files created in the period from 1 July 2014 to 21 August 2014 concerning the revenue and EBITDA forecasts for the Integracom Business for FY2015.
45 All documents in Grant Thornton's files created in the period from 1 July 2014 to 21 August 2014 concerning the Integracom Business' revenue, expenses, profit and loss for the period between 1 July 2014 to 21 August 2014.
46 Any documents in Grant Thornton's files created in the period from 1 May 2014 to 31 July 2014 concerning the Tools For Your Trade Payment Reform, the Tools For Your Trade Payment Report Bill, the 2014 Funding Act and the 2014 Funding Initiative (as those terms are defined in the Third Cross Claim).
Initial Categories of Discovery sought by the Cross-Respondents to the First Cross-Claim (the Holmes Parties) from the Respondent
47 All documents listed as attachments to or which are specifically referred to in, the Report of the DDC and which meet the requirements of standard discovery (FCR 20.14).
48 All minutes, papers, reports, planning memorandums or notes of the DDC, including any papers or reports provided to the DDC, which meet the requirements of standard discovery (FCR 20.14).
49 A copy of any minutes, papers, reports or memorandums created in the period 1 January 2014 to 27 April 2015 (inclusive) recording or evidencing:
(a) the matters considered by Ashley in preparing, or otherwise including, the projections contained within the Replacement Prospectus;
(b) any consideration of sections 3.2 and 5.2.1 and 5.2.3 of the Replacement Prospectus; and
(c) the reasons why Ashley issued, or the matters considered by Ashley in preparing, the revised forecasts and market announcements in February 2015 and on 27 April 2015.
Initial Categories of Discovery sought by the Cross-Respondents to the Second Cross-Claim (the Deloitte Parties) from the Respondent
50 Any document that evidences the relationship between the 1 May Forecast Representation or 29 May Forecast Representation and the Prospectus Forecasts, in particular any document(s) that concern the incorporation of the 1 May Forecast Representation or 29 May Forecast Representation into the Prospectus Forecasts.
51 Documents created in the period from 1 May 2014 to 20 August 2014 that evidence any consideration, or analysis undertaken, by or on behalf of Ashley (including by PKF or Grant Thornton Corporate Finance Pty Ltd) concerning the matters the subject of:
(a) the email dated 1 May 2014 referred to in paragraph 25(a) of the Amended Defence to the Second Cross Claim;
(b) the email dated 29 May 2014 referred to in paragraph 33(a) of the Amended Defence to the Second Cross Claim; and/or
(c) the email dated 23 June 2014 referred to in 41(a) of the Amended Defence to the Second Cross Claim.
[28]
Schedule E - Link Protocol
1 Scope and definitions
(a) Link Market Services Limited and its subsidiary Link Digicom (Link) will send the Registration and Opt Out Notice (Notice) contained in Schedule B to the Orders of 8 December 2017 to Notice Recipients (as defined in paragraph 2(a) below).
2 Data requirements
(a) Notice Recipients is defined as all persons who acquired a legal interest in ordinary shares in Ashley Services Group Limited:
(i) pursuant to the offer of 59,500,000 Ashley shares at a price of $1.66 per share on the terms set out in Ashley's prospectus lodged with ASIC on 7 August 2014; and/or
(ii) at any time during the period 21 August 2014 to 26 April 2015 (inclusive).
(b) Notice Recipients includes all persons who acquired shares, whether or not they also sold any or all of their shares.
(c) The term:
(i) "acquired" means acquisitions via Issuer or CHESS, allotments, escrow conversions, escrow releases, off market transfers or via survivorship; and
(ii) "person" includes natural persons and entities.
(d) For the purposes of paragraph 2(a) and (b) above, the register will be "cut" in accordance with the ASX T+3 settlement cycle relevant at that time. Accordingly, the register will be cut to include all trades registered on and from 21 August 2014 to 29 April 2015.
3 Communication
3.1 Multiple interest holders
(a) Where the register appears to disclose that a custodian or adviser represents more than one Group Member, Link will send a single Notice to that custodian or adviser.
3.2 Email
(a) The Notice will be sent by email to all Notice Recipients who have provided an email address to Link. The content of:
(i) the subject line of the e-mail shall read "IMPORTANT: Class Action Against Ashley Services Group Limited";
(ii) the body of the e-mail shall read as set out in Schedule C to the Orders of 8 December 2017.
(b) The Notice will be sent as a PDF attachment to the email.
(c) The Notice will be sent concurrently to Notice Recipients at 9.30am on 15 January 2018.
(d) Link's email server will be programmed to make a total of 3 delivery attempts (if required) over 2 business days.
(e) If Link receives notification that an email was, or may not have been, delivered after 2 business days, then on 17 January 2018 it will:
(i) provide Herbert Smith Freehills with an email delivery failure report identifying the email failures or potential failures; and
(ii) send the Notice by ordinary post in accordance with section 3.3 below to all Notice Recipients identified in the delivery failure report.
(f) On 18 January 2018, Link will confirm to Herbert Smith Freehills the number of Notices sent by e-mail. Herbert Smith Freehills will provide to William Roberts Lawyers this number (without any information that would reveal the identification details of the Notice Recipient).
3.3 Ordinary post
(a) The Notice will be sent by ordinary post to all Notice Recipients who:
(i) have not provided an email address to Link by 15 January 2018; and
(ii) did not receive, or may or may not have received, the Notice by email in accordance with section 3.1 above on 15 January 2018.
(b) The Notice will be attached to a cover letter, the content of which shall read as set out at Schedule C to the Orders of 8 December 2017 (Cover Letter).
(c) The Cover Letter and Notice will be printed, folded into DL and placed into a DLX non-window faced envelope with the name and address of the Notice Recipients inkjet printed on the front.
(d) On 18 January 2018, Link will confirm to Herbert Smith Freehills the number of Notices sent by ordinary post. Herbert Smith Freehills will provide William Roberts Lawyers with this number (without any other information that would reveal the identification details of the Notice Recipient).
4 General Compliance with this Protocol
(a) In the event that Link becomes aware that they are unable to comply with any requirements under this protocol, they are to notify Herbert Smith Freehills in writing within 24 hours of so becoming aware.
(b) In the event that Link becomes aware that they have failed to comply with any requirements under this protocol, they are to notify Herbert Smith Freehills in writing within 24 hours of so becoming aware.
Schedule F
Form 19
Rule 9.32
Amended on 8 December 2017 pursuant to order of the Court made on 8 December 2017
Amended Originating application starting a representative proceeding under Part IVA of the Federal Court of Australia Act 1976
No. NSD2074 of 2016
Federal Court of Australia
District Registry: New South Wales
Division: General
RICHARD JOHN FINDLAY BRADGATE AS TRUSTEE OF THE BRADGATE SUPERANNUATION FUND
Applicant
ASHLEY SERVICES GROUP LIMITED ACN 094 747 510
Respondent
To the Respondent
The Applicant applies for the relief set out in this application.
The Court will hear this application, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence.
You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.
Time and date for hearing:
Place: Federal Court of Australia
Date:
Signed by an officer acting with the authority of the District Registrar
[29]
Details of claim
Terms defined in the Further Amended Statement of Claim carry the same meaning when used in this Amended Originating Application.
On the grounds stated in the accompanying Further Amended Statement of Claim, the Applicant claims on behalf of the Bradgate Superannuation Fund, and on behalf of Group Members:
a. An order pursuant to section 729(1) of the Corporations Act 2001 (Cth) (CA) that the Respondent pay compensation for the loss and damage caused by its contraventions of section 728(1) of the CA;
aa. An order for compensation pursuant to section 1317HA(1) of the CA;
b. An order for compensation Damages pursuant to:
i. Section 1041I(1) of the CA; or
ii. Section 12GF(1) of the Australian Securities and Investment Commission Act 2001 (ASIC Act); or
iii. Section 236 of the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), and as applicable pursuant s 28 of the Fair Trading Act 1987 (NSW);
c. Interest, including interest on statutory compensation on any statutory compensation awarded;
d. Costs;
e. Such further order as the Court determines is appropriate.
Questions common to claims of group members
The questions of law or fact common between the claims of the Applicant and the Group Members are:
a. whether the Respondent made the following representations:
i. the Prospectus Forecasts;
ii. the Prospectus Forecast Basis Representations;
b. whether the Respondent knew or ought reasonably to have obtained the following information at the time it authorised the issue of the Pathfinder Prospectus, the Initial Prospectus and/or the Replacement Prospectus:
i. the Integracom EBIT Information;
ii. the TFYT Funding Change Risk Information;
iii. the Integracom Funding Change Effect Information;
c. whether the Respondent contravened section 728(1) of the CA by making the Prospectus Forecasts and Prospectus Omissions;
d. whether the Respondent contravened sections 1041H of the CA, 12DA(1) of the ASIC Act and/or section 18 of the ACL by making and omitting to correct:
i. the Prospectus Forecasts; and/or
ii. the Prospectus Forecast Basis Representations;
e. whether the Respondent contravened section 674(2) of the CA by omitting to disclose to the ASX:
i. the Integracom EBIT Information;
ii. the TFYT Funding Change Risk Information;
iii. the Integracom Funding Change Effect Information; and
f. whether any and if so, what conduct by the Respondent in contravention of statutory norms had the effect that prices for its securities were higher than their true value and/or the market price that would have prevailed but for the Market Contraventions and, if so:
i. to what extent;
ii. whether statutory compensation is recoverable by the Applicant and some or all of the Group Members; and
iii. the correct measure of the statutory compensation for which the Respondent may be liable to the Applicant and some or all of the Group Members.
Representative Action
The Applicant brings this application as a representative party under Part IVA of the Federal Court of Australia Act 1976 (Cth).
The Group Members to whom this proceeding relates are those persons referred to in paragraph 1 of the Further Amended Statement of Claim, being persons who or which:
a. acquired fully paid ordinary shares in Ashley Services Group Limited ACN 094 747 510 (Ashley Shares), pursuant to the Offer (as defined in paragraph 27 of the Further Amended Statement of Claim) or otherwise acquired Ashley Shares in the Relevant Period; and
b. have as at the date of the commencement of this proceeding entered into a litigation funding and management agreement with IMF Bentham Limited ACN 067 298 088. with the exception of Andrew Douglas Shrimpton and Dean Shrimpton, were not during the Relevant Period, and are not, any of the following:
(i) a related party (as defined by s 228 of the Corporations Act 2001 (Cth)) of Ashley;
(ii) a related body corporate (as defined by s 50 of the Corporations Act 2001 (Cth)) of Ashley;
(iii) an associated entity (as defined by s 50AAA of the Corporations Act 2001 (Cth)) of Ashley;
(iv) a director, an officer, or a close associate (as defined by s 9 of the Corporations Act 2001 (Cth)) of Ashley; or
(v) a judge or the Chief Justice of the Federal Court of Australia or a Justice or the Chief Justice of the High Court of Australia; and
c. have suffered loss or damage by reason of the conduct of Ashley pleaded in the Further Amended Statement of Claim.
Applicant's address
The Applicant's address for service is:
Place: William Roberts Lawyers
Level 22, 66 Goulburn Street
Sydney, NSW 2000
The Applicant's address is:
32 Augusta Road
Fairlight, NSW 2094
Service on the Respondent
It is intended to serve this application on the Respondent.
Date: 30 November 2016 8 December 2017
Signed by Bill Petrovski of William Roberts Lawyers
Lawyer for the Applicant
[30]
Schedule G
Form 17
Rule 8.05(1)(a)
Amended on 8 December 2017 pursuant to an order of the Court made on 8 December 2017
FURTHER AMENDED STATEMENT OF CLAIM
No. NSD2074 of 2016
Federal Court of Australia
District Registry: New South Wales
Division: General
RICHARD JOHN FINDLAY BRADGATE AS TRUSTEE OF THE BRADGATE SUPERANNUATION FUND
Applicant
ASHLEY SERVICES GROUP LIMITED ACN 094 747 510
Respondent
TABLE OF CONTENTS
A. INTRODUCTION 3
A.1 The Applicant and the Group Members 3
A.2 The Respondent 4
A.3 The Respondent's Directors 5
B. ASHLEY AND INTEGRACOM 7
B.1 Ashley 7
B.2 Integracom 7
B.3 Acquisition of Integracom by Ashley 8
C. THE INITIAL PUBLIC OFFERING 9
C.1 The Offer Documents 9
C.2 The Disclosures in the Offer documents concerning the Acquisition of Integracom 13
C.3 Statements in the Offer documents concerning the financial impact of the Acquisition of Integracom 15
C.4 Other Statements in the Offer Documents 16
D. Significance of Integracom to Ashley 18
D.1 Financial significance of Integracom to Ashley 18
E. ASHLEY'S TRUE FINANCIAL POSITION 20
E.1 Dependency of the Training business on government funding 20
E.2 Government funding and reforms relevant to the Training business 21
E.3 Impact of government funding reforms on the Training business 30
E.4 Information which Ashley knew or ought reasonably to have obtained 32
F. PROSPECTUS CONTRAVENTIONS 38
F.1 Introduction 38
F.2 Misleading Statement in the Replacement Prospectus 38
F.3 Omissions from the Replacement Prospectus 39
F.4 The Prospectus Contraventions 39
G. OTHER CONTRAVENTIONS 39
G.1 Misleading or deceptive conduct 39
G.2 Continuous Disclosure Contraventions 41
H. CONTRAVENING CONDUCT CAUSED LOSS 42
H.1 No transaction case in respect of the Prospectus Contraventions 42
H.2 Market-based causation 43
H.3 Reliance 45
H.3 Loss or damage suffered by the Applicant and Group Members 47
SCHEDULE OF DEFINED TERMS 49
A. INTRODUCTION
A.1 The Applicant and the Group Members
This proceeding is commenced as a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) by the Applicant as trustee of the Bradgate Superannuation Fund, and on behalf of all persons who or which:
(a) acquired fully paid ordinary shares in Ashley Services Group Limited ACN 094 747 510 (Ashley Shares), pursuant to the Offer (as defined in paragraph 27 of this Further Amended Statement of Claim) or otherwise acquired Ashley Shares in the Relevant Period; and
(b) have as at the date of the commencement of this proceeding entered into a litigation funding and management agreement with IMF Bentham Limited ACN 067 298 088, with the exception of Andrew Douglas Shrimpton and Dean Shrimpton, were not during the Relevant Period, and are not, any of the following:
(i) a related party (as defined by s 228 of the Corporations Act 2001 (Cth)) of Ashley;
(ii) a related body corporate (as defined by s 50 of the Corporations Act 2001 (Cth)) of Ashley;
(iii) an associated entity (as defined by s 50AAA of the Corporations Act 2001 (Cth)) of Ashley;
(iv) a director, an officer, or a close associate (as defined by s 9 of the Corporations Act 2001 (Cth)) of Ashley; or
(v) a judge or the Chief Justice of the Federal Court of Australia or a Justice or the Chief Justice of the High Court of Australia; and
(c) have suffered loss or damage by reason of the conduct of Ashley pleaded in the Further Amended Statement of Claim.
