20        During those negotiations, Mr Morrow did not mention to Mr Murray that he was, at the same time, in effect negotiating with the ABC to re-badge his proposed Are You Being Served program as the seventh series of The Checkout, subject only to a successful culmination of his negotiations with Mr Murray concerning [CJZ's] shares in the Joint Venture Company.                                                                                                                                                                                                                                                                                                   During the negotiations between CJZ and Giant Dwarf about the Share Sale Agreement, Mr Morrow was not negotiating with the ABC to "re-badge" Are You Being Served? as The Checkout Series 7.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  This finding appears at the beginning of the primary judge's reasons in a summary of the significant events which led to the proceedings and therefore must be read in light of the more detailed findings made later in the judgment. The expression "rebadge" ought, in this context, not be read as implying that Are You Being Served was in substance the same as The Checkout, but rather that they were both consumer affairs shows which were substitutable for each other in the sense that the ABC would only broadcast one consumer affairs show.

                                                                                           86        Proposed cl 28 was included in the drafts as a "boilerplate" provision and was not intended by either Mr Morrow nor Mr Murray to reflect or record their relationship as joint venturers.                                                                                                                                                                                                                                                                                                                                                                                                                                                                              It was a common understanding of Giant Dwarf and CJZ at all times before 8 April 2019 that there was no fiduciary relationship between the parties.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Clause 28 was contained in a draft agreement which was never signed and was inconsistent with the parties' agreement to enter into a joint venture, which imposed fiduciary duties.

                                                                                           152       CJZ'S "flirtation" in 2018/2019 with the possibility that CJZ would pitch to the ABC a consumer affairs show to be tentatively described as "Fraud Squad" did not have significance in this case.                                                                                                                                                                                                                                                                                                                                                                                                                                                                      In 2018/2019 CJZ worked to create a new consumer affairs show "Fraud Squad" to be produced exclusively by CJZ.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Factual finding reflected the primary judge's advantage in hearing and seeing the witnesses and his acceptance of Mr Murray's evidence that nothing came of the possibility, which was, in any event, not pitched to the ABC.

                                                                                           252(d)    There is no obvious reason why Mr Munro would, a day after the meeting, have misremembered or misquoted what had been told to him by Mr Carrington or Mr Huddleston about the meeting.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The email on 14 February 2019 from Peter Munro to Emma McDonald refers to a meeting on 13 February 2019 which Mr Munro did not attend.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The primary judge's finding reflected his understanding that Mr Munro was not present at the meeting and had been told what had happened by Mr Carrington and Mr Huddleston, who were present.

                                                                                           270       If, as Mr Morrow said, he thought that Giant Dwarf was entitled to make a consumer affairs project without reference to the Joint Venture Company or CJZ, consistently with his understanding of the terms of the Joint Venture Agreement, there was no reason for him not to mention to Mr Murray those communications. A more likely reason for Mr Morrow not to have said anything to Mr Murray about this was his understanding that the ABC remained open to the possibility of recommissioning The Checkout; a matter that [the primary judge found] Mr Morrow did not wish to raise with Mr Murray in the context of "drawing a line" under the joint venture.  Giant Dwarf was entitled to make a consumer affairs project without reference to the Joint Venture Company or CJZ provided the new project did not use the intellectual property of the Joint Venture Company.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The finding is supported by Mr Morrow's admissions contained in his email dated 4 June 2019, which is set out at [202] and [586]. The fact for which the cross-appellants contended is not inconsistent with the primary judge's finding about the reason for Mr Morrow's non-disclosure to Mr Murray about the possibility of the ABC recommissioning The Checkout. No error has been shown in the primary judge's finding.

                                                                                           285       [The primary judge found] this email to be a reasonably contemporaneous confirmation of the correctness of Mr Murray's recollection about what Mr Morrow said about this.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Mr Murray's email dated 13 June 2019 is not a reasonably contemporaneous record of what Mr Morrow said to Mr Murray on 19 February 2019.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Mr Murray's email of 13 June 2019 did not need to be "reasonably contemporaneous" with the conversation of 19 February 2019 to be admissible under s 64(3) of the Evidence Act. It was open to the primary judge to regard the email as "reasonably contemporaneous". No error has been demonstrated.

