Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports... [2026] NSWSC 600 | Case summary

Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports... [2026] NSWSC 600 | Case summary | Zoe

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-05-29

Before

Hammerschlag CJ in Eq

Catchwords

CONTRACTS — Construction — Shareholders’ Deed amongst shareholders in a company and with the company (Deed) contains an extended definition of shareholder — Deed provides that confidential information in relation to another party’s business must not be disclosed by a shareholder to any prospective purchaser of a share unless the purchaser has entered into a deed of confidentiality with the other shareholders in a form to their reasonable satisfaction and enforceable by any of them — Deed provides that a shareholder is in default if it commits a material Irremediable Breach in which event the directors may by special resolution confirm the default and may give the defaulting shareholder a Default Notice — if such notice is given, the shareholder is taken as wishing to dispose of all of its shares — the Plaintiffs hold or manage shares in the company totalling 27.32% — in the course of a process directed at selling some (but not all) of the shares the Plaintiffs disclosed to potential purchasers and their advisors information confidential to the company — whether in doing so it was acting as “Shareholder” in respect of all shares of its Affiliates — whether it committed a material Irremediable Breach of Deed — directors resolve to confirm the Default and issue a Default Notice — whether Default Notice complies with the requirements of the Deed — whether Default Notice is invalid because the directors were improperly motivated in resolving to give it — Plaintiffs bring proceedings for declaratory relief that they did not breach the Deed and that the Default Notice is otherwise invalid – various Defendants bring cross-claims for declarations that Plaintiffs breached provisions of Deed and on an indemnity for loss included in the Deed — HELD — the Plaintiffs committed a material Irremediable Breach of Deed — directors were not improperly motivated and Default Notice is otherwise valid — proceedings dismissed — cross-claims other than for indemnity dismissed — as relief of no utility — claims for indemnity stood over

Source

Original judgment source is linked above.

Catchwords

CONTRACTS — Construction — Shareholders’ Deed amongst shareholders in a company and with the company (Deed) contains an extended definition of shareholder — Deed provides that confidential information in relation to another party’s business must not be disclosed by a shareholder to any prospective purchaser of a share unless the purchaser has entered into a deed of confidentiality with the other shareholders in a form to their reasonable satisfaction and enforceable by any of them — Deed provides that a shareholder is in default if it commits a material Irremediable Breach in which event the directors may by special resolution confirm the default and may give the defaulting shareholder a Default Notice — if such notice is given, the shareholder is taken as wishing to dispose of all of its shares — the Plaintiffs hold or manage shares in the company totalling 27.32% — in the course of a process directed at selling some (but not all) of the shares the Plaintiffs disclosed to potential purchasers and their advisors information confidential to the company — whether in doing so it was acting as “Shareholder” in respect of all shares of its Affiliates — whether it committed a material Irremediable Breach of Deed — directors resolve to confirm the Default and issue a Default Notice — whether Default Notice complies with the requirements of the Deed — whether Default Notice is invalid because the directors were improperly motivated in resolving to give it — Plaintiffs bring proceedings for declaratory relief that they did not breach the Deed and that the Default Notice is otherwise invalid – various Defendants bring cross-claims for declarations that Plaintiffs breached provisions of Deed and on an indemnity for loss included in the Deed — HELD — the Plaintiffs committed a material Irremediable Breach of Deed — directors were not improperly motivated and Default Notice is otherwise valid — proceedings dismissed — cross-claims other than for indemnity dismissed — as relief of no utility — claims for indemnity stood over

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Limited [2026] NSWSC 600

Hearing dates: 7 – 10, 13 – 17, 20 – 21 April 2026

Date of orders: 29 May 2026

Decision date: 29 May 2026

Jurisdiction: Equity - Commercial List

Before: Hammerschlag CJ in Eq

Decision: (1) Plaintiffs’ claims dismissed.
(2) All cross-claims other than for Indemnity dismissed.
(3) Injunctions dissolved.

Catchwords: CONTRACTS — Construction — Shareholders’ Deed amongst shareholders in a company and with the company (Deed) contains an extended definition of shareholder — Deed provides that confidential information in relation to another party’s business must not be disclosed by a shareholder to any prospective purchaser of a share unless the purchaser has entered into a deed of confidentiality with the other shareholders in a form to their reasonable satisfaction and enforceable by any of them — Deed provides that a shareholder is in default if it commits a material Irremediable Breach in which event the directors may by special resolution confirm the default and may give the defaulting shareholder a Default Notice — if such notice is given, the shareholder is taken as wishing to dispose of all of its shares — the Plaintiffs hold or manage shares in the company totalling 27.32% — in the course of a process directed at selling some (but not all) of the shares the Plaintiffs disclosed to potential purchasers and their advisors information confidential to the company — whether in doing so it was acting as “Shareholder” in respect of all shares of its Affiliates — whether it committed a material Irremediable Breach of Deed — directors resolve to confirm the Default and issue a Default Notice — whether Default Notice complies with the requirements of the Deed — whether Default Notice is invalid because the directors were improperly motivated in resolving to give it — Plaintiffs bring proceedings for declaratory relief that they did not breach the Deed and that the Default Notice is otherwise invalid – various Defendants bring cross-claims for declarations that Plaintiffs breached provisions of Deed and on an indemnity for loss included in the Deed — HELD — the Plaintiffs committed a material Irremediable Breach of Deed — directors were not improperly motivated and Default Notice is otherwise valid — proceedings dismissed — cross-claims other than for indemnity dismissed — as relief of no utility — claims for indemnity stood over

Parties

Applicant/Plaintiff:

Dexus Capital Investment Services Pty Ltd

Respondent/Defendant:

Australia Pacific Airports Corporation Limited

Legislation Cited (1)

Cited:** Corporations Act 2001(Cth)

Cases Cited (24)

[2013] VSCA 212

[2007] VSC 102

[2023] NSWCA 20

[2025] NSWSC 519

Cases Cited: Androvitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212
Ansett Australia Ltd v Diners Club Pty Ltd [2007] VSC 102
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Batson v de Carvalho (1948) 48 SR (NSW) 417
BCC Trade Credit Pty Ltd v Thera Agri Capital No 2 Pty Ltd [2023] NSWCA 20
Burger King Corp v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558
Chief Commissioner of State Revenue v Uber Australia Pty Ltd (2025) 118 NSWLR 164
Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152
Dexus Capital Investment Services Pty Ltd atf Dexus Diversified Infrastructure Trust A, Australia Pacific Airport Funds & Australia Pacific Airports v Australia Pacific Airports Corp Ltd [2025] NSWSC 519
Dover Fisheries Pty Ltd v Bottrill Research Pty Ltd (1994) 63 SASR 557
Elders Ltd v EJ Knight & Co Pty Ltd [2009] NSWSC 1462
Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640
Force India Formula One Team Ltd v Etihad Airways PJSC [2010] EWCA Civ 1051
Kelly v Raymor (Illawarra) Pty Ltd [1981] 1 NSWLR 720
Kulkarni v Gwent Holdings Limited [2025] EWCA Civ 1206
Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) 383 ALR 577
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579
Mills v Mills (1938) 60 CLR 150
Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Phoenix Media Limited v Cobweb Information Limited (High Court (UK), 16 May 2000, unreported)
Shuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235
Thera Agri Capital No 2 Pty Ltd v BCC Trade Credit Pty Ltd (t/as Bond & Credit Co) [2022] NSWSC 669
Tricontinental Corp Ltd v HDFI Ltd (1990) 21 NSWLR 689
Victoria v Tatts Group Ltd (2016) 90 ALJR 392
Waters Lane Pty Ltd v Sweeney [2006] NSWSC 222
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530