(Group Members).
The Applicant acquired Ashley Shares pursuant to the Offer, and held those shares throughout the period from 21 August 2014 to 26 April 2015 (Relevant Period).
Particulars
Details of the particular transaction are set out below.
Date Transaction type Number of shares
21 August 2014 Subscription 9,639
[31]
As at the date of the commencement of this proceeding, the group, on whose behalf this proceeding is brought, comprised more than seven persons.
A.2 The Respondent
Ashley is and at all material times was:
(a) incorporated pursuant to the Corporations Act 2001 (Cth) (CA) and capable of being sued;
(b) a person for the purposes of:
(i) s 728(1) of the CA;
(ii) s 1041H of the CA;
(iii) s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act);
(iv) s 18 of the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as applicable pursuant to:
A. s 12 of the Australian Consumer Law and Fair Trading Act 2012 (VIC);
B. s 28 of the Fair Trading Act 1987 (NSW);
C. s 16 of the Fair Trading Act 1989 (QLD);
D. s 6 of the Australian Consumer Law (Tasmania) Act 2010 (TAS);
E. s 19 of the Fair Trading Act 2010 (WA);
F. s 14 of the Fair Trading Act 1987 (SA);
G. s 7 of the Fair Trading (Australian Consumer Law) Act 1992 (ACT); and/or
H. s 27 of the Consumer Affairs and Fair Trading Act (NT),
(individually, or together, the ACL); and
(c) the consolidated reporting entity for Ashley and its controlled entities.
From 21 August 2014, Ashley has been:
(a) included in the official list (Official List) of the financial market operated by Australian Securities Exchange Limited (ASX);
(b) subject to and bound by the Listing Rules of the ASX (ASX Listing Rules);
(c) a listed disclosing entity within the meaning of s 111AL(1) of the CA;
(d) an entity, the securities of which are ED securities for the purposes of s 111AE of the CA; and
(e) obliged by ss 111AP(1) and/or 674(1) of the CA and/or ASX Listing Rule 3.1 to, once it is, or becomes aware of, any information concerning Ashley that a reasonable person would expect to have a material effect on the price or value of Ashley Shares, tell the ASX that information immediately (unless the exceptions in ASX Listing Rule 3.1A apply).
A.3 The Respondent's Directors
Mr Ross John Shrimpton (Ross Shrimpton):
(a) was appointed an Executive Director of Ashley on 12 October 2000, and remained in that office at all material times including the Relevant Period;
(b) was the Managing Director of Ashley at all material times including the Relevant Period; and
(c) was a member of the Audit and Risk Management Committee from 30 June 2014 to a date unknown to the applicant (but before 30 June 2015).
Mr Peter Turner (Turner) was, during the period 31 July 2014 to 1 October 2015:
(a) a Non-Executive Director of Ashley;
(b) the Non-Executive Chairman of Ashley; and
(c) the Chairman and later a member of the Audit and Risk Management Committee, and a member of the Nomination Committee.
Mr Vincent Fayad (Fayad):
(a) was during the period 31 July 2014 to 30 November 2014:
(i) an Executive Director of Ashley; and
(ii) the Interim Chief Financial Officer of Ashley; and
(b) was a Non-Executive Director of Ashley during the period from 1 December 2014 to 1 October 2015; and
(c) was Chairman of the Audit and Risk Management Committee from a date unknown to the applicant (but sometime after 30 June 2014) to 1 October 2015.
The Honourable Simon Crean (Crean) was, during the period 31 July 2014 to 1 October 2015:
(a) a Non-Executive Director of Ashley; and
(b) the Chairman of the Nomination Committee and a member of the Audit and Risk Management Committee.
Mr Marc Ross Shrimpton (Marc Shrimpton):
(a) was a Director of Ashley during the period 1 June 2014 to 31 July 2014; and
(b) was an Alternate Director of Mr Ross Shrimpton from 31 July 2014.
[NOT USED]
By reason of the matters pleaded in paragraphs 6 to 10 11, any information which any of Messrs Ross Shrimpton, Turner, Fayad, Crean, or Marc Shrimpton (collectively, Ashley's Directors) became aware of, or which ought reasonably to have come into his possession in the course of the performance of his respective duties was information of which Ashley was aware (as awareness is defined in ASX Listing Rule 19.12).
B. ASHLEY AND INTEGRACOM
B.1 Ashley
At all material times, Ashley carried on business as an integrated non-government provider of training (Training business) and labour hire services throughout Australia, through its subsidiaries and brands.
Particulars
Replacement Prospectus, p 7.
Ashley's Annual Report 2014 published and lodged with the ASX on or around 26 September 2014, p. 3.
At all material times, Ashley's primary source of revenue in relation to its Training business was Commonwealth and State Government funding schemes and fee-for-service arrangements.
Particulars
Replacement Prospectus, p 11.
B.2 Integracom
At all material times, Integracom Management Group Pty Limited ACN 121 173 877, as trustee of the Integracom Unit Trust (Integracom) was a private education provider specialising in delivering telecommunications and electronic security training to the corporate and public market throughout Australia.
Particulars
Replacement Prospectus, pp. 22, 35, 37, 58.
At all material times, Integracom's primary source of revenue in relation to its business was Commonwealth and State Government funding schemes and fee-for-service arrangements.
Particulars
See pp 11; also definition of 'Training' in Replacement Prospectus, p. 140 and pp. 35, 37.
B.3 Acquisition of Integracom by Ashley
In and from April 2014, Ashley and Integracom commenced working together to optimise integration of their respective businesses.
Particulars
Replacement Prospectus at p 22.
On 24 June 2014, a Unit Sale and Purchase Agreement (USPA) was entered into between:
(a) Integracom Holdings Pty Limited, a wholly owned subsidiary of Ashley (as Purchaser);
(b) Ashley (as Purchaser Guarantor);
(c) Holmes Management Group Pty Ltd as trustee of the Holmes Family Trust (as Seller), being the beneficial owner of 100% of the units in the Integracom Unit Trust; and
(d) Carl and Marie Holmes (as seller guarantors and warrantors),
Under the USPA:
(a) Holmes Management Group Pty Ltd agreed to sell 100% of the units in the Integracom Unit Trust to Integracom Holdings Pty Limited, on terms that at the completion of the USPA, ASG Integracom (Aust) Pty Limited ACN 153 558 457 (ASG Integracom), a wholly owned subsidiary of Ashley, was to become the trustee of the Integracom Unit Trust, and carry on Integracom's business (Acquisition); and
(b) Integracom Holdings Pty Limited agreed to pay consideration of $31.8 million (initial cash payment) plus Ashley Shares to be issued the value of $10 million, plus certain adjustments, plus an earnout in three instalments of $5 million each in respect of FY2015, FY2016 and FY2017 (payable 50% in Ashley Shares and 50% in Ashley Shares or cash at the election of Holmes Management Group Pty Ltd).
Pursuant to the USPA, inter alia, it was a condition precedent that:
(a) Ashley undertake an initial public offering of Ashley Shares;
(b) Carl Holmes (the founder, sole director and ultimate beneficial owner of Integracom) enter into a three year executive service agreement with ASG Integracom to take effect immediately following completion of the initial public offering pursuant to a three year employment contract; and
(c) Ashley be satisfied with certain due diligence information disclosed by Integracom.
C. THE INITIAL PUBLIC OFFERING
C.1 The Offer Documents
At a time presently unknown to the Applicant before 28 July 2014, Ashley issued a draft prospectus (Pathfinder Prospectus), pursuant to s 734(9) of the CA, to certain institutional investors and brokers through Evans & Partners and Cannacord Genuity as joint bookrunners, underwriters and lead managers (Joint Bookrunners).
By the Pathfinder Prospectus, Ashley invited expressions of interest from potential investors in Ashley Shares to participate in an offer of Ashley Shares to raise funds on the terms set out in the Pathfinder Prospectus (which reflected the terms pursuant to which an offer was later anticipated to be made by a prospectus to be issued under s 709 of the CA).
Particulars
The facts, matters and circumstances on which the Applicant relies to allege that Ashley, by the Pathfinder Prospectus, invited expressions of interest as alleged in paragraph 22 include:
(i) the pleading at paragraph 21 of the Amended Statement of Claim;
(ii) the two offers contained in the Pathfinder Prospectus (page 19 of the Pathfinder Prospectus and using the defined terms contained therein):
(A) the Broker Firm Offer, which consisted of an offer of Shares to eligible sophisticated and retail investors in Australia and New Zealand who received a firm allocation from their Syndicate Broker; and
(B) the Institutional Offer, which consisted of an offer to Institutional Investors in Australia and a number of other eligible jurisdictions to bid for Shares;
(iii) in respect of the Broker Firm Offer, Ashley's invitation to eligible investors to complete an Application form, as set out in the section "How do I apply for Shares?" at page 20 of the Pathfinder Prospectus:
"Broker Firm Applicants may apply for Shares by completing a valid Application Form attached to or accompanying this Prospectus, and lodging it with the Syndicate Broker who invited them to participate in the Offer."
(iv) in respect of the Broker Firm Offer, the facts referred to in the detailed outline contained in paragraph 6.10 (page 107) of the Pathfinder Prospectus; and
(v) in respect of the Institutional Offer, the facts referred to in the detailed outline contained in paragraph 6.11 (page 108) of the Pathfinder Prospectus.
On or about 1 August 2014, Ashley lodged a prospectus (Initial Prospectus) with the Australian Securities and Investments Commission (ASIC).
On or about 7 August 2014, Ashley lodged with ASIC a document which replaced the Initial Prospectus, entitled "Prospectus for the offer of 59.5 million shares at an issue price of $1.66 per share to raise a total of $98.7 million" (Replacement Prospectus), which Ashley also:
(a) made available to the Joint Bookrunners to provide to potential investors in Ashley Shares (including to persons to whom the Pathfinder Prospectus had previously been provided);
(b) published in electronic form on the website www.ashleyservicesgroup.com.au/prospectus; and
(c) made paper copies available to any person in Australia who called the "Share Registry" on 1300 361 735 (within Australia) or (+61) 1300 361 735 (outside Australia).
Each of the Pathfinder Prospectus and the Initial Prospectus was substantially in identical terms to the Replacement Prospectus.
Particulars
A differences between the Pathfinder Prospectus and both the Initial Prospectus and the Replacement Prospectus is that the Pathfinder Prospectus did not disclose the final issue price per Ashley Share ($1.66), but rather that it would be in the range of $1.56 to $1.76. This had consequential impacts on the market capitalisation at issue price and the Price Earning Ratio disclosed in the Pathfinder Prospectus.
Annexure A to this Amended Statement of Claim contains a summary of the differences between each of the Pathfinder, Initial and Replacement Prospectuses.
On or about 1 August 2014, Ashley:
(a) applied to the ASX for admission of Ashley to the Official List, and quotation of Ashley Shares on the ASX;
(b) lodged with the ASX:
(i) Appendix 1A ("ASX Listing Application and Agreement") (Appendix 1A); and
(ii) "Information Form and Checklist" (Information Form),
(together, Pre-Quotation Disclosure), as required by ASX Listing Rule 1.7, in order to apply for admission to the official list; and
(c) as part of the Pre-Quotation Disclosure:
(i) lodged with the ASX the Replacement Prospectus (as required by Item 4 of the Information Form);
(ii) confirmed that all information that a reasonable person would expect to have a material effect on the price or value of Ashley Shares was included in or provided with the Pre-Quotation Disclosure (as required by Item 43 of the Information Form); and
(iii) by deed poll warranted that the information and documents required by the Appendix 1A, including the information and documents referred to in the Information Form were true and complete (as required by cl 4 of the Appendix 1A).
By the Replacement Prospectus Ashley:
(a) made an offer of 59,500,000 Ashley Shares (Offer) at a price of $1.66 per Ashley Share (Offer Price) on the terms set out in the Replacement Prospectus, to potential investors in Ashley Shares in Australia and New Zealand (and to certain institutional investors outside of Australia); and
(b) disclosed that:
(i) within seven days after the date of the Replacement Prospectus, Ashley would apply to the ASX for admission of Ashley to the Official List, and quotation of Ashley Shares on the ASX (such disclosure being required by s 711(5) of the CA);
(ii) allotment of Ashley Shares would occur on 20 August 2014;
(iii) Ashley Shares would be listed on the ASX, and would commence trading on the ASX:
(A) on a deferred settlement basis on 21 August 2014; and
(B) on a normal settlement basis on 26 August 2014.
By reason of the matters pleaded in paragraphs 21 to 27:
(a) the Pathfinder Prospectus was, from a time no later than on or about 28 July 2014, available to the market of potential investors in Ashley Shares (in that at that time, that market comprised only those persons to whom the Pathfinder Prospectus was sent); and
(b) the Replacement Prospectus was, from a time no later than 7 August 2014, or alternatively, the time when Ashley was admitted to the Official List of the ASX, publicly available to the market of potential investors in Ashley Shares.
C.2 The Disclosures in the Offer documents concerning the Acquisition of Integracom
The Replacement Prospectus stated that the Offer was being conducted for purposes, including to:
(a) raise capital to fund the acquisition of Integracom (approximately $31.8 million);
(b) allow existing shareholders in Ashley to realise a portion of their investment in Ashley (approximately $41.6 million);
(c) repay bank debt and provide working capital (approximately $17.9 million); and
(d) pay the costs of undertaking the Offer (approximately $7.4 million).
Particulars
Replacement Prospectus at pp.10, 104.
The Replacement Prospectus stated that Ashley had entered into a conditional agreement to acquire the business of Integracom concurrently with the IPO.
Particulars
Replacement Prospectus at p. 7.
The Replacement Prospectus stated that:
(a) Integracom had a market leading position delivering vocational training to the telecommunications industry (which industry the directors of Ashley believed was a sector with long term growth for Ashley because of skills shortages and mandatory training requirements), and that the acquisition of Integracom provided Ashley with a market leading position in this sector;
(b) Integracom was a Western-Australian based business which operated nationally (having operations and training facilities in all six states), specialising in training for the telecommunications and electronic security sectors; and
(c) Integracom was one of the largest providers of accredited telecommunications training in Australia, based on the number of enrolments expected in FY2014F.