                                                                                           287       Mr Morrow's denial of having said words to this effect [that he never wanted to work in television again] should, in my opinion, be seen in the context of his immediately preceding, and false, evidence that the ABC had not told him, as at 19 February 2019, that it wished to present a consumer affairs show.                                                                                                                                                                                                                                                                                                                                                    After the meeting on 13 February 2019 with the ABC executives Michael Carrington and Richard Huddleston, Mr Morrow did not have a clear sense of what the ABC wanted in terms of a new consumer affairs television project or whether the ABC did in fact intend to air a prime time consumer affairs television project in the second half of 2019 (ExA04.1256 para 106).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    Factual finding reflected the primary judge's advantage in hearing and seeing the witnesses and his acceptance of Mr Murray's evidence. The finding was immaterial, except as to Mr Morrow's credit, because the primary judge found that Mr Murray did not rely on it: [531].

                                                                                           287       I find that Mr Morrow did say the words attributed to him by Mr Murray.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Mr Morrow did not say to Mr Murray on 19 February 2019 that he "never wanted to work in television again".                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    See above, for fact 8.

                                                                                          287       They cannot have reflected his true state of mind. They must have been said to deflect Mr Murray's attention from the prospect of Mr Morrow's further involvement in any potential recommissioning of The Checkout.                                                                                                                                                                                                                                                                                                                                                                                                                                                    On 19 February 2019, Mr Morrow described the non-television projects he was working on to Mr Murray and told him he was focussing on those projects. He also referred to other television projects Giant Dwarf had in development that he was supporting. (ExA04.1401-2)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      See above, for fact 8.

                                                                                          331       It was Mr Morrow's state of mind as at 25 February 2019, and the fact, that no agreement, whether in principle or otherwise, had been reached between the two parties at this time.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    It was Mr Morrow's state of mind after 22 February 2019 that there was an agreement in principle between Giant Dwarf and CJZ about the terms on which CJZ would exit the Joint Venture Company.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               The primary judge's finding has not been shown to be in error, and was correct for the reasons given by his Honour at [322]-[331].
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           It was Simon Fraser's state of mind after 22 February 2019 that Giant Dwarf and CJZ were "broadly in agreement" on the terms on which CJZ would exit the Joint Venture Company (ExA10.4017).

                                                                                          341-342   The language Mr Morrow used in a telephone conversation with Mr Murray on or around 5 or 6 March 2019 was apt to suggest to Mr Murray that Mr Morrow's motivation to "progress the deal" was the PDV Offset.                                                                                                                                                                                                                                                                                                                                                                                                                                                           The language Mr Morrow used in his communications with Mr Murray and CJZ in relation to "progressing the deal" was not apt to suggest to Mr Murray or CJZ that the PDV Offset was the sole purpose of or motivation for the Share Sale Agreement. Mr Morrow and Mr Murray gave conflicting accounts about subsequent telephone conversations between them (ExA04.1263, ExA04.1404, ExA05.1637). Mr Murray accepted that on 27 February 2019, Mr Morrow rejected his offer of a short term loan from the Joint Venture Company to Giant Dwarf to repay the Netflix loan. Mr Murray's evidence (ExA05.1637) was that Mr Morrow said "we may as well sort it all out at once rather than having to have two different transactions". The two different transactions Mr Morrow was referred to were: (a) the Joint Venture Company paying Giant Dwarf its share of the Series 5 & 6 PDV Rebate; (b) the sale of CJZ's shares in the Joint Venture Company to Giant Dwarf. Mr Murray gave evidence of a further conversation with Mr Morrow on 5 or 6 March 2019 (ExA05.1639), which Mr Morrow said was an account of the 27 February 2019 conversation. If a second conversation occurred on 5 March 2019, it happened in the context of the 27 February 2018. In that context, the language Mr Murray ascribed to Mr Morrow was not misleading.  The primary judge's finding was consistent with the chronology and the objective probabilities. Mr Morrow's continued reference to the need to progress the transfer to enable him to access his share of the PDV rebate was a constant theme of his communications with Mr Murray about the share transfer. No error has been shown in the primary judge's finding, which was correct, about Mr Morrow's attempts to "manage the message" ([297]).

                                                                                          352       Mr Morrow was not correct to say to the ABC that Giant Dwarf and CJZ had "reached agreement on the terms for [CJZ] to exit The Checkout's production company".                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         It was accurate for Mr Morrow to say to the ABC on 8 March 2019 that Giant Dwarf and CJZ had "reached agreement on the terms for [CJZ] to exit The Checkout's production company" and that the parties were "in the process of formalising" that.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             The primary judge's finding, which was correct, was based on the timing of Mr Morrow's meeting with the ABC on the morning of 8 March 2019 ([347]-[351]) at which this statement was made and the receipt later on 8 March 2019 of the email from CJZ which confirmed the terms on which CJZ was prepared to sell its share in the Joint Venture Company (set out at [332]).