The First Defendant, Australia Pacific Airports Corporation Limited (APAC or the Company), was founded by three corporate organisations, of which the then-Australian Mutual Provident Society (AMP) was one, to bid on the Federal Government’s intended disposal of its Australian airports.
APAC acquired Melbourne’s Tullamarine Airport and Launceston Airport in Tasmania. It holds 50-year leases from the Federal Government.
AMP was de-mutualised in about 1997, and became AMP Life Limited, which was later sold to Resolution Life Australasia Limited.
The First Plaintiff used to be called AMP Investment Services Pty Limited and was a subsidiary of AMP. AMP sold it to the Dexus Group, and it became a subsidiary of Dexus Holdings Pty Limited (Dexus Holdings). The First Plaintiff changed its name to Dexus Capital Investment Services Pty Ltd (DCIS). The Second Plaintiff, Dexus Capital Investors Limited (DCIL), is a co-subsidiary of DCIS. DCIL was previously called AMP Investments Australia Ltd and was known as “AMP Investments”, prior to being acquired by Dexus Falcon Pty Limited in 2023. Through them, Dexus Holdings conducts its business. The Dexus Group has, amongst others, an infrastructure business. Unless it is necessary to distinguish between DCIS and DCIL, I will refer to them collectively as Dexus.
Melbourne Airport is somewhat bigger than Launceston Airport. APAC generates income from aeronautical services (freight and general aviation), retail leasing at the Airport, car parking, ground transportation, and leasing land and buildings adjacent to the Airport. It has Aeronautical Service Agreements (ASAs) with numerous airlines which govern the airlines’ use of the airports. Airlines are commonly represented in negotiations as a group, by an organisation called the Board of Airline Representatives of Australia (or BARA). When negotiations are sufficiently advanced with BARA, direct negotiations between APAC and the prospective airline parties usually take place.
The relationship between shareholders in APAC is governed by a written Shareholders’ Deed, originally made on 13 June 1997. There have been changes in shareholdings since then. Subsequent shareholders have joined the Shareholders’ Deed via deeds of accession or deeds poll. The current position is reflected in a document styled “Restated Shareholders’ Deed”. It is to that instrument I will refer when dealing with the provisions currently binding the shareholders. It will be referred to as the Shareholders’ Deed.
Two blocs of APAC shareholders are locked in mortal combat.
On one side is the “AMP Bloc”, defined in cl 1.1 of the Shareholders’ Deed to mean AMP and all Affiliates of AMP. “Affiliates” are wholly owned subsidiaries of a Shareholder, the Shareholder’s holding company if it is wholly owned, and co-wholly owned subsidiaries, as well as trusts acting in a trustee or custodial capacity for the Original Shareholders (Original Shareholder is a defined term) and certain specified subsequent Shareholders. It is more apt now to refer to the AMP Bloc as the Dexus Bloc, given the takeover. But the Shareholders’ Deed still refers to the AMP Bloc, so I will use the two descriptions interchangeably. The Dexus Bloc comprises DCIS and DCIL (who are trustees of various trusts), and two other companies, InfraBridge (GIF Cayman Holdco) 4, L.P. (InfraBridge) (Third Plaintiff) and REST Nominees No.2 Pty Ltd as trustee for REST Infrastructure Trust (REST) (Sixth Defendant). DCIL manages all the shareholdings of the Dexus Bloc members pursuant to a series of agreements.
On the other side is the other APAC shareholders (the Non-Dexus Bloc Shareholders).
References in this judgment to clauses are, unless expressly stated or the context indicates differently, to the Shareholders’ Deed.
The Shareholders’ Deed gives a shareholder the right to appoint one director to the Board of directors (the Board) of APAC for each 10% held.
It incorporates confidentiality provisions obliging parties (subject to exceptions) to keep confidential, information relating to the other parties. It has provisions restricting disposal of shares and requires shareholders who wish to sell, first, to offer their shares to the other shareholders (commonly called pre-emptive rights) (pre-emptive rights provisions).
Shareholders are, however, permitted to transfer their shares to an Affiliate of an Original Shareholder (Affiliate Provisions), without the need to comply with the pre-emptive rights provisions. The scope of the Affiliate Provisions gave rise to tensions between Dexus and the Non-Dexus Bloc Shareholders. More about that later.
Under cl 12.1, if a shareholder commits a “material Irremediable Breach” of the Shareholders’ Deed, the shareholder is in default. Under cl 12.2, if a shareholder is in default (defined as a “Defaulting Shareholder”) the Board may, by special resolution, confirm the default. The Board may then also determine to give the Defaulting Shareholder a Default Notice, whereupon the Defaulting Shareholder may not vote its shares and its rights to appoint directors and to receive Company information are suspended.
On receipt of a Default Notice, the Defaulting Shareholder is taken as wishing to dispose of all of its shares (Sale Shares) for a price equal to the Fair Market Value (a defined term) to be determined by the Company’s auditor. The other shareholders may buy the Sale Shares in proportion to the proportion their shareholding bears to all shares on issue.
Under cl 12.4, the Defaulting Shareholder indemnifies each other shareholder and the Company against any costs or other liabilities for which they may become liable, arising out of or in connection with the default of the Defaulting Shareholder (Indemnity).
The parties covenant to be just and faithful to each other, not to act contrary to the interests of the Company and to act bona fide in good faith to promote and enhance the interests and reputation of the Company (cl 20).
In 2024, Dexus embarked on a project, initially styled “Project Pigeon” and later called “Project Mercury” (or the Project), to sell some (not all) of the APAC shares managed by it. The shareholders proposing to sell were referred to in the hearing as the Selling Shareholders and those not proposing to sell as the Non-Selling Shareholders. These descriptions are a construct and neither is found in, nor derived from, the Shareholders’ Deed. As it transpires, in the present context, as will be seen, there is no forensic distinction properly to be drawn between them.
Clause 15.4(g) is at the heart of this controversy. It provides that all information in relation to any other party’s business which is exchanged between them “under this document” is confidential and shall not be disclosed, divulged or otherwise placed at the disposal of a non-party to the Shareholders’ Deed, except a prospective purchaser or assignee of a share (a person of good standing, financial substance and reputation) who has entered into a deed of confidentiality with the other shareholders in a form to their reasonable satisfaction and enforceable by any of them.
In the course of the Project, Dexus gave potential purchasers, and their advisors, access to business and financial information of APAC via a Virtual Data Room (VDR). The information was extensive and included material which is obviously, and is now (correctly) conceded by the Dexus Bloc to be, confidential to APAC.
On 15 May 2025, APAC gave Dexus a Default Notice, asserting a material Irremediable Breach of the Shareholders’ Deed by “Dexus and the Dexus Entities” by having disclosed APAC’s Confidential Information contrary to cl 15.4. The Default Notice asserts that all members of the Dexus Bloc (including the Non-Selling Shareholders) are in default, are no longer entitled to vote the shares held by them, that the rights of the directors appointed by them are suspended, and that their rights to receive information under the Shareholders’ Deed are suspended.
APAC has instructed its auditors (Deloitte) to ascertain the Fair Market Value of the Sale Shares.
Dexus (supported by InfraBridge and REST) challenges the validity of the Default Notice, or seeks that it not be enforced, on the following grounds:
Dexus did not breach the Shareholders’ Deed at all, or if it did, its breach was neither material nor Irremediable (the Breach C****ontention);
if Dexus itself breached, the Non-Selling Shareholders did not do so and were therefore not exposed to being given a Default Notice. The inclusion of the Non-Selling Shareholders in the Default Notice renders it wholly ineffective (the Bloc C****ontention);
clause 12 requires a Default Notice to set out the default, which the Default Notice does not do (the Description C****ontention);
clause 12.2 gives the directors a discretion to confirm the default and then to give a Default Notice. Clause 20 requires the directors, in exercising that discretion, to act justly and faithfully to the Dexus Bloc and in the best interests of APAC. In exercising their discretion to confirm the default and issue the Default Notice, APAC, through its Board, did not act justly, faithfully or in the interests of APAC because the Non-Dexus Directors were improperly motivated by a desire to rid APAC of the Dexus Bloc, to avoid future operation of the Affiliate Provisions and to serve the interests of the companies which appointed them by giving them the commercial advantage of buying some or all of the Sale Shares. To give the Default Notice effect would therefore be to permit APAC to take advantage of its own wrong (the I****mproper M****otivation C****ontention); and
to implement the Default Notice would be oppressive to the Non-Selling Shareholders, within s 233 of the Corporations Act 2001 (Cth) (the Act), and the Court should make orders denuding it of effect (the Oppressive Conduct Contention).
The challenge fails. Dexus committed a material Irremediable Breach of the Shareholders’ Deed, and the Default Notice is valid and effective. My reasons follow.
Where I refer to a contention made by Dexus, unless otherwise stated or the context indicates differently, this should be understood to connote that InfraBridge and REST make the same contention.
APAC is supported in its defence by the Non-Dexus Bloc Shareholders.
Various Defendants cross-claim for declaratory relief and for enforcement of the Indemnity. Their cross-claims for declaratory relief fail because the relief they seek has no utility in the face of the principal findings made in this judgment. Their claims for Indemnity were not motivated at the hearing because they depend on its outcome.
On 21 May 2025, Stevenson J ordered, against certain undertakings given to the Court by Dexus, that APAC be restrained from acting on the Default Notice (Injunctions): Dexus Capital Investment Services Pty Ltd atf Dexus Diversified Infrastructure Trust A, Australia Pacific Airport Funds & Australia Pacific Airports v Australia Pacific Airports Corp Ltd [2025] NSWSC 519. Somewhat optimistically, his Honour recorded, doubtlessly because the parties had said so, that the sole, but critical, issue in the proceedings was whether Dexus had committed a material Irremediable Breach of the Shareholders’ Deed, and fixed the matter for final hearing for two days commencing on 11 August 2025. The final hearing did not proceed then. The Injunctions remain on foot.
The hearing before me commenced on 7 April 2026 and lasted 11 days. There was a false start because the Court Book, which runs to over 28,000 pages, was in a parlous state and had to be fixed. The affidavits run to more than 700 pages. I received some 444 pages of written submissions. The transcript exceeds 1200 pages.
The case is fact intensive. The bulk of the relevant dealings was in writing. It would be practically impossible to recount every fact or relevant document and I have not attempted to do so. Where there were parallel contemporaneous dealings between different parties, I have endeavoured to recount the facts in chronological sequence. I have recounted only those facts, and referred to only those documents, sufficient to disclose my reasoning. In the interests of brevity, I have kept quotations from documents to a minimum. I have taken into account all of the arguments but will not restate them.

By September 2024, by letters of engagement, Dexus engaged consultants to prepare vendor due diligence reports: Aurecon (technical); LEK (traffic and commercial); CBRE (property); PwC (financial and tax), and; Houston Kemp (regulatory – including a Weighted Average Cost of Capital (WACC) forecast). None of these companies signed any separate confidentiality deed or agreement. They were provided with information about, and were asked to critique, APAC’s management assumptions.
On 22 October 2024, the Selling Shareholders and DCIL entered into a written C****onsortium A****greement, under which they agreed to commence and give effect to the Project. They appointed DCIL “in its personal capacity” as “Manager” of the Project. The Consortium Agreement recorded that DCIL was the Manager of the shares for sale under separate investment management agreements with the Selling Shareholders. The Consortium Agreement recorded that DCIL would facilitate the appointment by the Selling Shareholders of a financial adviser and would market the sale of the relevant shares.
Under the Consortium Agreement each party agreed not to disclose information provided by any other party, including the existence or contents of the Consortium Agreement itself, subject to exceptions, none of which permitted disclosure of the existence of the Consortium Agreement itself to APAC.
Inside Dexus, Faulkner had overall responsibility for coordinating the so-called “sell-side” of the Project, that is, for the Selling Shareholders. This included allocating leads to workstreams, such as legal, financial modelling and tax, and coordinating the team overall.
On 29 October 2024, the Australian Financial Review reported that Dexus had “cleared the runway” for the sale of 9.7% of its stake in APAC, and that bidders had been told that the shares for sale were unencumbered by pre-emption rights.
Elia says that having read that article, he continued to have the understanding that Dexus was proposing a transfer within the Dexus Bloc (as it then stood).
In November 2024, JPM released a “Project Mercury Information Memorandum”. It was marked “Strictly Confidential”.
The Project had two stages, a Non-Binding Indicative Offer (NBIO) phase, and then, a Binding Bid (BB) phase. The NBIO phase resulted in offers being received in December 2024. The BB phase started in January 2025.
From 18 November 2024 to 18 January 2025, 19 potential bidders took part in the NBIO phase. Of those, four proceeded to the BB phase:
REST;
DWAF;
GIC Infra Holdings Pte Ltd (GIC), the sovereign wealth fund of the State of Singapore (which owns Singapore Airlines); and
MIC Infrastructure Investments Holding Company LLC (MIC), sometimes called “Mubadala”, the sovereign wealth fund of the State of Abu Dhabi (which owns Etihad Airways).

In mid-December 2023, Gerrans (in-house lawyer at Dexus) had told Harris that some members of the Dexus Bloc wanted to sell shares in APAC. Harris became aware of Project Mercury in January 2024. Her understanding was that the proposed transaction would involve Dexus Bloc members selling their shares to an existing member of the Dexus Bloc or to investors who would become members of the Dexus Bloc.
On 3 April 2024, Trisna emailed a “Confidentiality Deed Poll”, which JPM had signed in relation to Project Mercury, to Harris. She noticed that it was different to the Standard Deed Poll she had received from Dowling. Trisna told her that this was a standard Dexus confidentiality agreement, and was similar to the one JPM had signed for a previous APAC transaction.
On 8 April 2024, after a conversation with another in-house lawyer at Dexus, Harris received what she understood to be the latest version of the Standard Deed Poll. The following day she sent it to Trisna. On 10 April 2024, Harris emailed Trisna that they needed to “use the shareholder approved form of NDA” (meaning non-disclosure agreement) and she sent a marked-up version of the Standard Deed Poll to Trisna, the recitals to which recorded that JPM was receiving confidential information, but not as a prospective purchaser. This form of deed was signed by JPM on 15 April 2024.
From about July 2024, Harris knew that the VDR was being established for Project Mercury.
On 12 September 2024, Harris emailed Chalhoub the version of the Standard Deed Poll to be executed by all third parties who were interested in making an offer. Her covering email said “Please note that this is the form agreed with the APAC shareholders and there isn’t any room to move on it.”
In late September 2024, after a question had arisen as to how previous transactions had dealt with disclosure in accordance with the Shareholders’ Deed, Harris searched Dexus’ electronic filing system and found an email from Daly dated 15 March 2017 which said:

A cynic might think that they were conscious of being on shaky ground.
The password barrier had to be overcome to upload the LTM to the VDR. Dexus achieved this by saving the document as a different version and removing the password from the settings.
Circumventing a password intended to give security against disclosure in order to give access to unauthorised outsiders should have set alarm bells ringing loudly within Dexus. But Fitzpatrick gave the go-ahead for it to happen.
On 17 October 2024, Harris emailed the same version of the Standard Deed Poll that she sent to Chalhoub on 12 September 2024 to Faulkner, Trisna and Simon Pask (Pask) (a member of Faulkner’s sell-side team). She said it was “the APAC form of NDA which must be used for Project Mercury”.
Notwithstanding her initial unqualified insistence that the Standard Deed Poll be used in the form sent and understood by her to have been agreed by the shareholders, Harris did not stick to her guns. As early as 30 October 2024, Chalhoub asked her whether JPM could use its judgment and agree to changes to the Standard Deed Poll. Her response was that the Standard Deed Poll was in the form agreed by the APAC shareholders and if a prospective purchaser wanted to change it without changing its substance, she would need to review the proposed changes.
Between 30 October 2024 and 10 December 2024, a number of interested parties signed the Standard Deed Poll. However, some wanted changes, a few by “side letter”. Chalhoub was negotiating with GIC and MIC both of which wanted changes. Harris approved giving side letters to both.
GIC wanted a side letter because, it said, a similar agreement had been entered into between it and DCIL for an earlier transaction. Harris initially responded that any previous arrangements between them were irrelevant “to some extent” and could not be relied on due to the requirements of the Shareholders’ Deed. She says that, at this time, she did not know that Dexus and GIC had previously executed a Standard Deed Poll with a side letter in relation to an earlier possible purchase by GIC of shares in APAC. She says that she then acceded to the side letter request because she learned of the earlier side letter and she did not think it altered the substance of the Standard Deed Poll (if that was correct, there was no necessity for it).
As to MIC, on 18 November 2025, Chalhoub sent Harris an email identifying proposed amendments to the Standard Deed Poll wanted by MIC. She responded that there were “some concepts here that we just can't live with without being in breach of the APAC SHD, even in a side letter”. She then, in emails to which Faulkner was copied, dealt directly with MIC representatives and agreed amendments to the Standard Deed Poll and the terms of a side letter dated 20 November 2024.
In the interests of brevity, the full text of the side letters is not set out. It suffices to identify substantive changes to the Standard Deed Poll which those side letters made.
For GIC, the Standard Deed Poll restricted disclosure of confidential information to officers and employees of the Recipient (and third party advisers with the prior written consent of the Discloser). The GIC side letter widened (on specified conditions) permissible disclosure to related bodies corporate of the Recipient and their officers, directors, employees, consultants or financial, technical or legal advisers. The Standard Deed Poll provided that, if the Project is not pursued, or the Discloser asks for it earlier, the confidential information must either be returned or destroyed and the Recipient must so certify. The side letter, on the other hand, recorded that the Recipient was not required to return or destroy documents which had been electronically archived pursuant to automatic back-up procedures or other documents which are required by internal compliance policies or record-keeping purposes to be retained by the Recipient. Under GIC’s Standard Deed Poll, it terminates three years from the date the parties enter into a further confidentiality agreement, or discussions end, whichever is earlier. Under the side letter, the Standard Deed Poll ends three years after its date or when the parties enter into a definitive agreement in connection with the “Possible Transaction”, whichever occurs first. The side letter has the effect that there is no confidentiality agreement if the transaction is entered into, even if no further confidentiality agreement is entered into.
As to MIC, the side letter extended the ambit of permissible disclosure to MIC’s “Affiliates”, officers, directors, employees, consultants or financial, technical or legal advisers. Affiliates was given a wide definition. The side letter changed the period of operation of the agreement (as did the GIC side letter). It contained a submission to the exclusive jurisdiction of the courts of the State of Victoria.
Separately, on 14 November 2024, DCIS as trustee of DWAF, signed the Standard Deed Poll in relation to a possible sale of DWAF’s shares in APAC.
On about 21 March 2025, Harris learnt that access to the VDR had been given to three organisations, none of which had signed the Standard Deed Poll (or indeed any confidentiality agreement), namely Mercury Private Pty Limited (Mercury Private), LGT Crestone Wealth Management and Walsh Bay Partners. Harris enquired of Chalhoub of the basis upon which this happened and he emailed her that “DWAF looks to have requested access historically” for these parties. Subsequently, Harris obtained Standard Deeds Poll from Mercury Private and Walsh Bay Partners (which made a minor amendment to the Standard Deed Poll) and was informed that LGT Crestone had signed the Standard Deed Poll in 2023 in connection with a proposed investment in DWAF at that time.

In late 2024, APAC was in the course of committing to a major ten-year capital works program, which entailed upgrading roads and terminals and constructing a third runway (M3R) at Melbourne Airport.
By December 2024, APAC was negotiating with airlines for the new ASA. On 18 December 2024, APAC issued BARA, Virgin Airlines and Qantas with key terms and pricing for the proposed 2025 ASAs (including M3R), to commence 1 July 2025.
Contemporaneously, APAC was receiving numerous information requests from shareholders, in particular UTA (which does not have a director on the Board). UTA’s shareholding is managed by Morrison Utilities Management, which had asked for a detailed breakdown of the WACC. Argus was concerned about sharing highly confidential and commercially sensitive information at a time when management was in critical and sensitive negotiations with airlines.
Argus concluded that the Company should write to the shareholders reminding them of, and reiterating, their confidentiality obligations and explaining that information requests of this type could not be entertained at this critical time. She discussed it with O’Reilly and the matter was raised at a Board meeting on 12 December 2024 during a private session with the directors which Argus attended (she is not a director). Elia says that the consensus amongst the directors was that it was important to keep the Company’s Confidential Information tightly held, particularly during this sensitive time (ie. with the capital expenditure program and ASA negotiations on foot).
On 19 December 2024, Gant circulated to the Board a draft letter to shareholders (after the draft had been approved by O’Reilly, Argus and Martin). Gant called for comments.
Elia suggested some “very minor tweaks”.
Once again, in the interests of brevity, the full text of the draft letter is not set out here. It suffices to say that it made reference to the capital works program, which would be underpinned by the upcoming ASAs, in respect of which a significant body of work still needed to be completed. The draft letter also notes that, to optimise APAC’s chances of success during this critical phase, the Board requested shareholder support and assistance in maintaining confidentiality over highly commercially sensitive information and data.
Faulkner forwarded the draft to Harris. Harris sent Faulkner her “suggested amendments and comments”.
The following is part of the letter with Harris’ suggested edits shown in bold italics (my emphasis):

On 22 January 2025, Argus and Faulkner spoke on the phone. Faulkner told her that they were getting to the “pointy end” of the Dexus sale process and that the interested buyers were GIC and MIC, and that they wanted to meet with APAC management. Faulkner asked if Argus was open to that. She said she would be, if the Board was aware.
Following that conversation, Argus realised, for the first time, that Dexus had in mind not an internal movement of shares but a sale of APAC shares or interests in shares to external third parties. She considered that this was being progressed without notice to APAC management or the Board. She also knew that MIC and GIC were related to airlines, both of which use Melbourne Airport and that these meetings were being requested whilst negotiations for a new ASA was on foot. She was nevertheless willing to accommodate Faulkner’s request.
On 29 January 2025, Faulkner told Argus that GIC and Mubadala (ie. MIC) were flying in to Australia. She asked him to ensure that he sent a note to the Board and told him that she did not want to meet without visibility to the Board on with whom management was meeting.
On 30 January 2025, Faulkner and Argus exchanged emails. She wrote that it would be helpful to have a list of questions beforehand and for Faulkner’s assistance to manage keeping the meetings to high-level content. Argus perceived reluctance by Faulkner to share with the Board with whom management was meeting.
On 31 January 2025, Argus emailed members of the APAC senior management team, including Portelli, about a “site visit for two interested parties for the Dexus ‘block’ investment of APAC”. Portelli suggested that it would be worth asking Faulkner for a copy of Dexus’ Investment Memorandum and vendor due diligence documents provided to bidders, as he expected the parties to use such documents as triggers for management questions.
At this point, it seems, the relationship between Dexus on the one hand, and the Non-Dexus Directors and APAC senior management on the other, began to unravel.
Faulkner said that they could not provide the terms of engagement and shareholder arrangements but that JPM had offered to talk through with the APAC team the focus of the questions and areas before the meetings. Faulkner wrote:

Harris’ answer to question number one, that all parties had signed deeds of confidentiality was, she admitted under cross-examination, false. [9] None of the advisors to purchasers had signed confidentiality deeds.
At this time, Harris knew that the Standard Deed Poll was not something that Gant had approved and that the deed poll that was being used was being amended by side letter. It was put to her that a truthful statement would have been that they had complied with the strict terms of the Shareholders’ Deed by using what they understood to be an agreed pro forma which they had been amending from time to time and using side letters to further amend. She responded that “[t]hat would have been a more fulsome answer” but did not concede that it was false. [10]
In my view, in the knowledge that no record of an agreed pro forma had been found, and that the form being used was being changed in not trivial respects, including by side letter, Harris’ evidence was consciously not truthful (corroboration for this conclusion is to be found in the fact that on 21 February 2025, Harris wrote to Pask that she would not be disclosing the side letters as they were commitments by Dexus as manager).
Gant forwarded Harris’ responses to his email dated 13 February 2025 to the directors. Gant said that Harris told him that no shareholder approval of the Standard Deed Poll procedure could be found by Dexus or APAC management. The most she was able to establish at this time was an indication (presumably from Daly, whom she called on that day) that the Standard Deed Poll had been approved at an APAC Board meeting in around 2012. To state the obvious, the Board is not the shareholders.
On 14 February 2025, Elia sent an email to Faulkner and the Board. Elia took the position that the use of the Standard Deed Poll was not consistent with cl 15.4(g) and that the highly sensitive and confidential nature of the material already provided was evidenced by the questions that the prospective investors were able to raise ahead of the due diligence meeting. He thought that they appeared to have been informed of sensitive information in the LTM and other commercial-in-confidence information, including management reports (albeit redacted), financial model (albeit redacted), the shareholder model assumptions book, APAC leases and consultant reports. Elia asked Dexus for copies of all shareholder/APAC information that had been provided to third parties in the form that it had been provided (redacted or otherwise) and a list of the persons/entities who had received it. He asked that no further APAC information be shared with prospective APAC investors until the process set out in the Shareholders’ Deed had been properly followed.
Faulkner responded on the same day, unhelpfully (and in my view, disingenuously):

Argus discussed her concerns with O’Reilly and Gant. Gant said he would be happy to ask Dexus’ legal team about proposed investors’ and advisors’ confidentiality obligations. Gant phoned Harris. Her reaction was that Dexus would not be putting anything in writing for the time being, given how things had “panned out”, but was happy to verbally confirm over the phone that all relevant parties (prospective investors, advisors and consultants) are subject to confidentiality obligations in compliance with the Shareholders’ Deed.
I consider that, having been unable to find any shareholder agreement and given the pellucid terms of cl 15.4(g), Harris could not, as an experienced lawyer, have genuinely have held this view.
In a telephone conversation on 17 February 2025, Elia asked Faulkner for a response to his 14 February email.
O’Reilly says that she was keen to resolve the issue of Dexus’ compliance or otherwise with the Shareholders’ Deed, given that Dexus was maintaining it had complied with the instrument. She formed the view that the best way forward was to obtain legal advice.
On 17 February 2025, Gant instructed a law firm, Herbert Smith Freehills (HSF), to prepare an advice on the proper interpretation of cl 15.4(g), and on the duties and obligations of APAC directors in respect of the sharing of APAC’s Confidential Information.
HSF gave advice, first in draft on 19 February 2025 and in final form on 20 February 2025 (HSF Advice). The draft contained a paragraph suggesting that, where the Standard Deed Poll had been used instead of there being compliance with cl 15.4(g), the relevant shareholders and prospective Qualified Buyer purchaser should enter into a compliant deed. The advice also referred to the potential for a new confidentiality deed to be entered into. O’Reilly asked for these references to be removed, and they were. She said, and I accept, that reference to possible remediation of Dexus’ breach by execution of a further document was beyond HSF’s instructions, and any actions about the breach was a matter for the directors to consider after they had considered whether there had been a breach. The HSF Advice was circulated to the directors on 20 February 2025.
Faulkner sent a further email to Elia on 19 February 2025 (Faulkner’s 19 February 2025 Email). He wrote, relevantly:

What Faulkner did not say, but which was the fact, was that Dexus had given access to the LTM, directly contrary to the statement in Faulkner’s 19 February 2025 Email. In cross-examination, Faulkner also admitted that, in not disclosing the existence of the side letters, he was not being truthful to his co-directors. [11] I agree.
Fraser-Smith recalls thinking that he did not understand why Dexus was providing undertakings not to provide Confidential Information moving forward when confidential information had already been disclosed to third parties.
Fraser-Smith disagreed with Faulkner’s stance that all that was required was that the potential purchaser sign an appropriate confidentiality agreement, because Fraser-Smith considered that, from a commercial point of view it is necessary and reasonable to know what information is being disclosed and to whom in order to consider whether proposed terms adequately protect it.
Brentnall’s view was that there was an “unmitigable conflict” between Faulkner and Kemp’s representation of the Dexus Bloc’s commercial interests on the one hand, and their responsibility as directors of the Company on the other.
On 26 February 2025, Faulkner emailed Gant, O’Reilly and the directors making certain observations about the HSF Advice. He marked his comments “[w]ithout prejudice and confidential”. It is fair to say that the tenor of his comments was defensive of Dexus’ behaviour.
On 27 February 2025, Elia wrote to Faulkner, amongst others, observing that he did not believe that key information concerning the structure of the transaction had been forthcoming and that they had received conflicting information about whether information had been provided to entities who were only indirectly acquiring interests in Dexus managed vehicles. He observed that in the absence of visibility on how the transaction was being structured, it seemed that a reasonable inference was that information had in fact been provided to entities not directly purchasing shares, contrary to Dexus’ assertion. Fraser-Smith agreed with Elia’s points.
On 27 February 2025, APAC management met with MIC. Argus was present. A number of MIC’s consultants, including Boston Consulting Group, attended. Only publicly available information was discussed.
On 4 March 2025, Kemp emailed O’Reilly, further setting out Dexus’ position. Included in what he said was:

On 10 March 2025, Faulkner provided comments on the Board paper, as did Elia. A Board meeting was scheduled for 11 March 2025 but did not take place because O’Reilly considered that the shareholders would not reach agreement at the meeting and that it would not be productive.
On 11 March 2025, Gant gained access to the VDR. The next day, he provided an index of documents to Argus and O’Reilly, demonstrating that the VDR contained highly sensitive confidential information including an unredacted version of the December 2024 LTM Assumptions Pack, passenger forecasts, APAC monthly business review, and Safety, Risk and Compliance reports.
In the meantime, InfraBridge (which it will be recalled was a Selling Shareholder) had apparently learnt that concerns had been raised with respect to the form of confidentiality deeds poll entered into by bidders. InfraBridge wrote to the directors of APAC on 13 March 2025 expressing a willingness to implement any additional “market-standard” confidentiality protections so as to avoid disruption to the sale process which it described as “significantly advanced”. InfraBridge was, one might infer, keen to sell.
Gant forwarded the letter to Faulkner, who responded on 14 March 2025 that he was not aware that InfraBridge was planning on sending the letter and setting out what Dexus had advised the Selling Shareholders. His explanation included that the AMP Capital (now Dexus) airports team had operated on the basis that a template confidentiality deed poll was agreed between the shareholders for use in sales processes like Project Mercury, sometime between 2009 and 2014; that Dexus had the longest corporate memory of any shareholder in APAC; that others within APAC previously also recalled the deed poll being agreed; that two of the current shareholders with Board representatives became shareholders using the template; and that Dexus used the previously agreed template deed poll here, with all prospective third party purchasers signing deeds in the correct form.
Faulkner’s explanation included that it was likely that APAC would request Dexus to recall the information from purchasers who were not shareholders and that APAC indicated they were happy to have GIC and MIC participate in Project Mercury but wanted them to enter into confidentiality agreements agreed with all shareholders and wanted visibility over the information being shared and the identity of participants.
Fraser-Smith reviewed Faulkner’s explanation with regard to the InfraBridge letter of 13 March 2025. He thought the statement that the Board was happy to have GIC and MIC continue to participate in Project Mercury was untrue. He thought that Dexus’ continuing reliance on a so-called previously agreed template was inappropriate where Dexus itself could locate no evidence of such a template ever having been agreed and nobody had identified anything to suggest any template had been agreed. Fraser-Smith says that the letter heightened his level of distrust towards Dexus, Faulkner and Kemp. Brentnall considered that Faulkner had made a number of wrong or inappropriate statements namely those indicating that Dexus were providing agreed template deeds poll and that APAC was happy for GIC and MIC to continue to participate in Project Mercury.
On 14 March 2025, Argus wrote to Dexus for the attention of Fitzpatrick and Jack Woodman (Woodman):

On 28 March 2025, Kemp wrote to O’Reilly responding to her letter dated 19 March 2025, providing an explanation of the basis upon which cl 16 was to be used in the context of Project Mercury and asserting that Dexus believed and continued to believe in good faith that there was a template deed poll previously agreed for use under cl 15.4(g).
On the same day, Scott Mahony (Mahony) (Company Secretary of Dexus) wrote to Argus informing her that Project Mercury had ceased, that Dexus had requested all Confidential Information provided to prospective purchasers be returned or destroyed, the VDR had been closed and the contents deleted. The letter set out what Dexus’ approach had been to the provision of Confidential Information and in relation to shareholder information in the VDR, giving reasons why Dexus did not consider it to be commercially harmful. He also noted that various members of the GIC financial due diligence team were provided access through the VDR to the December 2024 LTM for 48 hours to enable them to verify their financial due diligence. He identified the participants in the BB phase as GIC, MIC, REST and DCIS as trustee for DWAF. The letter gave a list of parties who were said to have participated in the process and a log of all persons who accessed the VDR. It gave information about the vendor financial model which had been available in the VDR.
For Elia, these communications painted an even more concerning picture than what he had anticipated, not least of all, because GIC had been granted access to the unexpurgated LTM and he could readily identify other particularly confidential and commercially sensitive information which Dexus had disclosed. Fraser-Smith says his view continued to strengthen that he and APAC could not trust Faulkner and Kemp to keep APAC’s Confidential Information safe.
On 28 March 2025, APAC instructed solicitors, Maddocks, to obtain an opinion from NJ Young KC and E Brumby of Counsel. Counsel provided advice in conference on 3 April 2025, written advice on 4 April 2025, and a supplementary memorandum of advice on 17 April 2025 (together, the April Advice****s).
On 1 April 2025, GIC emailed Faulkner and Harris, referring to execution by GIC and DCIL of a “Confidentiality Deed Poll” and side letter, both dated 5 November 2024, and confirming that GIC had returned or destroyed all confidential information, and instructed its affiliates and advisors to do so, save as permitted by the deed poll and side letter. Faulkner responded by email on 2 April 2025, asking that they send a response in a form within an attached file. That different form, which came back from GIC on the following day, deleted reference to the side letter.
As the following Teams message to Faulkner on 2 April 2025 shows, Harris took a deliberate decision not to disclose the existence of the side letter to APAC:

Dexus submits that:
by cl 15.4, information is confidential only if it has been exchanged between parties under the Shareholders’ Deed;
on its proper construction, “under**”** means pursuant to a right given or an obligation imposed by the Shareholders’ Deed;
none of the disclosed information (including the LTM) was provided by APAC to Dexus pursuant to any such entitlement or right under the Shareholders’ Deed; and
the disclosure of the LTM and other information was therefore not in breach of cl 15.4. [12]
This contention fails on both the law and the facts.
The Shareholders’ Deed is a commercial contract. Interpreting it requires an objective assessment of what a reasonable businessperson would have understood its provisions to mean. That meaning is determined by reference to its text, context and purpose, requiring consideration of the language used by the parties, the commercial circumstances which it addresses, and the objects which it is intended to secure. Preference is given to a construction supplying a congruent operation to the various components of the whole, so as to avoid commercial inconvenience and uphold the parties’ bargain. Where language is open to more than one construction, the Court will prefer a construction which avoids consequences which are capricious, unreasonable, inconvenient or unjust (see Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109; McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at [22]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at [82]; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 at [15]; Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [47]–[51]).
The Recitals to the Shareholders’ Deed record that APAC was founded by the three Original Shareholders to bid on the Federal Government’s intended disposal of its airports. The overall commercial objective which the Shareholders’ Deed is intended to secure is the ongoing stability and profitability of the Company. Significant elements of that overall object are:
the Shareholders are to be just and faithful to each other, not act contrary to the interests of the Company, and act bona fide in good faith to advance its interests and reputation (cl 20);
shareholdings can be moved around within the groups constituted by the Original Shareholders and their Affiliates, but if shares are to be disposed of to an outsider, pre-emptive rights provisions give the existing shareholders the opportunity to acquire those shares first (cls 11, 16);
each Bloc of shareholdings is managed by one person within the Bloc, who will be the single point of contact with the Company with respect to those shares, and will exercise the rights of each shareholder in the Bloc (in the case of AMP, this will be AMP Investments, which is now DCIL) (cls 1.1 – definition of “Shareholder”, 1.3);
the Shareholders are bound to protect the Company’s Confidential Information and can only disclose it on strict terms (cls 1.1 – definition of “Confidential Information”, 15.4); and
a possible consequence of material Irremediable Breach by a shareholder is a Default Notice which can result in a forced sale of the defaulting shareholder’s shares.
The provisions of the Shareholders’ Deed must be construed accordingly.
In the context in which the word “under” is used – which determines its meaning (see Chief Commissioner of State Revenue v Uber Australia Pty Ltd (2025) 118 NSWLR 164 at [83]) – it does not require the exchange of information to have been pursuant to a right or obligation. In its context, “under” here means by virtue of the Shareholders’ Deed, or because of it. It comprehends information that has been shared because of the relationship created between the parties by the Shareholders’ Deed. All it requires is for one party to have been the source, the other to have been the recipient and the sharing to have been because of the relationship between them brought into existence by the Shareholders’ Deed. This construction is supported by the presence of the alternative qualifier “or acquired during the negotiations prior [sic] 1 November 1995” which plainly does not rest on any contractual right to receive or any obligation to give. The two concepts are linked by the preposition “or” and should be understood in the same sense – noscitur a sociis: see Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30] (Spigelman CJ); Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152.
All information, the subject of APAC’s complaint, satisfies the requirement of “under” so construed. Dexus would not have had it, were it not a shareholder party to the Shareholders’ Deed.
But if I am wrong and “under” is given the meaning contended for by Dexus, the LTM, at least, is information necessary (indeed critical) to allow shareholders to control the efficient carrying on of the business of APAC, which APAC is obliged, under cl 6.6, to ensure they receive. It is therefore information received (ie. exchanged) pursuant to an obligation on APAC to give it and an entitlement in Dexus to get it. Other information disclosed may well also qualify, for example, the report on passenger forecasts, APAC’s monthly management reports and APAC Safety, Risk and Compliance reports (see below).
Dexus breached cl 15.4.

Some factors overlap.
A breach is material if it is of substantial import or much consequence: Macquarie Dictionary Online. Conversely, it is not material if it is trivial or inconsequential. It will be material if it has serious effects on the benefits (or protections) the contract was intended to secure for the innocent party. But to be material it need not be fundamental: Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352; Androvitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212 at [88]–[92] (Redlich, Priest JJA and Macaulay AJA) and the authorities cited there, including Elders Ltd v EJ Knight & Co Pty Ltd [2009] NSWSC 1462 (Elders) at [48] (White J, as his Honour then was) and the authorities cited there; Thera Agri Capital No 2 Pty Ltd v BCC Trade Credit Pty Ltd (t/as Bond & Credit Co) [2022] NSWSC 669 (Rees J); [13] Burger King Corp v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558; Ansett Australia Ltd v Diners Club Pty Ltd [2007] VSC 102 at [192] and following (Hargrave J).
In Elders at [48], White J (as his Honour then was), in the context of breach by a lessee of a provision which deemed a change of control in the lessee to be a breach of the lease, considered it to be clear that “a reference to a material breach is only to a breach which substantially adversely affects the interests of the Lessor.”
The submission that materiality is to be equated with, or something akin to, fundamental does not accord with either the plain meaning of the word material or with authority. I reject it.
A breach is Irremediable if it cannot be remedied (it is so defined in cl 1.1). It can be remedied if matters can be put right for the future. Each case will turn on its own circumstances. It is not desirable to lay down categories of breach which are, or are not, capable of remedy (Batson v de Carvalho (1948) 48 SR (NSW) 417 per Sugarman J).
The test for materiality focuses not on the materiality of the obligation which has been breached but on the quality of the breach of the obligation, whereas the test for irremediability focuses on its effect (into the future) and not on the historical fact of its occurrence (Tricontinental Corp Ltd v HDFI Ltd (1990) 21 NSWLR 689).
Determining whether a breach is, at the same time, material and Irremediable requires an evaluative judgment.
In an oft quoted passage in Shuler AG v Wickman Machine Tool Sales Lt**d [1974] AC 235 at 250, Lord Reid said that a breach by disclosing confidential information could not be said to be remedied by a promise not to do it again (see too Force India Formula One Team Ltd v Etihad Airways PJSC [2010] EWCA Civ 1051 at [108] (Rix, Patten and Waller LJJ); Dover Fisheries Pty Ltd v Bottrill Research Pty Ltd (1994) 63 SASR 557 at 573). This Court was referred to Waters Lane Pty Ltd v Sweeney [2006] NSWSC 222 at [94] [14] (Waters Lane*)* in which Rein AJ, obiter, observed that a disclosure of confidential information could be remediable such as where the breaching party has retrieved it and obtains a binding and effective undertaking by the recipient not to use it. This just serves to emphasise that each case will turn on its own circumstances. The confined situation described by Rein AJ in Waters Lane is not a realistic comparison with what happened in this case.
In Phoenix Media Limited v Cobweb Information L**imited (High Court (UK), 16 May 2000, unreported) (Phoenix), Neuberger J (as the Master of the Rolls and subsequently President of the Supreme Court, then was) observed (at [60]):