Particulars
Replacement Prospectus at pp. 7, 22.
The Replacement Prospectus stated that:
(a) upon completion of the IPO, Ashley would merge Integracom's business with Ashley's existing telecommunications training business; and
(b) upon completion of the IPO, Integracom would form the core of Ashley's telecommunications training services marketed under the brand "ASG Integracom".
Particulars
Replacement Prospectus at pp. 22, 37.
The Replacement Prospectus disclosed the terms of USPA referred to in paragraphs 18 to 20 above.
Particulars
Replacement Prospectus at pp. 63, 104, 114.
The Replacement Prospectus stated that:
(a) Ashey and Integracom had been working together since April 2014 to optimise post-acquisition integration of the businesses; and
(b) Ashley and Integracom had begun joint initiatives in relation to corporate telecommunications in April 2014.
Particulars
Replacement Prospectus at pp. 22, 37.
The Replacement Prospectus stated that at the completion of the Offer and the Acquisition, Holmes would:
(a) enter into a three-year employment contract with ASG Integracom; and
(b) become one of Ashley's "key executives", specifically "Director, ASG Integracom Company" and "executive of Ashley Services' Western Australian Training business".
Particulars
Replacement Prospectus, pp. 7, 18, 58, 115, 116.
C.3 Statements in the Offer documents concerning the financial impact of the Acquisition of Integracom
For the purposes of the Replacement Prospectus, Ashley referred to Integracom as comprising part of its Training business.
Particulars
See definition of 'Training' in Replacement Prospectus, p. 140; also pp. 35, 37.
For the purposes of preparing the financial statements and forecasts in the Replacement Prospectus, Ashley:
(a) included Integracom into the pro forma historical income statements during the financial years 2011, 2012, 2013 and the six months to 31 December 2013, as well as the pro forma historical balance sheet as at 31 December 2013, as if it were owned by Ashley at that time; and
(b) included Integracom in the pro forma income statement for the twelve-month period ending 30 June 2014 (FY2014) utilising:
(i) Integracom's unaudited results for the 10 months to 30 April 2014; and
(ii) Integracom's current trading performance up until the date of the Replacement Prospectus (Integracom Trading Performance Information), to prepare the forecast for the two months ending 30 June 2014 as if Integracom were owned by Ashley at that time.
Particulars
In relation to (a), Replacement Prospectus p 63.
In relation to (b), Replacement Prospectus pp. 64 (Notes 1 and 2, Table 1), 65 (Note 1, Table 3), 79 (para. 3.11.3).
The Replacement Prospectus stated that on a pro forma consolidated basis (assuming that the Acquisition and Offer had taken place):
(a) the revenue derived by Ashley from the Training business (including ASG Integracom) was forecast to increase from $41.5m in FY2014F to $55.1m in FY2015F (being an increase of $13.6m (32.9%)), driven by an increase of approximately 3,500 enrolments and an increase in average course fees;
(b) enrolments in Ashley's Training business (including ASG Integracom) were forecast to increase from 19,663 in FY2014F to 23,115 in FY2015F (being an increase of 17.6%);
(c) Ashley's total forecast consolidated revenue was forecast to increase from $285.1m in FY2014 to $319.5m in FY2015F (being an increase of $34.4m (12%));
(d) the EBITDA derived by Ashley from the Training business (including ASG Integracom) was forecast to increase from $16.8m in FY2014F to $24.5m in FY2015F (being an increase of $7.7m (45.8%));
(e) Ashley's total forecast consolidated EBITDA was forecast to increase from $22.8m in FY2014F to $31m in FY2015F (being an increase of $8.2m (36%));
(f) Ashley's Net Profit After Tax But Before Amortisation (NPATA) was forecast to increase from $15m in FY2014F to $20.5m in FY2015F (being an increase of $5.5m (36.6%)),
(Prospectus Forecasts).
Particulars
Replacement Prospectus, pp. 6, 13, 64, 66, 82.
C.4 Other Statements in the Offer Documents
The Replacement Prospectus contained the following statements:
(a) if any Commonwealth or State government decides to reduce funding to the VET sector generally, this could have a material adverse impact on Ashley's earnings and financial position (p 15);
(b) any change in the government funding which affects the distribution of public funding to the VET or training sector would affect the competitive position of the Training business (including ASG Integracom), and could have a material adverse effect on Ashley's earnings and financial position (p 98);
(c) funding arrangements are modified by Commonwealth and State governments from time to time. For example, the Commonwealth Government replaced the Tools for Your Trade Payment of $5,500 with the Trade Support loans of up to $20,000 in July 2014 (p 30) (TFYT Impact Prospectus Statement);
(d) the AAIP (which included the Tools for Your Trade Payment) contains incentives and personal benefits, including payments to employers and the individual being trained (p 30);
(e) the key drivers of Training business revenue are the number of enrolments and revenue per qualification. These two drivers are in turn, dependent upon a number of factors including the amount of State and Commonwealth government funding available for the VET sector, and the eligibility of employees and/or students for government funding including State and Commonwealth government funding (p 72); and
(f) the Training business (including ASG Integracom) has experienced significant historical growth in course enrolments from FY2011 to FY2013 and has forecast material growth from FY2013 to FY2015F. This growth can be attributed to factors that include the implementation of a demand driven model in certain Australian States and acquisitions of complementary training businesses (such as ASG Integracom) (p 34).
The Replacement Prospectus contained an Investigating Accountant's Report (IAR) prepared by Grant Thornton Corporate Finance Pty Ltd (Grant Thornton), which stated, inter alia, that:
(a) Grant Thornton had reviewed the Forecast Financial Information (being the pro forma and statutory forecast consolidated statement of comprehensive income for the years ending 30 June 2014 and 30 June 2015, and the pro forma and statutory forecast consolidated statement of cash flows for the years ending 30 June 2014 and 30 June 2015);
(b) based on Grant Thornton's review, which is not an audit, and based on an investigation of the reasonableness of the Directors' best estimate assumptions giving rise to the Forecast Financial Information, nothing had come to Grant Thornton's attention which caused Grant Thornton to believe that:
(i) the Directors' best estimate assumptions did not provide a reasonable basis for the preparation of the Forecast Financial Information; and
(ii) the Forecast Financial Information was not prepared on the basis of the best estimate assumptions,
(Grant Thornton Opinion).
D. Significance of Integracom to Ashley
D.1 Financial significance of Integracom to Ashley
At the time that the Pathfinder Prospectus, Initial Prospectus and Replacement Prospectus (Offer Documents) were issued, by reason of the matters pleaded in paragraph 38 above in Ashley's pro forma consolidated financial forecasts for FY2015F (assuming that the Acquisition and Offer had taken place):
(a) the revenue forecast to be derived by Ashley from the Training business (including ASG Integracom) represented 17.2% of Ashley's total forecast consolidated revenue in FY2015F ($55.1m/$319.5m); and
(b) the EBITDA forecast to be derived by Ashley from the Training business (including ASG Integracom) represented 79% of Ashley's total forecast consolidated EBITDA in FY2015F ($24.5m/$31m).
Particulars
Subparagraph (a) is derived from subparagraph 38(a) and 38(c).
Subparagraph (b) is derived from subparagraph 38(d) and 38(e).
Further, at the time that the Offer Documents were issued, in Ashley's pro forma consolidated financial forecasts for FY2015F (assuming that the Acquisition and Offer had taken place):
(a) the revenue derived from ASG Integracom was $22.8m (representing 41.4% of revenue forecast to be derived from Ashley's Training business, and 7.1% of total forecast consolidated revenue, in FY2015F); and
(b) the EBITDA forecast to be derived by Ashley from ASG Integracom was $13.3m (representing 54.3% of EBITDA forecast to be derived from Ashley's Training business, and 42.9% of total forecast consolidated EBITDA).
Particulars
The proportion of the forecast revenue and EBITDA contained in the forecasts in the Replacement Prospectus attributable to ASG Integracom was disclosed by Ashley in an announcement to the ASX dated 27 April 2015 entitled "Market update and FY15 Earnings Guidance".
Further, at the time that the Offer Documents were issued:
(a) of the funds proposed to be raised by the Offer, approximately 32% was for the purchase of the Integracom business (being $31.8m of $98.7m);
(b) Integracom was worth at least $41.8m, which represented approximately 17% of the market capitalisation of Ashley based on the Offer Price, and the number of Ashley Shares that would be issued following the Offer.
Particulars
As to (a), paragraph 29(a) is repeated. The percentage in (a) is derived by dividing the total value of the cash payment made by Ashley for purchase of the Management Integracom business (being $31.8m) by the total amount of the funds raised by the Offer (being $98.7m) and multiplied by 100.
The percentage in (b) is derived by dividing the total amount payable to purchase Integracom (being $31.8m in cash and $10m in Ashley Shares) by the market capitalisation of Ashley based on the Offer Price (Replacement Prospectus pp.6 and 104).
By reason of the matters pleaded in paragraphs 41 to 43, at the time the Offer Documents were issued:
(a) the Acquisition of ASG Integracom was a significant reason for Ashley making the Offer;
(b) ASG Integracom was forecast to make a significant contribution to the future financial performance of Ashley's Training business, and Ashley; and
(c) ASG Integracom, on a pro forma basis, represented and was forecast to continue to make a significant proportion of the valuation of Ashley based upon the Offer price.
By reason of the matters pleaded in paragraph 41 to 44, information which was likely to, or there was a material risk might, have a material effect on revenue which was derived by ASG Integracom (including by that part of ASG Integracom representing what was formerly Integracom) (Integracom Adverse Financial Impact Information) was:
(a) information which was likely to, or there was a material risk might, have a material adverse impact on Ashley's operations, earnings and financial position (Ashley Adverse Financial Impact Information); and
(b) by reason of (a), information that investors and their professional advisers would reasonably require to make an informed assessment of the assets, liabilities, financial position and performance, profits and losses and prospects of Ashley within the meaning of s 710(1) of the CA (Ashley Relevant Information).
E. ASHLEY'S TRUE FINANCIAL POSITION
E.1 Dependency of the Training business on government funding
As at the time the Offer Documents were issued:
(a) a significant proportion of the revenue generated from Ashley's Training business (including ASG Integracom) was derived from Commonwealth and State government funding, such that if any government decided to reduce funding to the VET sector generally, or in sectors where the Training business operated, this could have a material adverse impact on Ashley's earnings and financial position; and
(b) any change in the government funding which affects the distribution of public funding to the VET or training sector would affect the competitive position of the Training business (including ASG Integracom), and could have a material adverse effect on Ashley's earnings and financial position,
(together, Training Business Funding Risks).
Particulars
Pathfinder, Initial and Replacement Prospectuses, p.15 (Section 1.4), p.98 (Sections 5.2.1(1) and (4)).
As at the time the Offer Documents were issued, by reason of the matters pleaded in paragraphs 41 to 45 and/or 46, information which was likely to, or there was a material risk might, have a material effect on Commonwealth or State government funding to ASG Integracom (Integracom Adverse Funding Impact Information), was:
(a) information which was likely to, or there was a material risk might, have a material adverse impact on the funding of Ashley's Training business (Ashley Adverse Funding Impact Information); and
(b) by reason of sub-paragraph (a), Integracom Adverse Financial Impact Information; and
(c) information which was:
(i) Ashley Adverse Financial Impact Information; and
(ii) Ashley Relevant Information.
E.2 Government funding and reforms relevant to the Training business
From 1 July 2005 until on or around 30 June 2009, the Commonwealth Government implemented the Social Security Amendment (Extension of Youth Allowance and Austudy Eligibility to New Apprentices) Act 2005 (2005 Funding Act).
Particulars
The term 'implemented' means "caused to come into effect and operation and thereafter, acted in accordance with".
The 2005 Funding Act extended various tax-free payments to new apprentices, relevantly including:
(a) a payment of $500 upon the successful completion of their first and second years of apprenticeship training (Commonwealth Trade Learning Scholarship) in trade occupations listed in the Department of Employment and Workplace Relations National Skills Shortage (DEWR Skills Shortage List); and
(b) a voucher of $800 to spend on a tool kit, if undertaking certain trades listed in the DEWR Skills Shortage List, known as the 'Tools for Your Trade' initiative (TFYT Voucher),
(together, the 2005 Funding Initiatives).
The purpose of the 2005 Funding Act, including the 2005 Funding Initiatives, was to assist new apprentices with extra help during the initial years of their training while their wages are generally at their lowest.
Particulars
Revised Explanatory Memorandum, Social Security Amendment (Extension of Youth Allowance and Austudy Eligibility to New Apprentices) Bill 2005, see "Outline".
From 1 July 2007 until on or around 30 June 2009, the Commonwealth Government implemented the Social Security Amendment (Apprenticeship Wage Top-Up For Australian Apprentices) Act 2007 (2007 Funding Act).
The 2007 Funding Act extended tax-free payments to apprentices totalling $2,000, comprising payments of $500 at the 6, 12, 18 and 24 month points of their training (or the part-time equivalent), to new apprentices under thirty in a trade occupation identified as experiencing skills shortages and listed on the Migration Occupations in Demand List (Apprenticeship Wage Top Up and 2007 Funding Initiative).
The purpose of the 2007 Funding Act and the 2007 Funding Initiative, was to acknowledge that the first and second year of an apprenticeship can be particularly difficult, when wages are at their lowest, and to assist new apprentices during this period.
Particulars
Explanatory Memorandum, Social Security Amendment (Apprenticeship Wage Top-Up For Australian Apprentices) Bill 2007, see "Outline".
From 1 January 2010 until 30 June 2014, the Commonwealth Government implemented the Social Security and Other Legislation Amendments (Australian Apprentices) Act 2009 (2009 Funding Act).
The 2009 Funding Act, inter alia, made an administrative change to the way in which apprenticeships were funded by extending and combining the 2005 and 2007 Funding Initiatives (being the Commonwealth Trade Learning Scholarship, the TFYT Voucher and the Apprenticeship Wage Top-Up) into one payment known as the TFYT Payment.
A purpose of the 2009 Funding Act and the TFYT Payment was to ease the financial burden for Australian apprentices undertaking apprenticeships in areas of national skills shortage.
Particulars
Explanatory Memorandum, Social Security and Other Legislation Amendment (Australian Apprentices) Bill 2009, see "Outline".