                                                                                          385       Ms Pincus's statement that she and Ms Waite had formed a view that Mr Morrow's proposed Are You Being Served show was sufficiently similar to The Checkout to constitute a 'spinoff' justified an inference that this was the ABC's apprehension about the matter.                                                                                                                                                                                                                                                                                                                                                                                                     Are You Being Served? would not have been not a spinoff of The Checkout under the definition of "spinoff" in The Checkout Series 6 contract (ExA07.2763).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     The terms of primary judge's finding at [385] indicate that his Honour did not purport to address whether the proposed show was in fact a spin-off but rather, that his Honour understood the basis for the ABC's apprehension (which, in turn, explained the ABC's sensitivity to issues about the ownership of intellectual property). No error in the primary judge's finding has been demonstrated.

                                                                                          404       As Ms Pincus's documents were created during, and then immediately after the conversation, I think it likely that they are the most accurate record as to what was said.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               Ms Pincus did not give evidence about the circumstances in which her handwritten notes were made, or the purpose they were made for. Ms Pincus handwritten notes are not the most accurate record as to what was said. They were admitted subject to a limitation pursuant to s 136 of the Evidence Act.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      The limitation imposed by the primary judge affected admissibility under s 69 of the Evidence Act but did not affect the admissibility of the document pursuant to s 64(3). Ms Pincus' notes about what was said at the meeting between herself and Mr Morrow were admissible under s 64(3) of the Evidence Act to prove what Mr Morrow said at the meeting (since he was called to give evidence). It was not disputed that Ms Pincus made her notes contemporaneously. The primary judge's finding has not been shown to be in error.

                                                                                          404       As Mr Morrow did not dispute the accuracy of those notes, and notwithstanding the limited basis upon which [the primary judge] admitted them, [the primary judge inferred] that they [were] an accurate record of what was said.                                                                                                                                                                                                                                                                                                                                                                                                                                       Ms Pincus' handwritten notes were admitted subject to a limitation pursuant to s 136 of the Evidence Act and cannot be taken to be an accurate record of the conversation on 28 March 2019. Mr Morrow's account differed from Ms Pincus' notes.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               As for (15) above.

                                                                                          428       Mr Morrow's evidence confirms the accuracy of Ms Pincus's note, and makes clear that Mr Morrow's state of mind at this point was that there was a "genuine prospect", to use the words of his email to Mr Murray of 13 June 2019 … and an "opportunity" (for the purposes of the implied term of the Joint Venture Agreement …) to produce a further series of The Checkout.                                                                                                                                                                                                                                                                                           To the extent Mr Morrow's affidavit evidence differs from Ms Pincus' notes, Mr Morrow did not accept the accuracy of Ms Pincus' notes. The conversation between Mr Morrow and Ms Pincus on 28 March 2019 did not give rise to any obligations under the Joint Venture Agreement.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              This factual finding reflected the primary judge's advantage in hearing and seeing Mr Morrow give evidence and be cross-examined. The primary judge accepted Mr Morrow's concession in cross-examination (referred to at [427]) as his Honour was entitled to do.

                                                                                          465       There is no suggestion in the evidence that Mr Murray saw the "fundamental purpose" of the Share Sale Agreement to be as Mr Morrow stated.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             Mr Murray's account of the conversation with Mr Morrow at the Duck Inn on 19 February 2019 (ExA05.1634) was Mr Morrow said "it's probably a good time to draw a line under the Joint Venture and also deal with the IP rights in the show in the unlikely event it returns." [267]                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            When [465] is read as a whole, it is plain that the primary judge was juxtaposing Mr Morrow's fundamental purpose in seeking the Share Sale Agreement (to be able to produce further series of The Checkout in a more profitable way (because he would not have to pay 40% of the profits to Mr Murray)) with Mr Murray's ignorance of that purpose. No error has been shown.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           At all times from 19 February 2019, Mr Murray understood that the purpose of the discussions between Giant Dwarf and Cordell was to end CJZ's involvement in the Joint Venture Company and to deal with the parties' rights in relation to potential future series of The Checkout.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           When Mr Morrow spoke to Mr Murray on 19 February 2019 and 27 February 2019 (and 5 or 6 March 2019, if that occurred), Giant Dwarf and the ABC were not in a state of advanced negotiations in relation to a new consumer affairs television project.