First, I do not take what White J said in Elders to mean that state of mind, motive or subsequent concealment can never be relevant in assessing the materiality or irremediability of a breach. Whether a breach substantially affects the interests of the lessor depends on the nature of the interests and how they have been affected. An element of breach may be the presence or absence of a particular state of mind. The obligation may incorporate elements of intention, motive or integrity such as where, for example, an element of the obligation is honesty, trust, good faith or fair dealing.
Second, in my respectful opinion, Phoenix is plainly right.
Leaving aside that cl 20 imposes an overall obligation of good faith, cl 15 itself has a clear element of trust and good faith. Posit that a shareholder has Confidential Information which it is in a position to disclose without telling the other shareholders. Clause 15 would require it, honestly, to come forward and disclose what it intends to disclose so that its co-shareholders can do what is reasonably open to them by way of a deed of confidentiality contemplated in cl 15.4(g). The clause does not contemplate the discloser going behind the back of the shareholders and clandestinely disclosing the Company’s confidential information to a potential purchaser. It certainly does not contemplate a subsequent attempt at a cover-up.
An inadvertent disclosure is one thing. A deliberate or reckless one which is subsequently wholly or partially concealed, is another.
The relationship between shareholders under the Shareholders’ Deed is one of trust and confidence. APAC is tightly held. Dexus’ conduct before, during and after the breach make its breaches graver. Dexus irrevocably undermined the ongoing business relationship, trust and confidence between it and the other shareholders. APAC no longer trusts Dexus, and nor should it.
Third, even if the assessment is based solely on the nature of the information disclosed and the potential consequences of its disclosure in the hands of the Recipients, the breach here still qualifies as material and Irremediable.
I interpolate that Dexus submitted that the Default Notice says nothing about lack of trust being a matter going to the conclusion that it was in default and that is accordingly not open to APAC to support the Default Notice by pointing to a different alleged default (ie. a contravention of cl 20). It argues that APAC and the other Defendants should not be permitted to put that Dexus’ breach was deliberate because it forms no part of their pleaded case. Dexus did not complain that it had any difficulty dealing with this issue at the hearing, which was undoubtedly conducted on the basis that the issue was in play. A significant portion of APAC’s evidence dealt with Dexus’ behaviour and the loss of trust in Dexus and Dexus cross-examined the directors with the obvious goal of minimising the consequences of Dexus’ behaviour. It is to be remembered that Dexus is the moving party asserting no misconduct. The Defendants were entitled to meet that case.
Mere recitation of the:
scope of information Dexus disclosed;
spectrum of people to whom Dexus disclosed it; and
potential adverse consequences for APAC,

The LTM produces point in time financial snapshots of the Company’s whole business. It forecasts its future business performance.
It is a driver-based Excel financial model containing more than 50 sheets and thousands of individual data points and formulae.
It reveals APAC’s strategy, its risks and opportunities and the Company’s intended business response to those things.
The Master Model draws on various feeder models maintained by APAC’s various BUs. For example, APAC has an aviation BU whose feeder model forecasts international arrivals. Another BU provides projected capital expenditure on projects.
Its inputs (called drivers) are factors relevant to business performance, for example, rental rates per square metre, formulae (ie. calculations) to which the inputs are applied and the outcomes which are produced through the application of one to the other. Obviously, alterations to the drivers lead to different outputs.
Inputs include all APAC revenues, costs (capital and operating), debt and equity mix, and cost of debt. These rely on key assumptions such as passenger numbers, operating expenditure, capital expenditure and financing strategy.
It reveals the identity of APAC’s tenants, rent per square metre, size, term and rent escalations of its top-30 leases at Melbourne Airport (Fitzpatrick had questions about putting this lease information in the VDR and discussed it with Faulkner, who was comfortable with it going in the VDR). [15] It reveals the 20-year capacity and pricing plans for APAC’s car-parking business.
The LTM reveals the allocation by APAC of funds for incentives it might be prepared to give airlines.
The LTM has information related to APAC’s aviation WACC, which reflects its current return on its aeronautical assets. A skilled reader would be able to identify financial and commercial considerations which APAC might take into account in adopting a figure it might use depending on the specific context. I use oblique language to minimise risk that specific information on this topic might be used adversely to APAC’s interests.
The LTM is used to help prepare the range of negotiating parameters or “guardrails” for APAC’s negotiations with airlines, which negotiations are by all accounts, complex and hard-fought. A significant factor in the negotiations is what is considered to be an acceptable financial return for APAC.
The LTM includes a feature (designed as a hurdle) protecting access to some of its more sensitive contents. Zeng gave evidence that the protection feature can, with sufficient expertise, be overcome by a process akin to reverse engineering, or “backsolving”. It rates mention that in a meeting on 10 December 2024 between JPM and GIC representatives, JPM told GIC that they had set up the model “such that GIC can largely backsolve to an implied price path”. The reference to “the model” was either the LTM itself or the vendor model derived from it.
Dexus’ suggestion that the scope to use this information in a way materially harmful to APAC was minimal, is unrealistic.
In addition to the LTM, the following documents (amongst other things) were uploaded to the VDR, in breach of cl 15.4:
LTM assumptions packs
vendor model (all versions)
vendor due diligence reports prepared by consultants
Project Mercury Information Memorandum
Project Mercury transaction presentation
Project Mercury Property Assumptions book
APAC commissioned report on passenger forecasts
APAC monthly management reports
APAC Safety, Risk and Compliance reports.
Access may not have been given to the public at large, but it was given to no less than 137 identified individuals and 40 organisations including at least seven Dexus consultants, 19 prospective bidders, three intermediaries for indirect investors (ie. in relation to the potential DWAF sale) and 12 known advisors to bidders. The vast majority were not within, or associated with, the Dexus Bloc.
Dexus did not have any deed poll from JPM when the LTM was first disclosed to JPM. Dexus did not require confidentiality deeds from the advisors to buyers and there is no evidence that Dexus had any written agreements with them. Mercury Private, LGT Crestone and Walsh Bay Partners were given access to the VDR without any confidentiality agreement in place. Agreements were only obtained in late March 2025.
At least the following numbers of users (ie. potential purchasers and advisers, including JPM) accessed the information in the VDR:
LTM: one potential purchaser (GIC), one advisor and six vendor advisors
LTM Assumptions Packs: 25
Vendor Model (all versions): 22
Vendor due diligence reports prepared by consultants: 12
Project Mercury Information Memorandum: 35
Project Mercury transaction presentation: 32
APAC Investor Quarterly Updates: 18
Project Mercury Property Assumptions book: 12
APAC commissioned report on passenger forecasts: 20
APAC monthly management reports: 17.
It is cold comfort for APAC that access to the VDR required agreement to the Confidentiality and Data Room Protocol Agreement or that the LTM itself contained a confidentiality statement. APAC has no way of assessing the integrity of any, let alone of all, Recipients. It has no way of knowing into whose hands its information fell or whether that information was used, will be used, or how.
The controlled disclosures by APAC in the course of its own commercial dealings and negotiations is not fairly comparable with the ones Dexus made.
Dexus’ twin suggestions that it was for APAC itself to chase after Dexus’ Recipients and that it should do this to obtain a more satisfactory outcome are fanciful. In respect of the first, neither APAC, nor Dexus for that matter, would not know the universe of people after whom it should chase. In respect of the second, APAC can have no way of knowing whether, and if so to what extent, it could trust that Recipient. History has shown that it cannot trust Dexus.
Dexus’ submission that the risk of on-disclosure was low and that APAC should trust them was exploded by Elia, as the following extracts of exchanges between counsel and Elia reveal (Elia had been given a hypothetical that Qantas had received APAC’s information): [16]

The Standard Deeds Poll (read with side letters where appropriate) – which I assume were validly executed to result in binding obligations, although Dexus did not establish this – did not offer full or sufficient protection to APAC for at least the following reasons:
they did not limit dissemination to a specified group of identified people or require APAC’s consent for onwards disclosure to advisors and others;
disclosure was permissible to the Recipients’ related bodies corporate (a term which was not defined);
there was provision for the Discloser, that is Dexus, to request destruction of material, not for APAC to do so;
Recipients did not have to treat as confidential, information that they were required to disclose by any applicable law or government. Arguably, where disclosure was made to sovereign wealth funds, this exception had the capacity to undermine the destruction requirement; and
the watering down effect of the side letters was not trivial.
With respect to these instruments too, it was not incumbent on APAC to submit to interrogation by Dexus as to what was deficient about them or what revised or additional terms could or should now be agreed.
Whilst Dexus may have obtained confirmation of destruction from prospective purchasers and intermediaries (even if the confirmations are efficacious) the extent of dissemination of APAC’s material before destruction (if destruction in fact occurred) is unknown. Obtaining an ex-post facto confirmation of destruction does not remedy the disclosure.
There are significant difficulties with the notion that a hypothetical counterfactual is a useful or appropriate measure of the materiality of Dexus’ breach. This is not a case of valuing a lost commercial opportunity where the Court has to do the best it can. The Shareholders were not given the opportunity of influencing the course of events with respect to disclosure of APAC’s Confidential Information. But even if using a counterfactual in this way is appropriate, the Court is not in any position to determine, on the probabilities, what would have happened on the Counterfactual save to state that I am satisfied, having regard to the evidence in particular of Fraser-Smith, Elia and Lewis (to which further reference is made below) that the Shareholders would not have gone along with a disclosure of an unexpurgated LTM and that their refusal to do so would not have been unreasonable. On the Dexus side, Fitzpatrick was uncomfortable and concerned about providing an unredacted version of the LTM to GIC. I am also satisfied that a number of Shareholders would not have gone along with any deed poll process.
I reject Dexus’ submission that APAC or the Board displayed a lack of, or insufficient, concern as to the potential consequences of the breach because they have indicated a willingness to buy the Dexus Bloc’s shares based on the December 2024 LTM. The Fair Market Value will be determined by Deloitte. What use Deloitte makes of the December 2024 LTM is a matter for it. The potential harm caused by Dexus’ breach may not yet have come home to roost.