Between 1 January 2010 and 31 December 2010, the TFYT Payment totalled $3,800 to be made directly to apprentices in skills shortage trades (and in all agriculture occupations and, in rural and regional areas, horticulture occupations), over the life of their apprenticeship, comprising five tax-free payments of $800 at the 3, 12 and 24 month periods of full-time training (or equivalent part time), with a further $700 at the 36-month mark and at completion.
Particulars
2009-2010 Commonwealth Government Budget, Part 2: Expense Measures, Education Employment and Workplace Relations, accessed at http://www.budget.gov.au/2009-10/content/bp2/html/bp2_expense-11.htm
Between 1 January 2011 and 30 June 2014, the TFYT Payment was increased to $5,500, comprising five tax-free payments of $1,000 at the 3, 12 and 24 month periods of full time training (or equivalent part time), with a further $1,200 at the 36-month mark and a completion payment of $1,500.
Particulars
2010-2011 Commonwealth Government Budget, Part 1: Expense Measures, Education Employment and Workplace Relations (2011 Commonwealth Budget), accessed at http://www.budget.gov.au/2010-11/content/myefo/html/appendix_a_12.htm
The 2011 Commonwealth Budget stated that the TFYT Payment "provides financial support for the costs incurred by apprentices while undertaking their training and is expected to lead to an increase in commencements and completions."
Particulars
2011 Commonwealth Budget, Part 1: Expense Measures, Education Employment and Workplace Relations, accessed at http://www.budget.gov.au/2010-11/content/myefo/html/appendix_a_12.htm
On 12 March 2012, Deloitte Access Economics prepared a report titled 'Econometric Analysis of the Australian Apprenticeships Incentives Program (Deloitte Report) commissioned by the Department of Education, Employment and Workplace Relations, to conduct an econometric analysis of the Australian Apprenticeships Incentive Program, of which the TFYT Payment formed a part.
The Deloitte Report found that:
(a) the take-up rate by eligible Australian apprentices of the TFYT Payment was approximately 87% (p.45);
(b) none of the analysed incentives were proven to have a negative impact on commencements (p.47);
(c) it could not test the impact of the TFYT Voucher because the data was not available (p.79); and
(d) it could not test the impact of the TFYT Payment on commencements due to the lack of a control group (p.79),
(together, the Deloitte TFYT Payment Information).
On 13 May 2014, the Commonwealth Government announced in its Budget Paper that it would, inter alia, cease the TFYT Payment from 1 July 2014, and instead provide financial assistance to apprentices in skills shortage trades through a 'Trade Support Loans Programme' pursuant to which eligible apprentices could access loans up to $20,000 over four years, which they would need to repay once they reached a prescribed income threshold (TFYT Payment Reform).
Particulars
Replacement Prospectus, p 30. Budget Measures Budget Paper No. 2, 2014-15 dated 13 May 2014, pp.162, 172-173
In June 2014, the Commonwealth Government introduced the Trade Support Loans Bill 2014 (TFYT Payment Reform Bill) into Parliament in order to give legislative effect to the TFYT Payment Reform.
Particulars
On 4 June 2014, the TFYT Payment Reform Bill was introduced into and debated in the House of Representatives.
On 26 June 2014, the TFYT Payment Reform Bill was introduced into and debated in the Senate.
As at 4 June 2014, the impact of the TFYT Payment Reform Bill upon incentivising people to enrol in apprenticeships was unclear.
Particulars
(a) the term 'incentivising people' means "providing encouragement, incentives and/or benefits to people so that they are encouraged to do something"; in this case "to enrol in apprenticeships";
(b) between 2005 to 2011, the Commonwealth Government provided direct subsidies to individuals to incentivise them to enrol in apprenticeships: repeat paragraphs 48 to 59;
(c) the Deloitte Report analysed the impact of government incentives on apprenticeship enrolments, and found that it could not test the impact of the TFYT Voucher or TFYT Payment on commencements due to a lack of data and lack of a control group, respectively: repeat sub-paragraphs 61(c) and (d);
(d) based on the facts contained above, it may be inferred that as at March 2012:
(i) the impact of the TFYT Voucher and TFYT Payment on apprenticeship enrolments was unclear; and
(ii) the impact of any change to the TFYT Payment (including the TFYT Payment Reform Bill) was therefore also unclear;
(e) neither Deloitte nor any other person prepared a publicly available report providing an update or clarity on the matters referred to directly above on or before 4 June 2014;
(f) the TFYT Payment Reform represented a fundamental change in the way the Commonwealth Government was proposing to incentivise and assist new apprentices: repeat paragraph 66;
(g) it may be inferred that by making such a fundamental change to the way in which apprenticeships enrolments are incentivised (repeat paragraphs 48 to 65), that the impact of the TFYT Payment Reform Bill was unclear;
(h) as at 4 June 2014, there was minimal data available about the impact of the TFYT Payment Reform Bill, from which it may be inferred that the impact of the bill upon incentivising people to enrol in apprenticeships was unclear;
(i) Members of the House of Representatives and the Senate expressed manifold concerns about the impact of the TFYT Payment Reform Bill on incentivising individuals to undertake apprenticeships, from which it can be inferred that the impact of the TFYT Payment Reform Bill was not agreed and was unclear, including the following statements:
During the second reading debate for the TFYT Payment Reform Bill, members of the House of Representatives expressed concerns about its impact on incentivising people to enrol in apprenticeship
i. Alannah McTiernan MP stated on 23 June 2014 that, "It is quite amazing that the programme before us is being hailed as something that is going to encourage more people to enter the trades…If we look at the package in the trade support loan bills that the Abbott Government is delivering, we will see results very different from that." House of Representatives Hansard p. 6980
ii. Jill Hall MP stated on 23 June 2014 that, "There are a number of issues that I don't think are very clear at this stage: the government haven't been very clear about the financial considerations, which are a major barrier for apprentices taking up training and completing it; and the measures will have little impact on the skills shortage…Unfortunately this legislation will do very little to attract young people to undertake apprenticeships." House of Representatives Hansard p. 6978
iii. Julie Owens MP stated on 23 June 2014 that, "The bill has been referred to the State Economics Committee to examine the payment mechanisms…The level of consultation on this has been quite poor, and it shows in the poor design of the programme." House of Representatives Hansard p. 6973.
iv. Sharon Claydon MP stated on 23 June 2014 that, "With the passage of this bill, struggling apprentices on pay well below the minimum wage will be forced to swap their tool allowance, which was a grant, for a $20,000 bank loan instead. This now means that what was an optional loan available to apprentices - the new Trade Support Loan - is now the only financial support offered to apprentices. It is borrow or bust." House of Representatives Hansard p. 6952.
v. Lisa Chesters MP stated on 23 June 2014 that, "We have to look at their [the Liberal Government's] track record. We have to look at it because it speaks to why I do not believe this loan scheme will be very popular with young people…The recent budget announcements seem to be designed to make it more difficult for our young people to gain a skilled qualification." House of Representatives Hansard p. 6948-49.
vi. Adam Bandt MP stated on 23 June 2014 that, "The idea of owing Tony Abbott's government thousands of dollars in debt will just send a chill down the spine of many young people thinking of starting an apprenticeship…. This is about making life worse for many, many apprentices. This is about making life grim for young people and gutting the supports that would see apprentices commence apprenticeships in greater numbers. It is no wonder that there have been many, many submissions on behalf of apprentices and on behalf of working people saying that debt is the wrong way to go.": House of Representatives Hansard p. 6944
vii. Shayne Neumann MP stated on 23 June 2014 that, "We have been contacted by registered training organisations concerned about the impact the axing the Tools for Your Trade program will have on their apprentices and also about the substance of the bill before the chamber." House of Representatives Hansard p. 6933
viii. Justine Elliot MP stated on 23 June 2014 that, "We know that many apprentices have huge start-up and continuing costs for necessary tools and equipment but now they will be left with the debt under the Abbott government's program, rather than being provided important funds to purchase tools and get going in their chosen trade." House of Representatives Hansard p. 6928
ix. Joel Fitzgibbon MP stated on 23 June 2014 that, "They say they want to bolster the supply and completion rates in apprenticeships…They believe a loans system is a better way to go. We thought that our Tools For Your Trade system, a cash payment to kids, for the same reason was adequately doing that job. I suppose the proof will be in the pudding. We will all know in a few years' time which system worked more effectively." House of Representatives Hansard p. 6925
On 26 June 2014, the TFYT Payment Reform Bill was introduced into and debated in the Senate, during which Senators expressed concerns about its impact on incentivising people to enrol in apprenticeships, including the following:
x. Sen. Kim Carr stated on 14 July 2014 that, "This is a kick in the guts for apprentices. What the program allowed for was $5,500 to be made for apprentices for the costs of tools, books and equipment. What is replacing it is the government's initiative of debt of $20,000...Opposition senators and members have been inundated with messages from apprentices who are anxious about what these new debts mean and what they will involve for people over their working lives.": Senate Hansard p. 4765.
xi. Sen. Rhiannon Lee states on 14 July 2014 that, "Tools for Your Trade is being replaced with a loan - that is what this bill does…The government knows this will be unpopular and has to come up with a selling point, as we see so often when the government comes up with some unpopular measure. In this case, the selling point is that, if an apprentice finishes their training, they will have 20% of their loan knocked off. Why they are attaching this incentive is that - …the government knows that this scheme in itself is a huge disincentive to young people taking up apprenticeships.": Senate Hansard p. 4769.
xii. Sen. Nick Xenaphon stated on 14 July 2014 that, "I also note that the Tools for Your Trade program is having all sorts of consequences: it is retrospective in nature; it was done without warning; apprentices have already started…I am concerned that, if the government takes away funding like this, it will have a very, very negative impact.": Senate Hansard p. 4796
(j) repeat paragraphs 67 and 68.
On 1 July 2014, and at all material times thereafter, the Commonwealth Government implemented the Trade Support Loans Act 2014 (2014 Funding Act), which replaced the TFYT Payment and instead provided that apprentices in certain skills shortage trades be entitled to loans up to $20,000 over the life of their apprenticeship, comprised as follows: $8,000 in their first year, $6,000 in their second year, $4,000 in their third year and $2,000 in their fourth year of an apprenticeship (2014 Funding Initiative).
The 2014 Funding Act, 2014 Funding Initiative, and TFYT Payment Reform represented a fundamental change in the way the Commonwealth Government was proposing to incentivise and assist new apprentices, being to remove the tax-free TFYT Payment and replacing it with a new loan scheme not previously available to apprentices.
Particulars
Repeat paragraphs 48 to 65.
By reason of the matters pleaded in paragraphs 46, 62, 65, and 66, at all material times after at least 13 May 2014, it was likely, or there was a material risk that the effect of the Commonwealth Government's ceasing to fund the TFYT Payment and replacing it with the 2014 Funding Initiative would have a materially adverse effect on the funding and revenue available to the Training business (including ASG Integracom and that part of it which represented what was formerly Integracom) (TFYT Funding Change Risk Information).
Particulars
The period "at all material times after at least 13 May 2014" means between at least 13 May 2014 and the end of the Relevant Period.
'Available' means 'able to be provided'.
By reason of the matters pleaded in paragraphs 46, 61, 62, 65 and 67, as at the time the Offer Documents were issued, it was likely, or there was a material risk that, the TFYT Funding Change Risk Information would cause or result in:
(a) a material adverse effect on Ashley's revenue which was derived from a significant part of Ashley's Training business, namely ASG Integracom (including by that part of ASG Integracom representing what was formerly Integracom);
(b) a material adverse effect on Commonwealth or State funding to a significant part of Ashley's Training business, namely ASG Integracom (including by that part of ASG Integracom representing what was formerly Integracom); and
(c) forecasts of future revenue and EBITDA to be derived by a significant part of Ashley's Training business, namely ASG Integracom (including by that part of ASG Integracom representing what was formerly Integracom) to be unreliable,
(each, Integracom Funding Change Effect Information).
By reason of the matters pleaded in paragraph 45, the TFYT Funding Change Risk Information and/or the Integracom Funding Change Effect Information was:
(a) Integracom Adverse Financial Impact Information and/or Integracom Adverse Funding Impact Information; and
(b) by reason thereof (and the matters pleaded in paragraphs 45 and/or 47):
(i) Ashley Adverse Financial Impact Information; and/or
(ii) Ashley Relevant Information.
E.3 Impact of government funding reforms on the Training business
On 18 February 2015:
(a) Ashley released to the ASX its Interim Financial Statements (Appendix 4D) for the year ending 31 December 2014;
(b) Ashley released to the ASX an announcement entitled "Ashley Services reports statutory half year NPATA of $4.9 million, 11% above Prospectus and to pay 2.3 cents dividend" (18 February Announcement), which stated, inter alia, that:
(i) its pro forma EBITDA for the six-month period ending 31 December 2014 (1H FY2015) was $11.6m, representing a shortfall of $1.3m below the forecast of $12.9m contained in the Replacement Prospectus; and
(ii) this shortfall in EBITDA was solely due to reduced profit from ASG Integracom in the period prior to ownership by Ashley;
(c) published a presentation (1H FY2015 Results Presentation), which stated:
(i) Ashley's EBITDA forecast for 1H FY2015 was 10% below guidance contained in the Replacement Prospectus, caused by integration and ramp up issues related to the Acquisition (Slide 6);
(ii) Ashley's actual EBITDA for 1H FY2015 was $11.6m, compared to the pro forma forecast for that period contained in the Replacement Prospectus of $12.9m (Slide 7);
(iii) the EBITDA shortfall resulted from losses in the ASG Integracom business prior to ownership by Ashley (Slide 7);
(iv) the cause of the shortfall was that during the IPO process, there was "a change in federal government incentives allocated to students, specifically the removal of the $5,500 Tools of Trade funding, impacted enrolments" (slide 8);
(v) actual EBIT for ASG Integracom from 1 July 2014 to 21 August 2014 (i.e. prior to ownership by Ashley) was $0.1m, compared to the Replacement Prospectus forecast amount of $1.8m (Integracom EBIT Information) (Slide 16, 30); and
(vi) the revised EBITDA pro forma forecast for FY2015 was $29.3m (Slide 14, 16).