                                                                                          465       Mr Murray had no knowledge of Mr Morrow's communications with the ABC, nor of the advanced state of his negotiations with them.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        On 28 February 2019, Mr Morrow's state of mind was that there had been "no meaningful progress" in the discussions with the ABC                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               The primary judge, in [465] was addressing Mr Murray's state of knowledge as at the time the Share Sale Agreement was entered into (this being a crucial finding for the misleading or deceptive conduct claim). His Honour's finding was correct.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           about a new consumer affairs television project and he was concerned he was "being strung along" by the ABC: (ExA10.4041).

                                                                                          483       Certainly, by 1 April 2019 Mr Morrow must have seen that there was an "opportunity" and a "genuine prospect" of the ABC agreeing that the new consumer affairs show could be called The Checkout; and that this was an opportunity that was available not only to him, or to Giant Dwarf, but also to the Joint Venture Company.                                                                                                                                                                                                                                                                                                                                       On 19 February 2019, Mr Morrow advised Mr Murray that:(i) Giant Dwarf would not agree to further production of The Checkout while CJZ remained a shareholder of the Joint Venture Company, and (ii) Giant Dwarf would instead make a new consumer affairs program instead of The Checkout.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    This is addressed in Adamson JA's reasons at [97]-[98].
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           After 22 February 2019, an opportunity for there to be a seventh series of The Checkout could not arise unless Giant Dwarf withdrew its veto on further production of The Checkout. By no later than 22 February 2019, Giant Dwarf had exercised its right to veto further production of The Checkout and/or communicated to CJZ an intention to veto further production of The Checkout.

                                                                                          484       Mr Morrow did not wish the Joint Venture Company to pursue that "opportunity" so long as Mr Murray was the director of the Joint Venture Company and CJZ was its 50% shareholder. He asked the ABC to not inform Mr Murray of the opportunity.                                                                                                                                                                                                                                                                                                                                                                                                                         Mr Morrow asked the ABC not to inform CJZ that the ABC was in discussions with Giant Dwarf about a new consumer affairs television program.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   This is addressed in Adamson JA's reasons at [97]-[98].
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           At all times from 2018, it was a common assumption of Giant Dwarf and CJZ that the Joint Venture Agreement did not require a party to inform the other about an opportunity to make a television program which was not The Checkout.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           On 19 February 2019, Mr Morrow advised Mr Murray that:

                                                                                          486       Mr Morrow, however, had done this without revealing to his fellow director, Mr Murray, his plans to cause the opportunity to become available and, once it was                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         (i) Giant Dwarf would not agree to further production of The Checkout while CJZ remained a shareholder of the Joint Venture Company, and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      The primary judge's finding at [486] is a conclusion based on a number of anterior findings, which are correct. See also Adamson JA's reasons at [99]-[101].
                                                                                                    available, to appropriate it for the benefit of Giant Dwarf.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           (ii) Giant Dwarf would instead make a new consumer affairs program instead of The Checkout.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Mr Morrow did not plan to, and did not, appropriate an opportunity of The Checkout for the benefit of Giant Dwarf.

                                                                                          501       In March 2019, an opportunity arose for there to be a seventh series of The Checkout.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  See findings contended for at paragraph [J483] above.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         The finding was plainly correct and supported by the evidence of what Mr Morrow knew of the ABC's intentions in March 2019.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Mr Morrow became aware of the opportunity for Giant Dwarf to produce a new consumer affairs program as a result of communications from David Anderson to Mr Morrow in his capacity as a director of Giant Dwarf, not in his capacity as a director of the Joint Venture Company.

                                                                                          501       Mr Morrow became aware of that opportunity by reason of discussions that he had had, in the eight months leading to March 2019, with officers of the ABC.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              On 14 August 2018, the ABC Managing Director indicated publicly on ABC Radio that there was an opportunity for The Checkout to return to ABC television after July 2019: ExA09.3588.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          The finding at [501] set out in (24) was correct and would not appear to be genuinely in dispute.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           On 25 September 2018, the ABC Managing Director indicated publicly on ABC News Breakfast (ExA09.3628) that the ABC intended to pursue a consumer advocacy on television "whether it's The Checkout or another program in the future."