The Bloc Contention is:
by cl 12.1(b), a Shareholder defaults if it commits a material Irremediable Breach, in which event, the directors may, under cl 12.2, confirm the breach by special resolution and then the Board may give a Default Notice;
the Default Notice asserts breach of cl 15.4 by the whole of the Dexus Bloc;
the Shareholders’ Deed recognises the separate personality of each Shareholder, whether a member of the Dexus Bloc or not, and the Non-Selling Shareholders are separate from the Selling Shareholders;
Dexus in its own right and only on behalf of the Selling Shareholders (ie. not on behalf of the Non-Selling Shareholders), disclosed the Company’s Confidential Information. A separate submission was put by REST that the authorities and appointments conferred on Dexus under cl 1.3 did not extend to authority to breach the Shareholders’ Deed. Dexus did not, it seems, put this submission;
it follows that the Default Notice has no effect as against the Non-Selling Shareholders; and
it further follows that the Default Notice is wholly ineffective against all its objects.
The first two propositions are uncontroversial and correct.
The third is also correct but only so far as it goes. Whereas the definition of “Shareholder” in cl 1.1 recognises the reality that each Shareholder must be a different person, it does not follow that Non-Selling Shareholders are never exposed to the consequences of Dexus breaching the obligations on it as the deemed shareholder of all the shares in the Dexus Bloc.
It is not necessary to decide whether, absent the definition of Shareholder, the Non-Selling Shareholders would be responsible for Dexus’ conduct on the footing that cl 1.3, on its own, conferred on Dexus the authority to do what it did on behalf of the Non-Selling Shareholders.
It is perhaps understandable that Dexus approached the matter on the footing that cl 1.3 confers no such authority, because the preamble to the Default Notice describes the object as “[DCIL] in its own capacity and as the sole proxy and representative of the AMP Bloc”. The Defendants for their part argued that cl 1.3 conferred authority. Apparently the draftsperson of the Default Notice also thought so.
An inquiry into whether cl 1.3 (in its terms and on its own) did or did not authorise Dexus to do what it did on behalf of the Non-Selling Shareholders is something of a distraction.
The definition of “Shareholder” is dispositive of the Bloc Contention. For convenience, I repeat the definition here:

The only constructional choice, if indeed there is one, is whether references to “the Original Shareholder” are to be read as AMP (see the definition of “Original Shareholder”), or read as AMP Investments.
In my opinion it is the latter, both because that is the plain meaning and effect of the words in parenthesis, and also because that reading conduces to the congruent operation of the definition with the Shareholders’ Deed as a whole, and avoids a capricious or inconvenient result.
The plain English meaning and effect of those words is where “AMP” is the Original Shareholder, read “AMP Investments”. If not read this way, the words have no work to do.
The Affiliate Provisions provide for an Original Shareholder to transfer shares to an Affiliate which will, by cls 16.1 and 16.3, appoint the transferring Original Shareholder to be the Affiliate’s attorney, proxy and representative. Clause 16.3 (not by coincidence) uses the same parenthetical phrase as is found in the definition of “Shareholder” to the same effect (ie. where AMP is the transferor, read AMP Investments for Original Shareholder). Ordinary canons of construction require the same phrase to be given the same meaning where it variously appears in the Shareholders’ Deed: Victoria v Tatts Group Ltd (2016) 90 ALJR 392 at 401–402.
The Shareholders’ Deed contemplates that shareholdings can be held in blocs. A clear object which it seeks to secure is that the Company will deal with only one person, who will be deemed to be the shareholder of all the shares in the bloc.
The underlying commercial idea is that the person who manages the shareholding is taken to be the Shareholder. Other than in the case of AMP, that Shareholder is the Original Shareholder. In the case of AMP, express provision is made that AMP Investments (ie. DCIL) stands in its position.
The power and authority of that single point of contact shareholder, whether it be one of the Original Shareholders or AMP Investments, to bind the Shareholder vis a vis the Company with regard to rights, powers or discretions which a Shareholder may otherwise have, is buttressed by the power of attorney and proxy conferred by cl 1.3. But those powers and authorities are ones which a shareholder would itself otherwise be able to exercise in relation to its shares. That is not this case. This case is not concerned with any Shareholder exercising any power or authority in relation to a share. There is no power or authority to disclose Confidential Information and a disclosure is not, it seems to me, in relation to a share.
It would make no sense for AMP Investments to be an actual shareholder (as it turned out to be) or the holder of the powers conferred by cl 1.3 in relation to the shares transferred, but for AMP to be deemed under the definition to be the holder of all of the shares in the AMP Bloc.
No difficulty is presented where the attorney/proxy exercises powers or authorities in relation to a particular share on the Company’s register. In such cases it will designate the shares concerned, for example, when it votes them. In that case, cl 1.3 provides the authority on behalf of the particular Shareholder and dispenses with any need for the Company or any of the Shareholders to inquire as to Dexus’ capacity.
This is a different scenario. Dexus was not exercising any right, power or discretion of the type contemplated by cl 1.3. It simply breached the obligation on a Shareholder not to disclose the Company’s Confidential Information. The definition of Shareholder has the consequence that it did so as deemed Shareholder of all the shares under its management. That is, the direct consequence of the Bloc and one point of contact concepts.
If the definition of Shareholder did not operate in this way, the Company would not know, but would be bound by the fact, that internally to the Dexus Bloc, there was some limitation on or absence of authority to represent all the Shareholders whose shareholdings Dexus is managing. Responsibility for Dexus’ conduct would be determined according to who was, and who was not, intending to sell their shares, knowledge which the Company and the Non-Dexus Bloc Shareholders would not have. Who was selling could itself be a shifting position.
Faced with breach by Dexus of cl 15.4(g), neither the Company nor the Non-Dexus Bloc Shareholders would have any inkling on whose behalf Dexus was or might have been acting at the time that it breached. The Company could be drawn into internal disputes amongst the Dexus Bloc as to for whom Dexus was acting. It would put APAC and the other shareholders to enquiry, and they may not get a candid or truthful answer. Overall, it would result in the mischief of fragmentation contrary to the Bloc and one point of contact philosophy. This would be inimical to the congruent operation of the various components of the Shareholders’ Deed as a whole. It would be facilitative of a very vice the definition of Shareholder intends to avoid. It would facilitate uncommercial, inconvenient and potentially capricious operation.
Further factors support this conclusion.
First, cl 16.3 uses the same phrase in parenthesis as is in the definition of Shareholder. It provides that “[u]pon any transfer of Shares to an Affiliate, the transferring Shareholder shall procure that the Affiliate appoints the Original Shareholder who is, or who is an Affiliate of the transferring Shareholder” – and then, using the same parenthetical words, provides that “(or in the case of AMP , AMP Investments) [is] to be the Affiliate’s attorney, proxy and representative for all purposes relating to the Shares for the period that the entity remains an Affiliate” (emphasis added). This is consistent with AMP Investments being treated as the Original Shareholder.
Second, the same formulation “(or in the case of AMP , AMP Investments)” is also used in cl 16.3 to the effect that where a Shareholder transferring shares to an Affiliate is bound to procure that the Affiliate appoints the Original Shareholder who is, or who is an Affiliate of, the transferring Shareholder, in the case of AMP, AMP Investments, not the Original Shareholder, must be appointed.
Third, cl 2 provides for subscription by the Original Shareholders for shares, tied to the expected date of completion for the purchase of Melbourne Airport. Clause 2.3 provided for the Board to resolve how any unissued shares would be allotted. If there were any unissued shares to be allotted or issued, they had to be offered to the Shareholders proportionately. Clause 2.5 provided that, for the purposes of cl 2.3, AMP Investments (not AMP) could nominate an entity within the AMP Bloc to whom the offer (which would otherwise be required to be made to a shareholder within the AMP Bloc) is to be made.
Fourth, upholding the Bloc Contention would mean that, in AMP’s case, there would be an irrational split between the Original Shareholder and the Managing Shareholder, which is not the case with the other Original Shareholders.
Finally, the Shareholders’ Deed makes no provision for AMP Investments to be substituted by anyone else as sole proxy and representative. It retains that status whatever happens, consistent with it always being treated as the Original Shareholder.
In my view, the distinction between Selling Shareholders and Non-Selling Shareholders plays no role in determining the validity of the Default Notice.
It also follows that it is not necessary to consider whether the Default Notice would be valid, in whole or in part, if such a distinction was to be drawn.

Dexus’ written closing submissions articulate the “critical issue” in the Improper Motivation Contention as: “whether the Default Notice was issued as a measure genuinely directed to protecting APAC, especially its confidential information, or whether the asserted confidentiality concern did not justify that course having regard to the other options available to the Board and the serious consequences of default for the Dexus Bloc.” This is said to give rise to the further question: “whether the asserted confidentiality concern was in truth the occasion for a different objective - namely, to disable the Dexus Bloc, prevent any further reliance on cl 16, and create an opportunity for the Non-Dexus Shareholders to improve their governance or ownership position, including at the expense of members of the Dexus Bloc whom the Board knew had no involvement in the alleged breach.”
Dexus argues that:
the conduct of the Non-Dexus Directors (to whom I will hereafter refer to collectively as the Directors) was inconsistent with a genuine concern to protect APAC’s Confidential Information. If their genuine objective was to protect APAC’s Confidential Information, amongst others, one would have expected the Directors to pursue practical measures directed to that end, including requiring Recipients to assume obligations of confidence directly to APAC and require Dexus to get replacement or additional confidentiality undertakings or take further steps to secure return or destruction of remaining Confidential Information (which they did not). Support for APAC’s lack of genuine concern is argued to be found in the fact that APAC had itself disclosed the LTM to third parties in the course of its own commercial dealings and had itself not ensured adequate protections;
the Directors pursued the issue of the Default Notice to disable further reliance on the Affiliate Provisions and produce commercial and governance advantages for the Non-Dexus Shareholders; and
O’Reilly did not neutrally facilitate consideration of remedial measures but steered the process away from a remedy path towards default.
The Improper Motivation Contention is lacking in substance and is short on merit.
I observe that APAC complained that Dexus had not pleaded the improper purpose of avoiding operation of the Affiliate Provisions and put that the contention should not be entertained. The issue was, however, clearly in play and dealt with at the trial. APAC did not suggest it could not fairly deal with it.
Clause 20 does not regulate the Directors in resolving to confirm the default or to give a Default Notice under cl 12.2. The Directors are not parties to the Shareholders’ Deed. When they act under cl 12.2, they are undoubtedly bound by their statutory and equitable duties as directors but not by cl 20. Under cl 20, the parties covenant to be just and faithful to each other and not to act contrary to the interests of the Company. The reference to “parties” is not a reference to the directors.
The clause goes on to refer to the Shareholders acting in good faith to promote and enhance the interests and reputation of the Company.
Clause 12.2 provides for a confirmatory role to be played by the Board if a Shareholder is in default. The validity of such a confirmation no doubt depends on the directors exercising the power in good faith for the purpose for which it was given. But the validity of the confirmation is otherwise not subject to review by the Court. A commercial objective cl 12 seeks to achieve is to leave determination (by way of confirmation) that a Shareholder is in default, to the Board. The determination is valid unless Dexus proves the equivalent of fraud or bad faith on the part of those without whose participation the resolution would not have been adopted: Mills v Mills (1938) 60 CLR 150 at 169–170; Kelly v Raymor (Illawarra) Pty Ltd [1981] 1 NSWLR 720. It is not sufficient for Dexus to prove (which in any event it has failed to do) that there was no material Irremediable Breach. Dexus has not alleged breach of director’s duties so as to vitiate either resolution. They therefore stand.
Breach of cl 20 (if even it occurred) does not result in the vitiation of the resolutions. Compliance with (or rather non breach of) cl 20 is not a condition for the validity of a resolution.
For these reasons alone, the Improper Motivation Contention must fail.
But more profoundly, it fails on the facts.
The contention that APAC, the Directors or the Non-Dexus Bloc Shareholders committed a wrong or are seeking to take advantage of their own wrong (even if it had a role to play) has not been justified.
Before dealing with the facts, it its apt to observe that, in my opinion, neither a desire to avoid Dexus from what was considered to be its inappropriate use of the Affiliate Provisions, nor one to get a commercial advantage (if there was one) by buying shares which became available as the natural consequence of Dexus’ breach, is improper or to be equated with acting unjustly, unfaithfully, mala fides, in bad faith, or to the detriment of the interests or reputation of APAC. In the context of commercial dealings such as those under examination, they are conventional commercial considerations of which account may legitimately be taken.
But in any event, even if those considerations were improper, Dexus has failed by a wide margin to establish that the resolutions were infected by them to the point where they otherwise would not have been passed, or that the Directors, let alone a majority or all of them, were improperly motivated. To the contrary, the evidence established that they were properly motivated. Other and far more weighty considerations were the true drivers of the resolutions.
Particular considerations and the weight respectively attributed to each consideration by the individual Directors necessarily differed. Each had her or his own perspective on what Dexus had done and what appropriately should follow.
However, there was one common thread. Each concluded that Dexus had committed a material Irremediable Breach of the Shareholders’ Deed by disclosing APAC’s Confidential Information, and that the appropriate response was a Default Notice, not least of all because Dexus had betrayed their trust. These were the principal drivers of their decision and they were correct with respect to each of them.
The suggestion that they lacked genuine concern to protect the Company’s Confidential Information is far-fetched.
Two considerations focused on by Dexus were:
the possible operation of the Affiliate Provisions; and
the opportunity for the Non-Dexus Bloc Shareholders to buy the Dexus Bloc’s shares.
Attacks of varying intensity were directed at the credit of the Directors and their motivations.
It is accordingly necessary to deal in some detail with their evidence. I do so in the order in which they were called as witnesses.
I have taken all of the cross-examination into account, but have recounted only those aspects which ultimately appeared to me to play some non-trivial part in Dexus’ final submissions.