On 27 April 2015, Ashley released to the ASX an announcement titled "Market update and FY15 Earnings Guidance" (27 April Announcement) which stated that:
(a) its pro forma forecast for FY2015 EBITDA is reduced to a range of $21m to $23m, against half-year guidance of $29.3m, and the Replacement Prospectus forecast of $31m (p 1);
(b) the reduction in earnings is driven by "a significant shortfall in ASG Integracom earnings…" (p 1);
(c) the performance of the ASG Integracom business was performing below the Replacement Prospectus guidance, "primarily attributed to the termination of the $5,500 "Tools for your Trade" incentive program from 1 July 2014" (p 2);
(d) it had revised downwards ASG Integracom's expected revenue and EBITDA for the FY2015 financial results as follows (references to 'Prospectus' are to the Replacement Prospectus):
Pro forma FY2015 $m Current Forecast Prospectus Variance to Prospectus Forecast at [1H FY2015] Variance to Forecast at [1H FY2015]
ASG Integracom Revenue 11.5-12.5 22.8 10.3-11.3 17.6 5.1-6.1
ASG Integracom EBITDA 3.0-4.0 13.3 9.3-10.3 8.5 4.5-5.5
Total ASH EBITDA 21.0-23.0 31.0 8.0-10.0 29.3 6.3-8.3
[32]
Following the release of the 27 April Announcement, the price of Ashley Shares fell, from a closing price of $1.25 on 22 April 2015 (when a trading halt commenced), to a closing price of $0.56 on 28 April 2015 (being the first day after the trading halt was lifted), being a decline of 44.8% since the Ashley Shares were listed.
E.4 Information which Ashley knew or ought reasonably to have obtained
Ashley knew or ought reasonably to have obtained such part of the Integracom EBIT Information as existed at the time the Pathfinder Prospectus, Initial Prospectus, and/or Replacement Prospectus was issued by it, by no later than the time it authorised the issue of the Pathfinder Prospectus, the Initial Prospectus and/or the Replacement Prospectus respectively.
Particulars
(i) Ashley had such part of the Integracom Trading Performance Information which comprised Integracom's current trading performance, including information from the period 1 July 2014 onwards up until the date the Pathfinder Prospectus was issued, being a date on or before 28 July 2014: Paragraphs 21, 25 and 37(b)(ii) are repeated; pages 64 (Notes 1 and 2, Table 1), 65 (Note 1, Table 3) and 79 (para 3.11.3) of the Pathfinder Prospectus.
(ii) Ashley had such part of the Integracom Trading Performance Information which comprised Integracom's current trading performance including information from the period 1 July 2014 onwards up until the date of the Initial Prospectus, being 1 August 2014: Paragraphs 25 and 37(b)(ii) are repeated.
(iii) Ashley had the Integracom Trading Performance Information on or before 7 August 2014 (including information from the period from 1 July 2014 onwards): Paragraph 37(b)(ii) is repeated.
(iv) It may be inferred or implied that Ashley knew the Integracom Trading Performance Information did not contain any material changes between the dates it issued the Pathfinder Prospectus, Initial Prospectus and/or Replacement Prospectus: repeat the above particulars and paragraph 25.
(v) As at the date it issued the Pathfinder Prospectus, Ashley knew:
A) the actual EBIT for Integracom between the period 1 July 2014 until the date it issued the Pathfinder Prospectus, being a date on or before 28 July 2014: repeat particular (i) above; and
B) the actual EBIT for Integracom during the period in (A) directly above was between $0 and $100,000, and not more than $100,000.
(vi) As at the date it issued the Initial Prospectus, Ashley knew:
A) the actual EBIT for Integracom between the period 1 July 2014 until the date it issued the Initial Prospectus, being 1 August 2014: repeat particular (ii) above; and
B) the actual EBIT for Integracom during the period in (A) directly above was between $0 and $100,000, and not more than $100,000.
(vii) As at the date it issued the Replacement Prospectus, Ashley knew:
A) the actual EBIT for Integracom between the period 1 July 2014 until the date it issued the Replacement Prospectus, being 7 August 2014: repeat particular (iii) above; and
B) the actual EBIT for Integracom during the period in (A) directly above was between $0 and $100,000, and not more than $100,000.
(viii) Further, Ashley ought reasonably to have obtained the Integracom Trading Performance Information and Integracom EBIT Information, or such part of the Intergracom EBIT Information as existed at the time the Pathfinder Prospectus, Initial Prospectus and/or Initial Prospectus was issued by it, by making inquiries into the operations of Integracom, which inquiries:
• would have revealed the Integracom Trading Performance Information and Integracom EBIT Information as pleaded and particularised in this paragraph; and
• would, when combined with the familiarity it had, or ought reasonably to have had, with the TFYT Reform, TFYT Funding Change Risk Information, Integracom Funding Change Effect Information, Training Business Funding Risks, the USPA and Acquisition, and/or information obtained by its existing working relationship with Integracom pleaded in paragraphs 17 and 34 would have revealed the Integracom Trading Performance Information and Integracom EBIT Information as pleaded and particularised in this paragraph.
(ix) the Applicant alleges that such part of the Integracom EBIT Information as existed at the time the Pathfinder Prospectus existed:
(A) was knowledge held by each of Ashley's directors (which includes at least Ross Shrimpton and Marc Shrimpton), and particularised in sub-paragraphs 73(i) and (v);
(B) the time that knowledge was held by each of Ashley's directors (which includes at least Ross Shrimpton and Marc Shrimpton) is particularised in sub-paragraphs 73(i) and (v);
(C) the above knowledge was obtained by Ashley's directors (which includes at least Ross Shrimpton and Marc Shrimpton) while executing their duties as a director of Ashley: repeat paragraphs 6 to 12;
(D) the financial impact of the Acquisition on Ashley was forecast to be significant: repeat paragraphs 36 to 38, and 41 to 45;
(E) it may be inferred that such part of the Integracom EBIT Information as existed at the time the Pathfinder Prospectus existed, was highly relevant to determining the financial impact of the Acquisition on Ashley;
(F) it may be inferred from sub-paragraphs (D) and (E) above that Ashley's directors (which includes at least Ross Shrimpton and Marc Shrimpton) would, in the course of undertaking their duties as directors of Ashley, have known such part of the Integracom EBIT Information as existed at the time the Pathfinder Prospectus existed;
(G) further and alternatively, it may be inferred from sub-paragraphs (D) and (E) above that Ashley's directors (which includes at least Ross Shrimpton and Marc Shrimpton) ought to have obtained, in the course of undertaking their duties as directors of Ashley, such part of the Integracom EBIT Information as existed at the time the Pathfinder Prospectus existed; and
(H) further particulars to be provided after discovery;
(x) the Applicant alleges that such part of the Integracom EBIT Information as existed at the time the Initial Prospectus and Replacement Prospectus existed:
(A) was knowledge held by each of Ashley's Directors particularised in sub-paragraphs 73(ii), (iii), (iv), (vi), (vii);
(B) the time that knowledge was held by each of Ashley's Director's is particularised in sub-paragraphs 73(ii), (iii), (iv), (vi), (vii);
(C) the above knowledge was obtained by each of Ashley's Directors while executing their duties as a director of Ashley: repeat paragraphs 6 to 12;
(D) the financial impact of the Acquisition on Ashley was forecast to be significant: repeat paragraphs 36 to 38, and 41 to 45;
(E) it may be inferred that such part of the Integracom EBIT Information as existed at the time the Initial Prospectus and Replacement Prospectus existed, was highly relevant to determining the financial impact of the Acquisition on Ashley;
(F) it may be inferred from sub-paragraphs (D) and (E) above that Ashley's Directors would, in the course of undertaking their duties as directors of Ashley, have known such part of the Integracom EBIT Information as existed at the time the Initial Prospectus and Replacement Prospectus existed;
(G) it may also be inferred from paragraphs (D) and (E) above that Ashley's Directors ought to have obtained, in the course of undertaking their duties as directors of Ashley, such part of the Integracom EBIT Information as existed at the time the Initial Prospectus and Replacement Prospectus existed;
(H) each of Ashley's Directors signed the statement contained in paragraph 8.15 of the Initial Prospectus and Replacement Prospectus;
(I) it may be inferred by paragraphs (D), (E),(G) and (H) that Ashley's directors knew, or ought to have obtained such part of the Integracom EBIT Information as existed at the time the Initial Prospectus and Replacement Prospectus existed, respectively; and
(J) further particulars to be provided after discovery.
73A. Further or alternatively to paragraph 73, the Integracom EBIT Information or such part of the Integracom EBIT Information as existed prior to the date when the Offer closed and Ashley was admitted to the Official List (21 August 2014) was information which:
(a) comprised a new circumstance that arose after the Initial Prospectus and/or the Replacement Prospectus was lodged; and
(b) ought in the circumstances reasonably to have been obtained by Ashley prior to that date.
Particulars
(i) To the extent that Ashley did not know and could not reasonably have obtained the Integracom EBIT Information, or such part of it as existed prior to the date when the Initial Prospectus and/or the Replacement Prospectus were lodged, Ashley should reasonably have obtained it by 21 August 2014.
(ii) the persons who ought reasonably to have obtained the information referred to in this paragraph are Ashley's Directors;
(iii) the information ought reasonably to have been obtained, by each of Ashley's Directors while executing their duties as a director of Ashley: repeat paragraphs 6 to 12;
(iv) the financial impact of the Acquisition on Ashley was forecast to be significant: repeat paragraphs 36 to 38, and 41 to 45;
(v) it may be inferred that the Integracom EBIT information, or such part of the Integracom EBIT Information as existed prior to 21 August 2014, was highly relevant to determining the financial impact of the Acquisition on Ashley;
(vi) it may be inferred from sub-paragraphs (iv) and (v) above that Ashley's Directors ought reasonably to have obtained, in the course of undertaking their duties as directors of Ashley, the Integracom EBIT Information, or such part of the Integracom EBIT Information as existed prior to 21 August 2014;
(vii) Further, Ashley ought reasonably to have obtained the Integracom Trading Performance Information and Integracom EBIT Information, or such part of the Integracom EBIT Information as existed prior to 21 August 2014, by making inquiries into the operations of Integracom, which inquiries:
• would have revealed the Integracom Trading Performance Information and Integracom EBIT Information as pleaded and particularised in this paragraph; and
• would, when combined with the familiarity it had, or ought reasonably to have had, with the TFYT Reform, TFYT Funding Change Risk Information, Integracom Funding Change Effect Information, Training Business Funding Risks, the USPA and Acquisition, and/or information obtained by its existing working relationship with Integracom pleaded in paragraphs 17 and 34 would have revealed the Integracom Trading Performance Information and Integracom EBIT Information as pleaded and particularised in this paragraph; and
(viii) further particulars to be provided after discovery.
Ashley knew or ought reasonably to have obtained information about the TFYT Reform at least as early as 13 May 2014.
Particulars
The announcement of the TFYT Reform was public knowledge (and paragraph 62 is repeated).
Ashley's Directors ought reasonably to have come into possession of information about the TFYT Reform by no later than 13 May 2014, and the 2014 Funding Act and 2014 Funding Initiative by no later than 1 July 2014, due to the familiarity they ought to have had with Commonwealth and State government reforms and/or changes affecting the distribution of public funding to the VET or training sector.
By reason of the matters pleaded in paragraphs 46, 62 to 65 and 66, Ashley knew or ought reasonably to have obtained the TFYT Funding Change Risk Information at least as early as 13 May 2014, or alternatively 1 July 2014.
Particulars
Repeat particulars contained in paragraph 0 74.
By reason of the matters pleaded in paragraphs 46, 61, 62 to 65 and 67, Ashley knew or ought reasonably to have obtained the Integracom Funding Change Effect Information at the time it authorised the issue of the Pathfinder Prospectus, the Initial Prospectus and/or the Replacement Prospectus.
Particulars
The particulars to paragraph 0 74 are repeated.
Further, Ashley ought reasonably to have obtained the Integracom Funding Change Effect Information by making inquiries into the operations of Integracom before it agreed to the Acquisition, which inquiries:
• would have revealed the Integracom Funding Change Effect Information; and
• would, when combined with the familiarity it had, or ought reasonably to have had, with the TFYT Reform, TFYT Funding Change Risk Information, Training Business Funding Risks, the USPA and Acquisition, and/or information obtained by its existing working relationship with Integracom pleaded in paragraphs 17 and 34, would have revealed the Integracom Funding Change Effect Information.
The people who are alleged to hold the knowledge referred to in paragraph 76:
(a) at the time the Pathfinder Prospectus was issued, Ashley's director's (which includes at least Ross Shrimpton and Marc Shrimpton);
(b) at the time each of the Initial Prospectus and Replacement Prospectus was issued, Ashley's Directors (as defined in paragraph 12); and
(c) the knowledge of each of Ashley's directors referred to above was obtained by each of them while executing their duties as a director of Ashley: repeat paragraphs 6 to 12.
F. PROSPECTUS CONTRAVENTIONS
F.1 Introduction
The Replacement Prospectus was:
(a) an offer of securities within the meaning of s 706 of the CA;
(b) a prospectus within the meaning of s 710 of the CA;and
(c) a disclosure document within the meaning of s 728 of the CA.
Ashley was a person making an offer of securities under the Replacement Prospectus (namely the Offer), within the meaning of s 728 and s 729(1) (Table, Item 1) of the CA.
F.2 Misleading Statement in the Replacement Prospectus
Ashley did not have reasonable grounds for making the Prospectus Forecasts, within the meaning of section 728(2) of the CA.
Particulars
Paragraphs 73 to 76 are repeated.
Further to paragraphs 73 to 76, the absence of reasonable grounds can be inferred from the terms of the 18 February Announcement and 27 April Announcement. If Ashley's pro forma forecasts contained in the Replacement Prospectus were reasonable, then the extent of the EBITDA shortfalls recorded in each of those announcements would not have occurred.
Paragraphs 70 and 71 are repeated.
By reason of the matters pleaded in paragraphs 79, each of the Prospectus Forecasts were misleading or deceptive.
By reason of the matters pleaded in paragraph 80, each of the Prospectus Forecasts were misleading or deceptive statements, within the meaning of s 728(1)(a)(i) of the CA (Prospectus Misleading Statements).
F.3 Omissions from the Replacement Prospectus
By reason of the matters pleaded in paragraphs 73 to 76, s 710 of the CA required the Replacement Prospectus to contain:
(a) such part of the Integracom EBIT Information as existed at the time the Replacement Prospectus was issued;
(b) the TFYT Funding Change Risk Information; and
(c) the Integracom Funding Change Effect Information.
The Replacement Prospectus did not contain any statement disclosing:
(a) such part of the Integracom EBIT Information as existed at the time the Replacement Prospectus was issued;
(b) the TFYT Funding Change Risk Information; or
(c) the Integracom Funding Change Effect Information.