                                                                                          501       He had those discussions in his capacity as a director of the Joint Venture Company.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   On 19 September 2019, the ABC Managing Director Mr Anderson telephoned Mr Morrow about an opportunity to make a new consumer affairs television program: ExA04.1250.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          This is a legal conclusion which was open to the primary judge and which was correct having regard to the ambit of the joint venture between Giant Dwarf and CJZ with respect to The Checkout.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Mr Anderson contacted Mr Morrow on 19 September 2019 in his capacity as managing director of Giant Dwarf.

                                                                                          501       Through those discussions, an opportunity arose that Mr Morrow should have, as a director of the Joint Venture Company, disclosed to the Joint Venture Company and thus, to his fellow director, Mr Murray.                                                                                                                                                                                                                                                                                                                                                                                                                                                            The Joint Venture Agreement did not give rise to an obligation of a shareholder to inform the Joint Venture Company of an opportunity to make a television program that was not The Checkout.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 As for (25).

                                                                                          512       …what Mr Morrow asserts he told Mr Murray on 19 February 2019 was apt to lead Mr Murray to the conclusion that Mr Morrow was not yet in discussions with the ABC and that he would not be taking any steps to seek to revive production of The Checkout until the posited share sale transaction had been consummated.                                                                                                                                                                                                                                                                                                                                                 What Mr Morrow asserts he told Mr Murray, and in fact said, on 19 February 2019 was not apt to lead Mr Murray to the conclusion that Mr Morrow was not yet in discussions with the ABC.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       The finding at [512] is a conclusion which follows from the primary judge's findings. No error has been shown in this finding which is consistent with the objective probabilities and the evidence.

                                                                                          522       Mr Morrow did not say in any of those communications that his only reason for seeking to have Giant Dwarf acquire CJZ's shares was to access the PDV Offset. But the emails were apt to, and I have found calculated to, create that impression and to convey that access to the PDV Offset was Mr Morrow's only immediate motivation.                                                                                                                                                                                                                                                                                                                                 Mr Morrow did not represent that his only immediate motivation for entering into the Share Sale Agreement was to enable Giant Dwarf to access its share of the PDV Offset rebate.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             The finding at [522] is based on earlier findings at [257], [258], [265], [266], [294], [301], [342], [438] [439], [451], [465], [512]-[522]. The finding was open to his Honour and reflected his advantage in seeing and hearing the witnesses, and in particular Mr Murray and Mr Morrow.

                                                                                          528       Mr Morrow did make the "PDV Representation" to CJZ.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    Mr Morrow did not make the "PDV                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               See reasons of Adamson JA at [119].
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Representation" to CJZ.

                                                                                          535       Mr Morrow's silence in the period from 19 February 2019 to 8 April 2019 concerning the progress and status of his negotiations with the ABC, combined with his "half truth" communications with Mr Murray in the meantime, constituted misleading or deceptive conduct.                                                                                                                                                                                                                                                                                                                                                                                                At all times before executing the Share Sale Agreement, CJZ and Mr Murray relied on information obtained directly from the ABC (and not disclosed to Mr Morrow or Giant Dwarf) in making their assessment of the likelihood of the ABC funding a further series of The Checkout. CJZ obtained legal advice about the terms of the Share Sale Agreement before executing it Mr Murray reviewed, multiple times, the terms of the Share Sale Agreement, including the reference to the production of future series of The Checkout and Giant Dwarf's exclusive rights, before executing it. In executing the Share Sale Agreement, Mr Murray relied on information and representations made by the CEO of CJZ, Matthew Campbell.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                See reasons of Adamson JA at [121].

                                                                                          538       Mr Murray and CJZ had a reasonable expectation that Giant Dwarf would comply with this term and disclose the opportunity that [the primary judge] found had been presented.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            At all times during the Joint Venture Agreement or alternatively after 22 February 2019, Mr Murray or CJZ did not have an expectation that Giant Dwarf or Mr Morrow would inform CJZ or the Joint Venture Company if Giant Dwarf had an opportunity to produce a television program that was not The Checkout.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                See reasons of Adamson JA at [131]-[134].

                                                                                          540       I see nothing in any of the evidence to suggest that Mr Murray should have, himself, made enquiries of Mr Morrow or the ABC between 19 February 2019 and 8 April 2019.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Mr Murray did not make enquiries of Mr Morrow and/or the ABC between 19 February 2019 and 8 April 2019 about the possibility of making another series The Checkout.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           It was common ground that Mr Murray did not make such enquiries during that period. The primary judge was correct to regard this matter as confirming Mr Murray's expectation that if there was a genuine prospect of The Checkout being made again, Mr Morrow would tell him about it.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           On 14 June 2019 (ExA12.5348), Giant Dwarf proposed a resolution of the impasse in relation to the execution of the Quit Claim which reserved CJZ's rights to pursue claims not related to the "Checkout IP", a proposal CJZ rejected. The Breach Notice dated 19 June 2019 (ExA 12.5363) issued by Giant Dwarf to CJZ stated (in para 20) that CJZ's "communications with the ABC and dealing with our client evidence a clear intention to rescind or not be bound by the terms of the SSA" and identified the conduct evidencing that intention.