O’Reilly affirmed an affidavit on 23 September 2025.
She says that she voted in favour of issuing the Default Notice because she believed that it was in the best interests of the Company to do so. She was satisfied that Dexus had committed a material Irremediable Breach of the Shareholders’ Deed which could do significant damage to the Company which could not be remedied.
She says she believed that Dexus had breached because Dexus had disclosed APAC’s Confidential Information to third parties and its advisors via the VDR in contravention of cl 15.4, and had followed the Standard Deed Poll procedure, so that the Non-Dexus Bloc Shareholders were not given an opportunity to decide whether those deeds were satisfactory as the clause required, and to tailor the terms of any deed to the nature of the information that was being disclosed, the nature of the transaction concerned, and to the third-party who would it.
In coming to her conclusion, she says she relied on legal advice which had been received.
She believed that the breach was material and irremediable because of the extent of the disclosure, the highly commercially sensitive nature of the information (including the LTM) which exposed APAC to the risk of serious commercial harm, and because APAC could not control or know the use to which the Recipients would put the information, which could not be “unlearned or unseen”, even if later returned or destroyed. This was particularly the case because information had been accessed by persons including industry specialists and advisors who provided services to numerous airports and airlines.
Additionally, she had lost trust in Dexus, which she felt had been disingenuous with her and not transparent in its dealings with the other shareholders and the Board. Her reasons for losing trust included that Dexus had not explained the purpose of the suggested edits to the Shareholders’ Letter, Dexus’ reliance on the Standard Deed Poll where no previous approval was identified, Dexus not ensuring that all prospective purchasers signed a confidentiality undertaking before being given access to the Data Room, asserting that they had complied with the Shareholders’ Deed, and asserting that the information disclosed was generally publicly available.
She was also concerned that, if the Dexus Directors stayed on, there would be continued disruption to the Board and to APAC’s operations. She gave the example that every time Dexus was faced with a redemption request from an underlying investor, or APAC needed to raise equity from shareholders, a similar situation would arise.
She was cross-examined at length including, in some detail, on her Reflections Email of 3 May 2025.
As to the operation of the Affiliate Provisions in the event of a Default Notice, her evidence under cross-examination includes the following exchange: [17]

She was taken to where in her Reflections Email she had said “…and our concern was that this was institutional behaviour and difference of view that was likely to be repeated in the future unless it was stopped”, and to her affidavit where she had said she was concerned that, if the Dexus Directors remained, there would be continued disruption to the Board and to the operations of APAC.
As the above passages record, it was put to her that she wanted to stop Dexus using the Affiliate Provisions and she agreed that this was “absolutely one of the considerations”. [18]
However, the cross-examiner went further. It was put to her (in my view without any discernible proper basis) that her evidence was untruthful, and that where she said in her Reflections Email that Dexus’ institutional behaviour needed to be stopped, she was truly referring to Dexus’ behaviour in relying on the Affiliate Provisions. Her response was that she thought she was referring to the sharing of information. I believe her.
Dexus submitted of O’Reilly that:
she did not neutrally facilitate consideration by the Board of measures that may have addressed any confidentiality concern short of default, and that removal from the draft HSF Advice of material which may have set out a proposed remedy path was difficult to reconcile with a process genuinely directed to identifying the course best able to protect APAC’s interests;
her objective was to keep the Board focused on default rather than remediation;
she was not neutrally considering the full range of responses open to the Board; and
she was trying to bring the shareholders along and bring about an outcome she was seeking to obtain, that is, carrying the Non-Dexus Shareholders towards a preferred outcome, namely a determination that Dexus had committed a material Irremediable Breach warranting a Default Notice.
I reject these submissions.
O’Reilly was an impressive, careful and considered witness who was unshaken in cross-examination. There was no adequate foundation for the attack on her credit, and I reject it. The submission that she “steered the process away from a remedy path and towards default” does not accord with the facts. The basis for the submission was apparently her request to remove the suggested solution which had found its way into the draft HSF Advice. I have dealt with this submission above.
In her role as Chair, O’Reilly conducted herself with fierce independence, impartiality and objectivity and, if anything, with a degree of undeserved leniency towards Dexus. She kept an open mind and tried to steer the process towards consensual resolution rather than default, until the point where the various aspects of Dexus’ behaviour in breach of the Shareholders’ Deed were revealed which made it clear that Dexus was no longer worthy of trust. These are the considerations which were central to her decision to support giving the Default Notice.
She had no a priori preferred outcome and is not the representative of sectional interests.
It is to be remembered that she did not vote on the special resolution.

Lewis affirmed three affidavits, respectively, on 9 October 2025, 14 October 2025, and 2 April 2026. While appointed to the Board by IFM, as was Elia, she carries her role out separately from him.
She reached the conclusion that Dexus had committed a material and Irremediable Breach of the Shareholders’ Deed, justifying a Default Notice, relying on the legal advice that had been obtained by APAC, Portelli’s memoranda of 11 April 2025 and 14 May 2025, the information sessions described in Attachment B to the Board Minutes, correspondence which had passed between APAC and Dexus, and what was said by Kemp at the beginning of the 15 May Board Meeting.
She read the email exchanges which passed between Elia and Faulkner in February 2025, and it did not appear to her that complete responses were being provided by Dexus, in that Dexus was not fully addressing the questions asked by Elia. Her initial focus was to support APAC in obtaining complete information from Dexus, consider the mitigatory steps that should be taken, assess and minimise the harm or risk of it to APAC, and to remind Dexus of the importance of complying with the Shareholders’ Deed.
She concluded that Dexus’ breach was material on the basis of: the importance of the prohibition in the Shareholders’ Deed on the disclosure of confidential commercially sensitive information which had the potential to expose APAC and the Non-Dexus Bloc Shareholders to commercial disadvantage; the limitations placed by Dexus on on-disclosure being inadequate; her non-acceptance of Dexus’ contention that standard market practices were followed; the number of parties who participated in the VDR; two participants (GIC and MIC) having “parent sovereigns” which held interests in airlines, and with whom APAC would indirectly negotiate ASAs, and; her non-satisfaction that Dexus’ breach was inadvertent.
She concluded that the breach was incapable of being remedied because: Dexus had deprived APAC and the Non-Dexus Bloc Shareholders of the right to control APAC’s Confidential Information; she understood from discussions with Argus that some Recipients were equivocal as to whether all Confidential Information had been returned or destroyed by themselves or their Affiliates and advisors; that what had been seen could not be unseen, and; that the full extent of and consequences of disclosure might never be known.
She ultimately concluded that it was appropriate and in the best interests of APAC to issue the Default Notice. She considered, amongst others, that: Dexus had prioritised its interests over APAC’s, and the interests of other shareholders; APAC’s attempts to protect and recover its Confidential Information demonstrated the difficulty of enforcing its rights to protect it, the dissemination of which could not be undone; she believed that there had been a breakdown in trust between Dexus on the one hand and APAC management and shareholders on the other; the Directors had been entrusted with the responsibility of being arbiters of shareholder breaches, and a decision needed to be made in the best interests of APAC shareholders as a whole; similar issues could re-occur in the future if appropriate action was not taken, and; the consequences prescribed under the Shareholders’ Deed of a Default Notice served the fundamental purpose of ensuring compliance with important obligations under the Shareholders’ Deed.
The exchanges between Senior Counsel for Dexus and Lewis referred to in Dexus’ written final submissions were limited to the following: [19]

Elia affirmed two affidavits, respectively, on 1 October 2025 and 20 October 2025.
Elia says he voted in favour of the resolution to confirm a default and issue the Default Notice because he considered the disclosure by Dexus of confidential APAC information to be a material Irremediable Breach of cl 15.4(g), having regard to the legal advices listed in Attachment A to the Board Minutes, Portelli’s memoranda, the sessions listed in Attachment B to the Board Minutes, correspondence between APAC and Dexus, his own enquiries about the information disclosed by Dexus, deliberations and discussions of the Board (generally excluding the Dexus Directors) and Kemp’s presentation at the beginning of the 15 May Board Meeting.
In coming to the view that Dexus’ breach was material he considered, amongst other things, the following: there was a significant disclosure (including to GIC and MIC) including of commercially sensitive information, much of which went to the core of the Company’s business; some of it was sufficiently commercially sensitive that he would have objected to its disclosure or required appropriate steps to be taken prior to its release; APAC had been deprived of its rights to be involved in controlling dissemination of its Confidential Information; the controls and protections of the deeds poll used by Dexus were inadequate and not in compliance with cl 15.4(g); Dexus’ responses to APAC’s requests to understand and respond to the breach were incomplete, inaccurate, evasive or obfuscatory and sought to minimise or trivialise what had occurred, and; the breach was not inadvertent, accidental or unintended.
In coming to the view that Dexus’ breach was irremediable, he considered, amongst other things, that: after disclosure APAC had been deprived of its right to control its Confidential Information; the breach could not be reversed because the information was now known to a group of investors and advisors and potentially on computers and in backup systems; the information had the potential to cause harm to APAC for a significant period; the Australian aviation industry is relatively small and advisors often act for different parties over time in the industry, and; something which was seen could not be unseen, and the information had been seen by so many participants and advisors.
In coming to the conclusion that the Default Notice should be issued, he considered, amongst other things, that: the breach was very serious and if a Default Notice was not issued there was a risk that the conduct concerned could continue or occur in the future in a way that could further harm the interests or reputation of APAC; Dexus did not operate in a collaborative and prompt way with respect to the Board’s requests; Dexus and its nominee directors had prioritised Dexus’ interests over APAC’s; Dexus sought to minimise or trivialise the matter; Dexus had ignored a key provision of the Shareholders’ Deed, and; there had been an irreparable breakdown of trust with Dexus which could jeopardise APAC’s capital works program.
Elia was cross-examined at length.
The cross-examination was directed mostly to establishing that his motivation for the issue of the Default Notice to the entire Dexus Bloc was the advantage to IFM, which would have the opportunity to acquire a proportion of the Dexus Bloc shares, and that the future operation (or non-operation) of cl 16 played a material part in his decision-making.
His cross-examination included the following exchanges (most of which are footnoted in Dexus’ closing submissions):
as to the use by Dexus of the Affiliate Provisions: [22]

The thrust of Dexus’ submissions on Elia is that:
a substantial attraction of issuing the Default Notice to the entire Dexus Bloc was that it would foreclose further use of the Affiliate Provisions while at the same time creating an acquisition opportunity for IFM;
it should be inferred that once he had formed the view that Dexus had committed a material Irremediable Breach, he consistently supported the issue of a Default Notice to the entire bloc “including because that course would neutralise further reliance on cl 16”; and
his evidence should not be accepted and that the contemporaneous evidence did not support his “attempt to present himself as merely and carefully following APAC’s legal advice” (at [166(c)] of Dexus’ closing submissions).
Elia was an impressive and confident witness, self-evidently an astute director. He was entirely unscathed by the cross-examination.
His conduct throughout the transaction reflects acute perception, savviness and committed direction in the interests of the Company as was (and is) his duty. He was probably the first of the Directors to have an appreciation of the possibility that Dexus had acted in breach of the Shareholders’ Deed to the detriment of APAC.
Significantly, the submissions do not call into question his evidence (affidavit or oral) as to the matters he actually took into account in forming his view that there had been a breach, that the breach was material and irremediable, and that it was appropriate for the Default Notice to be issued.
He was aware that the operation of the Affiliate Provisions was a live issue and that one of the consequences of a valid Default Notice was that IFM would have the opportunity to acquire more APAC shares. Even if the cessation of the Affiliate Provisions was one of his drivers (which I find it was not), in the scheme of things, this was immaterial given his understanding of the nature and seriousness of Dexus’ breach and the potential adverse consequences of it for APAC. Any advantage to IFM was a consequence of issuing a Default Notice, not one of his reasons for doing it.
I reject the submission that he attempted to present himself as merely and carefully following APAC’s legal advice. His evidence was that he had regard to all of the advice that had been obtained. I believe him.