By reason of the matters pleaded in paragraphs 82 to 83, the Replacement Prospectus contained an omission of material required by s 710 of the CA, within the meaning of s 728(1)(b) (or, by reason of the matter pleaded in paragraph 73A, s728(1)(c)) of the CA (Prospectus Omissions).
F.4 The Prospectus Contraventions
By reason of each of the Prospectus Misleading Statements and Prospectus Omissions, the Offer under the Replacement Prospectus contravened s 728(1) of the CA (each a Prospectus Contravention).
G. OTHER CONTRAVENTIONS
G.1 Misleading or deceptive conduct
The making of the Prospectus Forecasts was conduct engaged in by Ashley:
(a) in relation to a financial product within the meaning of subsections 1041H of the CA;
(b) in trade or commerce, in relation to financial services within the meaning of section 12DA(1) of the ASIC Act; and/or
(c) in trade or commerce, within the meaning of section 4 of the ACL.
By reason of the matters pleaded in paragraph 79, the Prospectus Forecasts were misleading or deceptive, or likely to mislead or deceive, in contravention of:
(a) section 1041H(1) of the CA;
(b) section 12DA(1) of the ASIC Act; and/or
(c) section 18 of the ACL,
(a contravention of any of those sections being a Misleading Conduct Contravention).
Further, or alternatively, by the Prospectus Forecasts, Ashley represented to the market of potential investors in Ashley that:
(a) it had reasonable grounds for the Prospectus Forecasts; and/or
(b) it was able, from the information available to it, to provide a reasonably reliable guide as to the future financial performance in FY2015 of Ashley and/or Ashley's Training business (on a pro forma consolidated basis, which included Integracom),
(Prospectus Forecast Basis Representations);
Particulars
The Prospectus Forecast Basis Representations were implied from the fact that the Prospectus Forecasts (being express statements) were made in the context of the Prospectus, and the absence of any disclosure to the contrary.
The Prospectus Representations were representations as to a future matter, and s 12BB of the ASIC Act, s 769C of the CA and/or s 4 of the ACL are relied upon.
The making of the Prospectus Forecast Basis Representations was conduct engaged in by Ashley:
(a) in relation to a financial product within the meaning of subsections 1041H of the CA;
(b) in trade or commerce, in relation to financial services within the meaning of section 12DA(1) of the ASIC Act; and/or
(c) in trade or commerce, within the meaning of section 4 of the ACL.
By reason of the matters pleaded in paragraphs 79 to 81, as at the time the Offer Documents were issued, Ashley did not have reasonable grounds for the Prospectus Forecast Basis Representations.
Particulars
The absence of reasonable grounds can also be inferred from the terms of the 18 February Announcement and the 27 April Announcement.
Paragraphs 70 and 71 are repeated.
Sections 12BB(2) of the ASIC Act and/or s 4(2) of the ACL are relied upon.
By reason of the matters pleaded in paragraph 90, Ashley's conduct in making, and omitting to correct the Prospectus Forecast Basis Representations was misleading or deceptive, or likely to mislead or deceive, and a Misleading Conduct Contravention.
G.2 Continuous Disclosure Contraventions
By reason of the matters pleaded in paragraphs 73 to 76, as at 21 August 2014, each of:
(a) the Integracom EBIT Information;
(b) the TFYT Funding Change Risk Information; and/or
(c) the Integracom Funding Change Effect Information,
was information of which Ashley was aware within the meaning of ASX Listing Rule 3.1 (having regard to the definitions in ASX Listing Rule 19.12).
Particulars
The persons who are claimed to hold the knowledge on behalf of Ashley are Ashley's Directors, in respect of which paragraphs 6 to 12 are repeated.
As at 21 August 2014, each of the Integracom EBIT Information, the TFYT Funding Change Risk Information and/or the Integracom Funding Change Effect Information, was not generally available within the meaning of s 676 of the CA.
As at and from 21 August 2014, each of the Integracom EBIT Information, the TFYT Funding Change Risk Information and/or the Integracom Funding Change Effect Information was information that a reasonable person would expect to have a material effect on the price or value of Ashley Shares within the meaning of ASX Listing Rule 3.1 and s 674(2)(c)(ii) of the CA.
By reason of the matters pleaded in paragraphs 5(e) and 92 to 94, Ashley became obliged to tell the ASX each of the Integracom EBIT Information, the TFYT Funding Change Risk Information and/or the Integracom Funding Change Effect Information on 21 August 2014.
Ashley did not inform the ASX of each of the Integracom EBIT Information, the TFYT Funding Change Risk Information and/or the Integracom Funding Change Effect Information on 21 August 2014.
By reason of the matters pleaded in paragraphs 95 to 96, Ashley contravened ASX Listing Rule 3.1 and s 674(2) of the CA (Continuous Disclosure Contravention).
H. CONTRAVENING CONDUCT CAUSED LOSS
H.1 No transaction case in respect of the Prospectus Contraventions
Had the Replacement Prospectus:
(a) not contained the Prospectus Misleading Statements (or any of them); and/or
(b) not omitted the material the subject of the Prospectus Omissions,
the transactions contemplated by the Prospectus would not have occurred in the way in which they occurred, or at all.
Particulars
i) The forecast financial information would not have been presented in a form which attributed to Ashley the value referred to in paragraph 38, but a value which was significantly lower, or nil (particulars of which will be provided when the Applicant serves opinion evidence).
ii) Grant Thornton would not have formed the Grant Thornton Opinion and/or would not have consented to the inclusion of the IAR in the Replacement Prospectus.
iii) The Replacement Prospectus would not have been lodged with ASIC and/or a stop order would have been made in respect of it pursuant to s 739 of the CA, ASX would have not granted Ashley's application for admission to the Official List for failure to comply with, inter alia, Condition 3, and by reason of which the Offer would be withdrawn and all application monies received refunded (Replacement Prospectus, p.106).
iv) Alternatively, the price for Ashley Shares would not have been the Offer Price, which was partially derived from the value attributed to ASG Integracom in paragraph 38, but a lower price (particulars of which will be provided with the Applicant's opinion evidence in chief).
v) The 'transactions contemplated by the Prospectus' means the transactions contemplated by the Replacement Prospectus, being the Offer (pleaded in paragraph 27(a)), the admissions of Ashley to the Official List (pleaded in paragraph 27(b)), and the unconditional acquisition of Integracom (pleaded in paragraphs 29(a) and 30).
H.2 Market-based causation
The Applicant and Group Members acquired Ashley Shares in a market of investors or potential investors in Ashley Shares:
(a) regulated:
(i) prior to 21 August 2014, by, inter alia, Chapter 6D of the CA (in which all investors or potential investors in Ashley Shares who were involved in setting the price pursuant to which Ashley Shares would be issued had the information contained in the Pathfinder Prospectus); AND
(ii) after 21 August 2014, by, inter alia, s 674(2) of the CA and ASX Listing Rule 3.1;
(b) where the price or value of Ashley Shares would reasonably be expected to have been informed or affected by:
(i) prior to 21 August 2014, information disclosed in the Pathfinder Prospectus and/or the Replacement Prospectus; AND
(ii) after 21 August 2014, information disclosed in accordance with sections 674(2) of the CA and ASX Listing Rule 3.1; and
(c) where both prior to and after 21 August 2014:
(i) material information had not been disclosed, which a reasonable person would expect, had it been disclosed, would have had a material adverse effect on the price or value of Ashley Shares (namely the information the subject of the Prospectus Omissions and the Continuous Disclosure Contraventions); and
(ii) misleading or deceptive statements had been made (namely the Prospectus Misleading Statements and the Prospectus Forecast Basis Representations) that a reasonable person would expect to have a material effect on the price or value of Ashley Shares, in that if they had not been made no investors or potential investors in Ashley Shares would have been in a position to read or rely upon them.
In the Relevant Period, the Prospectus Contraventions and/or the Misleading Conduct Contraventions and/or the Continuous Disclosure Contraventions (and each of them) (Market Contraventions) caused or materially contributed to the market price of Ashley Shares to be substantially greater than:
(a) their true value; and/or
(b) the market price that would have prevailed but for the Market Contraventions,
from the respective dates that those Market Contraventions commenced, as pleaded in this Statement of Claim.
Particulars
The extent to which the Market Contraventions caused the market price for Ashley Shares to be substantially greater than their true value and/or the market price that would otherwise had prevailed (that is, inflated) during the Relevant Period is a matter for evidence, particulars of which will be served immediately following the Applicant filing opinion evidence.
The decline in the price of Ashley Shares pleaded in paragraph 72 above:
(a) was caused or materially contributed to by:
(i) the market's reaction to the information released to the ASX in the 27 April Announcement; and
(ii) the Prospectus Contraventions and/or the Misleading Conduct Contraventions and/or the Continuous Disclosure Contraventions; and
(b) would, to the extent it removed inflation from the price of Ashley Shares, have occurred, or substantially occurred, earlier if:
(i) Ashley had disclosed to the market the information the subject of the Prospectus Omissions and the Continuous Disclosure Contraventions; and/or
(ii) Ashley had not made the Prospectus Misleading Statements and/or engaged in the conduct the subject of the Misleading Conduct Contraventions.
Particulars
The extent to which inflation was removed from the price of Ashley Shares, and would have been removed at earlier points in time during the Relevant Period is a matter for evidence, particulars of which will be served immediately following the Applicant filing opinion evidence.
H.3 Reliance
Further, the Applicant and some Group Members:
(a) would not have acquired and/or retained Ashley Shares pursuant to the Offer, or at all, if they had known the following information:
(i) the Integracom EBIT Information, or such part of the Integracom EBIT Information as existed at the time the Replacement Prospectus was issued;
(ii) TFYT Funding Change Risk Information;
(iii) the Integracom Funding Change Effect Information; and/or
the non-disclosure of which for the reasons pleaded in paragraphs 77 to 85 and/or 92 to 97 constituted contravening conduct.
(b) relied directly on some or all of the following statement and/or representations:
(i) the Prospectus Forecasts;
(ii) the Prospectus Forecast Basis Representations;
which for the reasons pleaded in paragraphs 77 to 85 and/or 86 to 91 constituted contravening conduct.
Particulars
The Applicant would not have acquired an interest in Ashley Shares had he known any or all of the information referred to in sub-paragraph (a)(ii) to (iii) and he relied upon each of the representations and statements referred to in sub-paragraph (b).
The identities of all those Group Members which or who would not have acquired an interest in Ashley Shares had they known of any or all of the information referred to in sub-paragraph (a) and/or which or who relied directly on any or all of the representations and statements referred to in sub-paragraph (b) are not known with the current state of the Applicant's knowledge and cannot be ascertained unless and until those advising the Applicant take detailed instructions from all Group Members on individual issues relevant to the determination of those individual Group Member's claims; those instructions will be obtained (and particulars of the identity of those Group Members will be provided) following opt out, the determination of the Applicant's claim and identified common issues at an initial trial and if and when it is necessary for a determination to be made of the individual claims of those Group Members.
H.3 Loss or damage suffered by the Applicant and Group Members
By reason of the matters pleaded in paragraphs 98 and/or 99 to 101 and/or 102, the Applicant and the Group Members have suffered loss and damage by and resulting from the Market Contraventions.
Particulars
The loss suffered by the Applicant will be calculated by reference to:
(i) the difference between the price at which Ashley Shares were acquired by the Applicant during the Relevant Period and the true value of that interest; or
(ii) the difference between the price at which the Applicant acquired an interest in Ashely Securities and the amount left in hand.
Further particulars in relation to the Applicant's losses will be provided after the service of opinion evidence in chief. The Applicant did not acquire Ashley Shares on-market, and makes no individual claim in respect of on-market purchases.
Particulars of the losses of Group Members are not known with the current state of the Applicant's knowledge and cannot be ascertained unless and until those advising the Applicant take detailed instructions from all Group Members on individual issues relevant to the determination of those individual Group Member's claims; those instructions will be obtained (and particulars of the losses of those Group Members will be provided) following opt out, the determination of the Applicant's claim and identified common issues at an initial trial and if and when it is necessary for a determination to be made of the individual claims of those Group Members. Some Group Members did acquire Ashley Shares on-market (in addition to the shares they acquired pursuant to the Offer), and those Group Members do make a claim in respect of such on-market purchases.
Further, or alternatively, to paragraph 103, by reason of the matters pleaded in paragraph 102, the Applicant and some Group Members have suffered loss or damage.
Particulars
The particulars to paragraph 103 are repeated.
This pleading was prepared by M A Cowden of counsel and settled by W.A.D. Edwards of counsel and M B J Lee S Habib of senior counsel.
SCHEDULE OF DEFINED TERMS
A
ACL 5
Acquisition 8
Appendix 1A 11
Apprenticeship Wage Top Up 22
ASG Integracom 8
Ashley Adverse Financial Impact Information 20
Ashley Adverse Funding Impact Information 21
Ashley Relevant Information 20
Ashley Shares 3
Ashley's Directors 7
ASIC 10
ASIC Act 4
ASX 5
ASX Listing Rules 5
[36]
C
CA 4
Commonwealth Trade Learning Scholarship 22
Continuous Disclosure Contravention 42
Crean 6
[37]
D
Deloitte Report 24
Deloitte TFYT Payment Information 25
DEWR Skills Shortage List 22
[38]
G
Grant Thornton 17
Grant Thornton Opinion 18
Group Members 4
[39]
I
IAR 17
Information Form 11
Initial Prospectus 10
Integracom 7
Integracom Adverse Financial Impact Information 20
Integracom Adverse Funding Impact Information 21
Integracom EBIT Information 31
Integracom Funding Change Effect Information 29
Integracom Trading Performance Information), 15
[40]
M
Marc Shrimpton 6
Market Contraventions 44
Misleading Conduct Contravention 40
[41]
O
Offer 12
Offer Documents 18
Offer Price 12
Official List 5
R
Relevant Period 4
Replacement Prospectus 10
Ross Shrimpton 5
[44]
T
TFYT Funding Change Risk Information 29
TFYT Impact Prospectus Statement 17
TFYT Payment 23
TFYT Payment Reform 25
TFYT Payment Reform Bill 25
TFYT Voucher 22
Training business 7
Training Business Funding Risks 21
Turner 6
[45]
U
USPA 8
Certificate of lawyer
I Bill Petrovski, certify to the Court that, in relation to the statement of claim filed on behalf of the Applicant, the factual and legal material available to me at present provides a proper basis for each allegation in the pleading.