                                                                                          670       CJZ did not repudiate its obligations under the Share Sale Agreement.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  By letter dated 19 June 2019 (ExA12.5373), CJZ expressly refused to stand by                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Unnecessary to decide in light of Adamson JA's reasons to dismissing the cross-appeal from the order for rescission. However, it is addressed in reasons of Adamson JA at [184]-[185].
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           the validity of the SSA.

                                                                                          676       Mr Murray, it appears correctly, took that to be a dishonest answer and the settlement "fell over" as a result.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Mr Murray was incorrect in his belief that Mr Morrow gave a dishonest answer on 17 June 2019 to a question about how many series of The Checkout the ABC was proposing to commission.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         See reasons of Adamson JA at [169].

                                                                                          820       Mr Reucassel expressed some support for Mr Murray's "current position" of not executing a Quit Claim.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Mr Reucassel did not express support for Mr Murray's position of not executing a Quit Claim. The statement in Mr Murray's email to Mr Carrington on 20 June 2019 that his position of not executing a Quit Claim was supported by a director of Giant Dwarf was false. ExA14.6278-81.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         See reasons of Adamson JA at [190]-[192].

                                                                                          940       Mr Murray did not allege fraud against Mr Morrow in these proceedings and has not been able to justify the allegations of fraud made in these two emails.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Mr Murray alleged fraud against Mr Morrow repeatedly in the proceedings without justification.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                See reasons of Adamson JA at [234].

                                                                                          963, 968  There is no evidence to suggest that anything Mr Murray said led Mr Morrow to reach any such conclusion or a change in the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             After Mr Murray's communications to the ABC, the ABC offered Giant Dwarf substantially less favourable terms for a new consumer affairs program.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              See reasons of Adamson JA at [239].
                                                                                                    ABC's position.

                                                                                          998       Mr Morrow did not call Mr Reucassel to contradict that evidence, notwithstanding the fact that, as I have said, Mr Reucassel is a director and shareholder of Giant Dwarf.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             Mr Reucassel was not a director of Giant Dwarf at any time from 2019 onwards. In Mr Reucassel's communications with Mr Ben Kay (ExA14.6278-81), Mr Reucassel did not agree with Mr Murray's claims about Mr Reucassel's conduct.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              This finding is related to fact 35 above: see the reasons of Adamson JA at [190]-[192].
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         Mr Reucassel was a director of Giant Dwarf at the relevant time (2019); therefore although there is a slight error in the primary judge's use of the present tense, it is immaterial.

                                                                                          1002      I see no basis to conclude that Mr Murray was actuated by malice in making this statement. Indeed, Mr Murray's evidence as to what Mr Reucassel said to him provides some basis for it.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Mr Murray was actuated by malice towards Mr Morrow at all times on and after 21 May 2019.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Not necessary to decide as causation not established.

                                                                                          1006      I see no reason to doubt that Mr Reucassel did make this statement to Mr Murray.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Craig Reucassel did not recently before 21 May 2019 ask CJZ or Mr Murray to take over management and production of The Checkout.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              Not necessary to decide as causation not established.

                                                                                          1007      [A]lthough it was untrue to the extent it referred to "the recent past", [the primary judge did] not find it was made maliciously.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Mr Murray was actuated by malice towards Mr Morrow at all times on and after 21 May 2019.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Not necessary to decide as causation not established.

                                                                                          1044-45   …when read in the context of the whole email, it is clear that Mr Murray is referring to the possibility of subpoenas being served on the ABC were he to commence proceedings against Mr Morrow, Giant Dwarf and the Joint Venture Company, and of the ABC thereby incurring expense. Mr Murray's statement was thus not only true, but it was prescient.                                                                                                                                                                                                                                                                                                              Mr Murray made a false representation that if the ABC commissioned The Checkout or any other consumer affairs programs involving Mr Morrow or Giant Dwarf without the involvement or consent of CJZ, CJZ would cause the ABC to suffer commercial damage.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Not necessary to decide as causation not established.