Fraser-Smith affirmed two affidavits, respectively, on 26 September 2025 and 10 October 2025. He is Future Fund’s appointee and his terms of appointment by Future Fund include that he is to act specifically without regard to its interests.
He says he had a good working relationship with Faulkner and Kemp, and trusted them.
He was aware of the negotiation of the ASAs and was conscious of the criticality of those agreements for APAC’s business. He was a member of the APAC Director Sub-Group, an informal working group of directors and APAC senior management, that meets on an ad hoc basis.
He received drafts and directors’ comments on the Shareholders’ Letter before it was sent.
Prior to February 2025, he had no concern about Project Mercury and trusted Dexus to abide by the Shareholders’ Deed and did not expect at that time that Dexus had distributed any APAC Confidential Information.
By 13 February 2025, he was becoming somewhat concerned about whether Dexus had inappropriately disclosed APAC’s Confidential Information to third parties and was concerned that Dexus was relying on assertions of agreement around 2012 on a template deed of confidentiality but could not evidence it.
He says that Faulkner’s email of 14 February 2025 that, without any admission, Dexus shareholders had complied with a process Dexus understood had been in place for a very long time, heightened his concern. He considered Faulkner’s email to be blunt and dismissive of Elia’s concerns and questions.
His impression from Faulkner’s 19 February 2025 Email was that some information disclosed might be confidential and sensitive for APAC and in many cases it was not clear what had been disclosed and what had been redacted. He was concerned about a financial model being disclosed that used the architecture of the APAC financial model and considered the email ambiguous about whether the LTM Assumptions Packs had been disclosed, or some part of them, or other assumptions had been used. He thought that Faulkner’s 5 March deadline was relatively short and that his request was unreasonable.
Fraser-Smith says he voted to confirm Dexus’ breach and to issue the Default Notice having considered all the material he was provided, including extensive written legal advice, the Portelli memoranda and additional exploration at the information sessions listed in Attachment B to the Board Minutes. As to the breach, he says that it was material for reasons including: the information disclosed was commercially sensitive and its disclosure could cause harm to APAC particularly because of the ongoing ASA negotiations; he had no reason to doubt Portelli’s description of the Confidential Information disclosed; he understood that the VDR included the headline WACC forecasts, details of incentive arrangements, allocation of corporate costs to aero and non-aero BUs which is not available to airlines or BARA as part of airline negotiations, revenue profitability and revenue price-paths by terminal and domestic carriers and forecasts of profitability.
Fraser-Smith considered it impossible for APAC to know whether the information had been shared with any counterparty or how it was being used. He was concerned that this could occur in the future. Commercially, anyone using the information would not want APAC to realise they were doing so. The Confidential Information had been made available to a very large number of entities and individuals and the particular concern of his was the disclosures to GIC and MIC. Entities with access to the VDR included consultants and business intelligence firms.
He did not consider that the deeds poll provided adequate protection for the Confidential Information and considered that the confirmations Dexus had provided did not give comfort that APAC’s Confidential Information had not been and would not be misused.
He considered that Dexus’ disclosure, as had eventually come to light, had irreparably damaged the relationship of trust between APAC management and Dexus as an organisation, and that Dexus’ breach was made more serious by its evasive conduct and incorrect, incomplete or misleading statements once its disclosure of Confidential Information had emerged in February 2025.
In exercising his discretion to vote for the Default Notice, he used his commercial judgment and understood that he had to act consistently with his directors’ duties. He took into account the legal advice that had been received by APAC. He concluded that it was in the best interests of APAC for the Dexus Bloc to cease to be a shareholder. APAC would be better placed to carry on its business effectively, including executing its plans to expand Melbourne Airport, without the Dexus Bloc as shareholders. He had a high level of confidence that the breach could not be remedied and what Dexus had done had not meaningfully mitigated it. The dissemination of documents was unknown so APAC could not control it, and even if documents were destroyed by Recipients, the information could not be forgotten by people in the industry.
Fraser-Smith was also cross-examined at some length.
The cross-examination was directed principally at establishing that the attraction of the default for Future Fund lay not merely in responding to the alleged breach but in removing the Dexus Bloc as a shareholder thereby preventing further reliance on the Affiliate Provisions and creating an opportunity for Future Fund to improve its governance position including by obtaining negative control.
The following exchanges during his cross-examination are pertinent: [27]

Brentnall swore two affidavits, respectively, on 26 September 2025 and 20 October 2025.
Brentnall says he discovered in February and March 2025 that the Dexus Bloc was proposing an external sales process to introduce new shareholders rather than a restructuring of existing interests in the Dexus Bloc, and that the Dexus Bloc had disclosed information to prospective purchasers. He referred to a number of terse and heated exchanges between Elia and Faulkner. He says he played a largely neutral role, although he tried to turn down the heat.
His evidence was that he was concerned with the insistence of the Dexus Bloc that they had acted appropriately by relying on a template confidentiality undertaking they asserted had been previously agreed by the other shareholders. He says he formed the view that they had acted in clear disregard of their obligations under the Shareholders’ Deed. He was concerned at the nature of the information that they had disclosed to a number of third parties. He had a problem with the position the Dexus Bloc appeared to take on the Affiliate Provisions. He says that he completely lost trust in what Dexus was telling them because of the manner in which he was personally misled, and only drip fed incomplete and small pieces of information, and that by the time he voted on the Default Notice he had formed the view that the Dexus Directors had acted in bad faith and had eroded their relationship of collaboration and trust to such a degree that he could no longer trust them.
His evidence was that in deciding whether to vote in favour of the Default Notice he took into account the possibility that the Dexus Bloc view of how the Affiliate Provisions operated was correct (which he did not think it was) and, even if it was, that there was a risk that the Dexus Bloc would in future continue to share Confidential Information with potential purchasers. He took the view that the Dexus Bloc’s conduct and reliance on the Affiliate Provisions was an attempt to circumvent the pre-emption rights provisions and demonstrated their willingness to advance their own interests at the expense of the Company.
By the time of the 15 May Board Meeting, he was of the view that Dexus: had misled the Board; preferred their own interest at the expense of APAC; advanced an untenable concept of affiliate transfers; deliberately refused to comply with the pre-emptive rights provisions; refused to provide relevant information in a timely fashion; relied on an outdated and unlocated template confidentiality deed without seeking consent from the other shareholders and unilaterally and materially varied that deed; provided confidential information in the VDR, and; disseminated highly confidential information that would never have been required by potential purchasers of a minority share under cl 11 of the Shareholders’ Deed or to Affiliates under cl 16.
Brentnall also relied on the legal advice that had been obtained and concluded that not only could APAC issue a Default Notice, but that it was appropriate and in its best interests to do so. He says that he did not see the issue of the Default Notice as an opportunity for TCorp to acquire a greater APAC shareholding.
It is fair to say that Dexus’ submissions on the evidence of the Directors focussed more on Brentnall than they did on the other Directors, no doubt borne of a perception that his evidence was the most advantageous to Dexus. In their submissions, they dealt with Brentnall’s evidence first, although he was the last of the Directors to testify.
The thrust of Dexus’ submissions about Brentnall is that a substantial purpose for the Default Notice was to prevent Dexus from making any further use of the Affiliate Provisions, which was also the point of “defaulting” the entire Dexus Bloc.
It was submitted that this conclusion is supported by the facts that: Brentnall accepted that he and the other the Directors were “firmly of the view” that the Dexus Bloc should not be permitted to rely on the Affiliate Provisions to introduce new investors; by 3 May 2025 at the latest, Brentnall had discussed that objective with the Directors and there was no evidence of dissent from it, and; that Brentnall understood that defaulting the entire Dexus Bloc would advantage TCorp by enabling it to obtain an additional Board seat and negative control of APAC.
Brentnall too was cross-examined at some length. He too was careful and plainly a truthful witness. I believe him. Where required to do so, he made honest concessions.
He was taken to O’Reilly’s Reflections Email and to the comment that her concern was that this was Dexus’ institutional behaviour, and that this difference of view was likely to be repeated in the future unless it was stopped. It was put to him that he understood the reference to institutional behaviour to be Dexus’ position on the operation of the Affiliate Provisions, and that he was concerned to stop Dexus in the future from attempting to act on its view.
The following exchanges during his cross-examination are pertinent: [31]

It is not necessary for present purposes to consider the outer reaches of the expressions “just and faithful”, “contrary to the interests of”, “bona fide” or “in good faith”. They encompass obligations to act openly, honestly and fairly, and not to the detriment of APAC or the other shareholders. In substance, they impose obligations analogous to those of a fiduciary: see, for example, Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) 383 ALR 577 at 583 [12] (Allsop P).
Manifestly, there was tension between Dexus’ entrepreneurial urges to sell APAC shares for the benefit of its constituents at the highest achievable price and its duty not to act contrary to APAC’s interests by disclosing its Confidential Information so as to achieve the sales outcome. Clause 15.4 provided a mechanism whereby a shareholder wishing to sell could disclose Confidential Information with the input of the other shareholders. Dexus did not follow that route and, contrary to the interests of APAC, disclosed its Confidential Information in a manner that breached cl 20 in a material way and with an irremediable loss of trust and confidence in it.
Dexus also failed to act honestly and openly towards both APAC and the Non-Dexus Bloc Shareholders by doing, or not doing, as the case may be, the following:
disclosing APAC’s Confidential Information in circumstances where it knew that cl 15 had not been, or acted in reckless disregard as to whether or not it had been, complied with;
changing the outward appearance of the LTM to disguise the fact that it had been uploaded to the VDR and providing information to GIC and MIC as to how to “backsolve” the model to an implied price path;
circumventing the password encryption of the LTM;
not disclosing that there had been unexpurgated access by GIC to the LTM;
not disclosing that it was agreeing, or had agreed to, amendments to the Standard Deed Poll;
entering into side letters, and not disclosing, but rather hiding, that fact;
asking GIC to amend its 1 April 2025 confirmation that it had returned or destroyed Confidential Information and had instructed its Affiliates and advisors to do so save as permitted by the Standard Deed Poll and side letter, by deleting any reference to the side letter;
suggesting changes to the Shareholders’ Letter without disclosing the true, and less than honest, purpose behind the edits;
falsely stating in response to Gant’s 13 February 2025 Email, that all parties had signed deeds of confidentiality; and
in Faulkner’s 19 February 2025 Email:

Dexus Capital Investment Services Pty Ltd v Australia Pacific Airports Corporation Limited

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (1)

Cases Cited (24)

JUDGMENT

introduction

SHAREHOLDINGS

the people

APAC’s Board of Directors (The Board)

APAC Senior Personnel

Dexus Personnel

THE shareholders’ DEED

The Facts

The Beginning

The Affiliate Provisions

Project Mercury Moves On

The LTM

Aeronautical Service Agreements and Terminal Facility Agreements

The VDR

The Deed Poll Misconception

The Shareholders’ Letter

Events Leading to the Due Diligence Meetings

14 February 2025 GIC Meeting

Further Consideration of the Problem

15 May 2025 Board Meeting – Decision to Confirm and Issue the Default Notice

The Default Notice

valuation

the breach contention

Breach Simpliciter

Materiality and Irremediability

the description contention

The Bloc contention

the improper motivation contention

O’Reilly

Lewis

Elia

Fraser-Smith

Brentnall

the oppressive conduct contention

cross-claims

APAC

TCorp

UTA

IFM

Future Fund

REST

Clause 20

conclusion

Endnotes

Amendments

03 June 2026