Date: 30 November 2016 22 March 2017 15 December 2017
Signed by Bill Petrovski
Lawyer for the Applicant
[46]
WIGNEY J:
1 The applicant, Mr Richard John Findlay Bradgate, as trustee of the Bradgate Superannuation Fund, has commenced representative proceedings against Ashley Services Group Limited. In broad terms, Mr Bradgate claims that he, and the group members on whose behalf the proceedings have been commenced, suffered loss and damage as a result of having acquiring shares in Ashley in an initial public offering of Ashley's shares on the Australian Stock Exchange. Mr Bradgate contends that the prospectus lodged by Ashley contained representations which were misleading or deceptive and thereby contravened, inter alia, ss 728(1) and 1041H of the Corporations Act 2001 (Cth). He also contends that Ashley failed to comply with its continuous disclosure obligations and thereby contravened s 674(2) of the Corporations Act. Following the commencement of the proceedings, Ashely filed cross-claims against Holmes Management Group Pty Ltd, Carl Holmes and Marie Holmes (together, Holmes), Deloitte Touche Tohmatsu and Deloitte Corporate Finance Pty Ltd (together, Deloitte), and Grant Thornton Corporate Finance Pty Ltd. Grant Thornton in turn filed a cross-claim against Ashely.
2 While Mr Bradgate commenced the proceedings in November 2016, they are still at a fairly early stage. That is in part due to the complexity of the proceedings, the involvement of multiple parties, and the time that it has taken the parties to finalise the pleadings.
3 Despite the fact that the proceedings are at a relatively early stage, the parties have, quite sensibly, agreed to an early mediation. That mediation is to take place no later than 13 July 2018. Mr Bradgate and Ashley also agreed that certain orders should be made in aid of the early mediation. The general effect of those orders was to: first, "open the class" by amending the definition of the group members in the originating application and statement of claim to, inter alia, remove the requirement that group members must have entered into a litigation funding agreement with IMF Bentham Limited; second, provide for the issuing of notices to group members which, amongst other things, invite group members to either opt out of the proceedings, register their interest in participating in any settlement of the proceedings, or do nothing; and third, effectively "close the class", so that only those group members who had registered their interest and had not opted out of the proceeding would be entitled to seek or receive any benefit or distribution from the settlement. The orders also provided for limited discovery for the purpose of the mediation.
4 Unfortunately, however, Mr Bradgate and Ashely were unable to agree on the terms of the orders and the proposed notices. Even more unfortunately, the parties continued to squabble about the categories of documents that should be discovered for the purposes of the early mediation.
5 Mr Bradgate, Ashley, Holmes and Deloitte all filed interlocutory applications. The main differences between the rival orders sought by Mr Bradgate and Ashley related to the proposed amendments to the group member definition, the scope of the class closure orders and the context and timing of the proposed notices. There were also some pedantic disputes that do not warrant further mention. Mr Bradgate also took issue with the description of some of the categories of documents to be discovered by Deloitte. The orders sought by Holmes Management and Deloitte related only to discovery.
6 The duelling interlocutory applications were heard on 8 December 2017. Fortunately, either before or during that hearing the parties resolved by agreement many of the issues between them in relation to the interlocutory orders. Ultimately only two substantive issues needed to be determined. The first concerned the scope of the proposed class closure order. The second concerned an issue between Mr Bradgate and Deloitte in relation to the categories of documents that were required to be discovered by Deloitte.
7 At the conclusion of the hearing on 8 December 2017, the parties were advised of the Court's findings in respect of the class closure and discovery issues. Orders reflecting those outcomes were subsequently sent to the Court and made in chambers on 13 December 2017. The discovery issue was resolved in favour of Deloitte. Neither Mr Bradgate nor Deloitte suggested that it was necessary to provide reasons in relation to the resolution of the discovery issue. The reasons were made fairly apparent in the course of the hearing.
8 The class closure issue was resolved in favour of the orders proposed by Mr Bradgate. These are the reasons for making the class closure orders proposed by Mr Bradgate, as opposed to those proposed by Ashley.
[47]
The rival class closure orders and submissions
9 The issue that divided Mr Bradgate and Ashely in relation to the class closure order was, in simple terms, whether the class should be closed for the purposes of the proposed mediation only, or closed for the purposes of any settlement of the proceedings at any time.
10 The class closure orders sought by Mr Bradgate were in the following terms:
19. Pursuant to section 33ZF of the FCAA, and subject to any further order of the Court, any Other Group Member who by the Deadline does not register or opt out of the proceedings in accordance with the manner provided for in these Orders (Unregistered Group Member):
a. will remain a group member for all purposes of this proceeding; and
b. shall not, without leave of the Court, be permitted to seek any benefit pursuant to any in-principle settlement (subject to the approval of the Court) of this proceeding reached at the mediation scheduled to commence prior to 22 June 2018, or within 28 days after the first day of that mediation.
20. Nothing in Order 19 precludes any Unregistered Group Member from having their claims considered at any mediation or settlement that takes place at some future time, if no in-principle settlement of this proceeding is reached at the mediation scheduled to commence prior to 22 June 2018, or within 28 days after the first day of that mediation.
(Emphasis added.)
11 The class closure orders sought by Ashely were in the following terms.
19. Pursuant to section 33ZF of the FCAA, and subject to any further order of the Court, any Other Group Member who by the Deadline does not register or opt out of the proceedings in accordance with the manner provided for in these Orders will:
(a) remain a group member for all purposes of this proceeding, including for the purpose of being bound by any judgment in this proceeding and being entitled to participate in any award of damages by the Court if this proceeding does not settle; but
(b) not be entitled to receive a distribution from any settlement of this proceeding
(Emphasis added)
12 It can be seen that the general effect of both versions of the proposed orders is to provide that group members who do not register remain group members, but cannot without leave or further order seek or obtain any benefit from the settlement. The difference is that that Mr Bradgate's proposed orders only preclude unregistered group members from seeking any benefit from any settlement reached at the mediation that is to take place before 22 June 2017 (subsequently changed to 13 July 2017). Ashley's orders preclude unregistered group members from obtaining any benefit from any settlement reached at any time.
13 Mr Bradgate submitted that there was no good reason to "shut out" group members who do not register at this early stage, other than if settlement is reached at, or shortly after, the mediation. Mr Bradgate pointed out that, if the early mediation does not produce a settlement, there will be a considerable period of time before the initial trial, during which evidence will be exchanged and the relative risks and prospects of the case will be further analysed. It was common ground that the class cannot, or at least should not, be closed in such a way that unregistered group members could not share in any judgement. In Mr Bradgate's submission, however, there was no persuasive reason why group members who do not register at this early stage should not be permitted to participate in a settlement which might be reached on the eve of the trial or, indeed, after the trial but before judgment.
14 Mr Bradgate also contended that, if a second mediation takes place at some time in the future, or if the parties otherwise continue to attempt to settle the proceedings, new notices could readily issue, and new class closure orders could be made, without any undue delay or cost. In relation to that submission, Mr Bradgate relied on affidavit evidence from his solicitor, Mr Blagoj Petrovski, the effect of which was that he estimated that the costs of any further notification process, including obtaining Court approval of the notice, and the making of further class closure orders, would be approximately $12,000. Mr Petrovski's affidavit evidence was that any further notification process would also not give rise to any material delay, as it could be carried out within the usual two month lead up period to any mediation in a case such as the present.
15 Mr Bradgate submitted that previous cases in which class closure orders have been made in terms similar to the orders sought by Ashely were of limited assistance because the orders in those cases were made by consent, or were unopposed, or were made in different circumstances, in particular as regards timing.
16 Ashley submitted that any decision by a group member not to register at this stage can be, and should assumed to be, an informed choice based on the notice that will be sent to all group members. In Ashley's submission, the continuation of the class closure orders to include all or any future mediations and settlement discussions would be conducive to the efficient and expeditious conduct of the proceeding. It contended, in that regard, that if the class closure orders operated in respect of any settlement, and the case does not settle at the mediation, the parties could easily and quickly re-engage in subsequent settlement discussions without having to first negotiate and agree on a further process for notification and class closure, and without having to incur the cost of approaching the Court for further notice approval and class closure orders.
17 Ashley also submitted that class closure orders in the terms proposed by it were consistent with "established practice" and that similar orders had been "evaluated and approved" by the Full Court in Melbourne City Investments Pty Limited v Treasury Wine Estates Ltd [2017] FCAFC 98.
18 Finally, Ashely submitted the class closure orders sought by it would not "shut out" or preclude group members for all time because the orders would only operate until further order of the Court. In that regard, Ashley contended that if circumstances changed, it would be open to any unregistered group member to apply for a variation or discharge of the class closure orders, or to seek the Court's leave to participate in the settlement notwithstanding the terms of the orders.
19 Ashely relied on affidavit evidence from its solicitor, Mr Jason Betts. Mr Betts' evidence established that Mr Bradgate's litigation funder released an announcement to the Australian Stock Exchange in relation to the funding of claims by certain shareholders against Ashley as early as August 2015. Within a few months of that announcement, Mr Bradgate's solicitors met with Ashley's solicitors to discuss the potential resolution of the threatened claim. Without prejudice discussions between the solicitors continued over six month period from December 2015 to June 2016. It was Ashley's submission that in those circumstances it could not be said that the proceedings were at an early stage.
20 Mr Betts also expressed the view, based on his experience, that if, by reason of the limited nature of the orders sought by Bradgate, it was necessary for the parties seek further class closure orders and issue further notices, that process would "unnecessarily increase the costs and incurred by the parties" and "create delay". Mr Betts did not provide an estimate of the additional costs. He suggested, however, that the delay could be in the order of 2 to 3 months. Beyond that, much of Mr Betts' affidavit evidence really comprised argument or submission, argument albeit based on his considerable experience in the conduct of representative proceedings.
[48]
Principles
21 It was common ground that the Court has the power to make class closure orders in aid of settlement. The Court's power in that regard lies in s 33ZF of the Federal Court of Australia Act 1976 (Cth), which provides that in a representative proceeding the Court may make "any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding". The issue between Mr Bradgate and Ashley concerned the proper exercise of the Court's discretion.
22 The exercise of the Court's discretion to make a class closure order pursuant to s 33ZF was recently considered by the Full Court in Treasury Wine. In that case, the parties had agreed that the Court should make a class closure order for the purposes of settlement, together with an order that precluded group members who failed to register from sharing in the proceeds of any settlement. It should be noted, in that context, that the trial of the case was imminent. The primary judge had, however, refused to make an order the effect of which would be to close the class for all purposes, including for the purpose of establishing entitlement to share in the fruits of any judgment given by the Court after a contested trial.
23 The Full Court refused an application for leave to appeal. The Full Court's reasons (at [72]-[80]) neatly encapsulate the relevant principles.
The Commonwealth Parliament, in implementing a core recommendation of the Australian Law Reform Commission in its report Grouped Proceedings in the Federal Court, Report No 46 (Canberra, 1988) at [127], expressed a legislative intention to adopt an opt out rather than an opt in procedure: Second Reading Speech, Federal Court of Australia Amendment Bill 1991 (Cth), House of Representatives Parliamentary Debates, Hansard, 14 November 1991 p 3,175. It must be accepted that the requirement for class members to take active steps to "register" in order to share in a settlement of a class action undercuts to some extent the opt out rationale underpinning the Part IVA regime. In Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 at [40] (Gaudron, Gummow and Hayne JJ) their Honours said:
Group members, however, need take no positive step in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring.
Class proceedings are intended to require little or no active involvement by class members and class members participate principally for the limited purpose of taking the benefit or suffering the burden of the findings made on the common questions: P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176 at [16] (P Dawson No 2) (Finkelstein J). As J Forrest J said in Thomas v Powercor Australia Ltd (Ruling No 1) [2010] VSC 489 (Thomas v Powercor No 1) at [30], "one of the consequences of the opt out model, as was clearly intended by the legislature, is the ability of group members to "sit back" and watch the proceeding unfold". There must be a good reason to exercise the discretion to make a class closure order which may operate to deny the benefits of a settlement to class members who do not opt out and who do not take the active step of registering: P Dawson No 2 at [17].
Having said this, if a class closure order operates to facilitate the desirable end of settlement, it may be reasonably adapted to the purpose of seeking or obtaining justice in the proceeding and therefore appropriate under s 33ZF of the Act. The courts have accepted on numerous occasions that, in order to facilitate settlement, it is appropriate to make orders to require class members to come forward and register in order to indicate a willingness to participate in a future settlement, and to make orders that class members be bound into the settlement but barred from sharing in its proceeds unless they register: see for example, Matthews v SPI Electricity & SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 13) (2013) 39 VR 255; [2013] VSC 17 at [22]-[80] (Matthews v SPI No 13) (J Forrest J) and the authorities there referred to; Farey v National Australia Bank [2014] FCA 1242 at [11]-[16] (Jacobson J); Inabu Pty Ltd v Leighton Holdings Pty Ltd [2014] FCA 622 at [17]-[22] (Jacobson J); Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194 at [67]-[68] (Beach J). An important aspect of the utility of a class proceeding is that they may achieve finality not only for class members but also for the respondent.
The rationale behind such class closure orders is that a requirement for class members to register their claims will facilitate settlement, because it allows both sides to have a better understanding of the total quantum of class members' claims, permits the settlement amount to be capped by reference to the number of class members, and assists in achieving finality (to the extent the Part IVA regime permits): see Grave D, Adams K and Betts J, Class Actions in Australia (2nd ed, Lawbook Co, 2012) at [14.410]. A class closure order that precludes class members, who neither opt out nor register, from sharing in a subsequent settlement may facilitate settlement, and therefore be reasonably adapted to the purpose of seeking or obtaining justice in the proceeding.
However, we share the views expressed by the primary judge in relation to a class closure order that also precludes class members from sharing in a subsequent judgment. In our view the Court should be cautious before making a class closure order that, in the event settlement is not achieved, operates to lock class members out of their entitlement to make a claim and share in a judgment. That is, the facilitation of settlement is a good reason for a class closure order but, if settlement is not achieved, an order to shut out class members who do not respond to an arbitrary deadline is not.
Caution should also be exercised in relation to the stage at which a class closure order is made. In our view, the Court should usually not exercise the discretion to make a class closure order based merely on a respondent's assertion that it is unwilling to discuss settlement unless such an order is made. It is a common if not inevitable feature of opt out class actions that the defendant will be faced with uncertainty regarding the quantum of class members' claims: P Dawson No 2 at [31]; Thomas v Powercor No 1 at [37]-[38].
We respectfully agree with the approach taken by Bromberg J in Winterford v Pfizer Pty Ltd [2012] FCA 1199 at [9] where his Honour declined to make a class closure order in circumstances where the pleadings were not closed, common questions had not been settled, opt out notices had not been sent out, no settlement discussions had been undertaken, and no settlement discussions were proposed unless the Court made a class closure order. As his Honour said, to make a class closure order at that stage "would turn on its head the very nature of the opt-out model chosen by the legislature." See also Camping Warehouse Australia Pty Ltd (formerly Mountain Buggy Australia Pty Ltd) v Downer EDI Ltd [2015] VSC 122 at [16] (Sifris J).
Whether it is appropriate to order class closure is a question of balance and judicial intuition. The Court must take into account the interests of the class as a whole in requiring class members to take steps to facilitate settlement, and consider the surrounding circumstances including the point the case has reached, the attitude of the parties, and the complexity and likely duration of the case: see Matthews v SPI No 13 at [75]-[79]. This will often involve striking a balance between the conflicting interests of class members.
There was no merit in MCI's written submission (since withdrawn) that the class closure order in the present case was made at too early a stage. There were numerous factors relevant to the primary judge's exercise of discretion which militated in favour of making the class closure order. Amongst other things, the order was made in circumstances where the trial of the case was imminent and the parties had agreed to mediate within three months, the proceeding was at a stage where the parties were in a position to realistically assess the prospects of victory or defeat, the lawyers for the applicant were experienced in class action litigation and able to assess whether class closure was in the interests of class members, and both parties considered that a class closure order should be made in order to facilitate settlement.
[49]
The appropriate class closure orders
24 Mr Bradgate and Ashley agreed that, in aid of the proposed mediation, which is to occur in the first half of 2018, some form of limited class closure was appropriate or necessary for the purposes of s 33ZF of the Act. The question, in a sense, was whether it was appropriate for the order to be limited to closing the class for the purposes of that mediation, or whether it was appropriate for the order to extend to closing the class for the purposes of any settlement reached at any time and in any circumstances. This was, to adopt the words of the Full Court in Treasury Wine (at [79]) a question of "balance and judicial intuition".
25 In all the circumstances, the balance fell in favour of the orders proposed by Mr Bradgate. The following considerations were relevant and persuasive in that regard.
26 First, despite the relatively long gestation period before the commencement of the proceedings, and despite the pre-commencement settlement discussions, the proceedings are nevertheless still at an early stage. While the pleadings have closed, no evidence has been filed. Only limited discovery has or will have been provided for the purpose of and prior to the mediation. As Mr Bradgate contended, it is likely that if the mediation in the first half of 2018 does not produce a settlement, there will be a considerable period of time before the initial trial. During that period the parties will be required to file evidence and further and more extensive discovery will be provided. Given the complexity of some of the factual issues in the proceedings, the evidence is likely to be extensive and could include expert opinion evidence. As a result of the exchange of evidence and further discovery, the relative risks and prospects of the case, from each party's perspective, and from the perspective of the group members as a whole, will most likely change or become clearer. Group members who, for whatever reasons, may not have registered by early 2018, may in those circumstances wish to change their mind about participating in any mediation or settlement negotiations that occur closer to the trial, or indeed after trial and before judgment. In fact, it might even be the case that group members who did register in 2018 or earlier might change their minds in light of developments.
27 As the Full Court pointed out in Treasury Wine, albeit in slightly different circumstances, caution should be exercised in relation to the stage at which a class closure order is made. Caution should equally be exercised in relation to the particular form and scope of the class closure order having regard to the stage at which the order is to be made. In the particular circumstances of this case, it is neither necessary nor appropriate, in order to facilitate the proposed mediation and any settlement that may be reached at it, to exclude group members who may not have registered at this early stage from participating in any settlement that does not occur at the first mediation, but occurs in quite different circumstances, potentially some years from now.
28 Second, at this early stage, and assuming that the proceedings do not settle at the mediation that is to take place on or before 13 July 2018, Ashley's submissions based on the prospect of a further mediation, or further settlement negotiations, at some time in the future were somewhat speculative. Experience does perhaps show that complex commercial proceedings, particularly representative proceedings, which do not settle at an initial mediation, can and often do still settle at a later mediation, or during settlement negotiations that take place on the eve of the trial. In this case, however, given that the first mediation is to occur at such an early stage, if the case does not settle at or as a result of the first mediation, any subsequent mediation or settlement negotiations are likely to occur much closer to the trial, which as already indicated, may well be some considerable time in the future. If that does occur, it would be open to the parties to approach the Court for further registration and class closure orders in aid of the further mediation or settlement negotiations. The appropriateness of the orders sought at that stage would then no doubt be considered having regard to the facts and circumstances at that time. The more limited orders sought by Mr Bradgate do not preclude any further mediation, or further settlement negotiations, in the future if the case does not settle at the first mediation.
29 Third, and related to the second point, if as events transpire, there is a further mediation, or further settlement negotiations as some stage closer to the trial, it is doubtful that the process of approaching the Court for further class closure orders, and issuing further notices, will be as complex, problematic or costly as contended by Ashley. The templates, systems and processes that the parties have established to formulate and issue the notices that are to be sent out in accordance with the orders made on this occasion could no doubt be utilised should it be necessary to issue new notices in respect of a further registration process at some stage in the future. While the views and estimates that Mr Petrovski and Mr Betts have given in respect of the likely costs of issuing further notices sometime in the future differ somewhat, the costs that are likely to be incurred would, on just about any view, be trivial when considered in the context of the proceedings as a whole. And if the parties agree, at some point in the future in the context of a further mediation, or further settlement discussions, on an appropriate form of class closure orders, it is unlikely that the process of approaching the Court to make those orders would be costly or productive of delay. The cost and delay resulting from the present application was mainly a product of the fact that the parties did not agree on the appropriate form of orders.
30 It should also perhaps be noted, in this context, that Ashley's submission that any further notices in respect of a subsequent mediation would be confusing is somewhat speculative. The Court would, in any event, have to approve any further notices and would no doubt ensure that they were not confusing.
31 Fourth, it may be accepted that it is relevant to have some regard to s 37M of the Federal Court Act and the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. That is reflected in the Court's class action practice note (GPN-CA), the aims of which include facilitating the efficient and expeditious conduct of class actions. That said, as Beach J noted in Earglow Pty Ltd v Newcrest Mining Ltd [2015] FCA 328; (2015) 230 FCR 469 at [36], s 37M cannot be used to give broader meaning or scope to s 33ZF, and the general provision in s 37M may be limited by the contextually specific provision in s 33ZF. In short, the relevant test in s 33ZF is whether the proposed order is "appropriate or necessary to ensure that justice is done in the proceeding", not whether the order will facilitate the inexpensive, efficient and expeditious conduct of the proceeding, as laudable as that aim may be.
32 In any event, in the particular circumstances of this case, the possibility that, if the proceedings do not settle at the mediation that is to take place in the next seven months, there might be a need to approve further notices, and make further class closure orders, at some later stage of the proceedings is not a particularly weighty consideration. In the scheme of things, any additional costs, or delay, that may be occasioned if that comes to pass, would most likely not be significant.
33 Fifth, Ashley's submissions that group members who do not register at this early stage could nonetheless approach the Court for leave to participate in any future settlement, or that the Court could vary or discharge the class closure order to permit an unregistered group member or members to participate in any future settlement, have little merit. It is true that both those things could occur. An unregistered group member in those circumstances, however, would most likely bear the burden or onus of demonstrating why, not having taken the active step of registering, they should be permitted to share in the settlement, or why the Court should make some other order in their case. Depending on the particular circumstances, that might be a very difficult burden to discharge. To use the fact that an unregistered group member might make such an application to support the making of a class closure order in the first place would tend to shift or invert what the "opt out" scheme of representative proceedings in the Federal Court Act plainly envisages as the passive involvement of group members, to a scheme which requires group members who do not take any active step to persuade the Court why they should nevertheless be permitted to participate in the proceeding.
34 Sixth, the fact that orders in similar terms to those proposed by Ashley have been made in other cases is not particularly persuasive. The question whether a class closure order should be made and in what terms must be determined having regard to the particular facts, circumstances and merits of the case in question. The Court has not been required to confront the particular issue raised in this case in any of the previous cases relied on by Ashley. Most of the cases referred to by Ashely were cases where the orders were made by consent, or were not opposed by the parties. That relevantly includes Treasury Wine, where the issue was not whether the class closure order should be made for the purposes of any settlement, but whether it should extend to judgment. The Court was not specifically taken to any case where class closure orders similar to those proposed by Ashley were made over the opposition of the applicant. The circumstances of most of the cases referred to by Ashley also differed in material ways from the facts and circumstances of this case. In most of the cases, the class closure orders were made in aid of a mediation that was to occur either close to the trial, or at least in circumstances where the case had progressed well beyond the extent to which this case has progressed. That again includes Treasury Wine, where the orders were made at a stage when the trial was imminent.
35 Seventh, the parties proposed that the class closure orders be made at this early stage of the proceedings specifically because there will be a mediation within the next six or seven months. The orders were said to be in aid of that mediation, or any settlement that may arise from it. It is unlikely that class closure orders would have been proposed at this early stage but for that early mediation. Indeed, but for the early mediation, the parties may have had difficulty persuading the Court that it was necessary or appropriate to make any class closure orders at this early stage. In those circumstances, the orders proposed by Ashley could be said to operate more broadly than is necessary or appropriate in the circumstances. That is because it is at best doubtful that the orders proposed by Ashley are likely to advance the prospects of settlement at the mediation any more than the orders proposed by Mr Bradgate. Indeed, it might reasonably be said that the orders proposed by Mr Bradgate are more likely to facilitate a settlement at that mediation because they may focus the attention of the parties on the desirability of settling the proceedings at the mediation, as opposed to at some later period after the proceedings have progressed further.
36 Eighth, and related to the previous point, putting aside the specific mediation that is to take place within the next six months or so, one of Ashley's primary submissions appeared to be that its broader orders would be more conducive to, or would better facilitate, the possible settlement of the proceedings at some unknown stage in the future. That was implicitly, if not explicitly, based on the proposition that the class closure orders enable Ashley to ascertain the full extent of its potential liability, permit any settlement amount to be capped, and assist in achieving finality. Even if that is accepted, it does not, without more, provide a sufficient justification for the making of those orders at this early stage. If that was a sufficient justification, it would allow for the making of similar class closure orders at an early stage of just about any representative proceedings, whether or not a mediation was proposed, or whether or not any settlement discussions had taken place or were even proposed or contemplated at that point in time. That would not be an altogether different scenario from the scenario considered in Winterford v Pfizer Pty Ltd [2012] FCA 1199. As has been seen, the Full Court in Treasury Wine agreed with the approach taken by Bromberg J in that case, including his Honour's observation (at [9]) that making a class closure order in those circumstances "would turn on its head the very nature of the opt-out model chosen by the legislature".
37 That is not to say that class closure orders of the kind sought by Ashley cannot or should not ever be made. Much will depend on the particular circumstances of the case. It is, however, unlikely that class closure orders, sought at a very early stage of the proceedings, that operate to prevent group members who do not take the active step of registering from participating in any settlement of the proceedings, could be considered to be necessary or appropriate simply because they might facilitate a mediated settlement, or settlement negotiations, that might occur some considerable time in the future.
38 Ninth, as the Full Court said in Treasury Wine, the attitude of the parties may be a relevant consideration. As has already been noted, in many if not most of the cases where class closure orders have been made, the orders were agreed or not opposed by one or other of the parties. The Court should generally exercise some caution before making a class closure order over the objection of the applicant, particularly at an early stage of the proceeding. It is difficult to see how class closure orders could be seen to be conducive to settlement if they are vigorously opposed by the applicant.
39 Here, Mr Bradgate opposed the making of the class closure orders proposed by Ashley. He submitted that those orders were not necessary or appropriate, or at least were broader than was appropriate. Ashley contended that its proposed orders were preferable, but did not, in terms, contend that the orders proposed by Mr Bradgate were not appropriate.
40 Finally, it should be noted that, in the course of the hearing Mr Bradgate agreed to amend his proposed orders so that they provided that group members who did not register would not, without leave, be permitted to share in any settlement reached at the mediation, or within 56 days (two months) of the first day of the mediation, as opposed to the order originally proposed, which specified 28 days. The amendment of the order in that way provided greater scope for the class closure orders to apply if the mediation, or settlement negotiations following the mediation, continued for some period after the commencement of the mediation.
41 In all the circumstances, the class closure orders sought by Mr Bradgate were considered to be necessary or appropriate to ensure that justice is done in the proceeding because they would facilitate the possible early settlement of the proceeding at the mediation which is to take place before 13 July 2018. The orders sought by Ashley, however, were not, at least at the present stage of the proceedings, considered to be necessary or appropriate to ensure justice is done in the proceeding. They operated more broadly than was appropriate or necessary in the circumstances. On balance, Ashley did not establish a good reason why the class closure orders should extend to preclude group members who do not register from seeking any benefit from any settlement that might be reached at any time, as opposed to any settlement reached at or within 56 days of the first mediation, as provided in Mr Bradgate's orders. In the particular circumstances of this case, Mr Bradgate's orders were more reasonably adapted to the purpose of seeking or obtaining justice in the proceeding. The orders proposed by Ashley were not.
[50]
Disposition
42 As has already been noted, orders were made on 13 December 2017 following the conclusion of the hearing on 8 December 2017. Those orders were in accordance with the orders proposed by Mr Bradgate, though incorporating the changes that were agreed between the parties during the course of the hearing.
43 A separate order will be made that the time for the filing of any application for leave to appeal shall commence to run from the date of publication of these reasons.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.
[51]
SCHEDULE OF PARTIES
NSD 2074 of 2016
FIRST CROSS CLAIM
Second Cross-Respondent CARL HOLMES
Third Cross-Respondent MARIE HOLMES
SECOND CROSS CLAIM
Cross-Claimant ASHLEY SERVICES GROUP LIMITED ACN 094 747 510
First Cross-Respondent DELOITTE TOUCHE TOHMATSU
Second Cross-Respondent DELOITTE CORPORATE FINANCE PTY LTD ACN 003 833 127
THIRD CROSS CLAIM
Cross-Claimant ASHLEY SERVICES GROUP LIMITED ACN 094 747 510
Cross-Respondent GRANT THORNTON CORPORATE FINANCE PTY LTD ACN 003 265 987
FOURTH CROSS CLAIM
Cross-Claimant: GRANT THORNTON CORPORATE FINANCE PTY LTD ACN 003 265 987
Cross-Respondent ASHLEY SERVICES GROUP LIMITED ACN 094 747 510