Nelson & Anor v Beach Energy Ltd

1 This is a group proceeding issued under Part 4A of the Supreme Court Act 1986 (Vic) (the Act) brought on behalf of persons who during the period between 17 August 2020 and 29 April 2021 acquired an interest in, or entered into a contract to acquire an interest in, ordinary shares in the defendant (Beach Shares),[1] and are alleged to have suffered loss or damage by reason of the defendant's misleading conduct and breach of its continuous disclosure obligations. The proceeding is fixed for an eight week trial to commence on 5 October 2026.

2 The plaintiffs seek leave pursuant to r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (Rules) to file and serve a second further amended statement of claim (2FASOC). The defendant opposes the application on the basis that parts of the proposed claim do not disclose a cause of action or would prejudice, embarrass and delay the fair trial of the proceeding.

3 After the hearing of the application, the plaintiffs submitted a further proposed version of the claim, incorporating some revisions discussed at the hearing. References to the proposed 2FASOC in these reasons are references to the revised version. Both parties provided further submission on the revised 2FASOC.

4 By way of background, the plaintiffs filed and served their expert evidence in readiness for trial, in September 2025. The defendant wrote to the plaintiffs saying that the evidence was in certain respects inconsistent with the then current pleading. The plaintiffs responded saying that they intended to seek leave to file an amended pleading 'to align with the expert evidence'. There is no dispute that the pleading should conform with the case that the plaintiffs intend to advance at trial.

5 In respect of the pleading generally, the plaintiffs submitted that their central allegations in the 2FASOC have been pleaded with increased precision and particularity in order to align the pleaded case with the expert evidence, being a report from petroleum engineer Mr Ian Sylvester (Sylvester Report), and a report from economist Dr Andrew Roper (Roper Report).[2] They submitted that the proposed amendments narrowed the issues in dispute and facilitated the identification of the real issues in controversy; that there was no undue delay or unfair prejudice. The plaintiffs notified the defendant of their amendments approximately one month following the service of their expert evidence. They contended that the amendments would not prejudice the defendant's evidence, the mediation, or the trial. The defendant raised 15 specific objections to the pleading, some of which have since been resolved.

6 These reasons address each contested part of the claim in turn.[3] While the plaintiffs bear the onus of persuading the Court that leave to amend should be granted, it is convenient to set out the defendant's position in respect of each contested issue first, in order to explain the issue in contention.

7 For the reasons that follow, leave to amend the 2FASOC in its present form is refused, noting that the difficulties with the pleading are confined to the issues discussed here. The plaintiffs will have leave to file a further pleading. I will hear the parties on the appropriate form of orders.

8 Rule 36.01(1) of the Rules provides that for the purpose of determining the real question in controversy between the parties, correcting any defect or error in any proceeding, or avoiding multiplicity of proceedings, the Court may order that that any party have leave to amend any document in the proceeding.

9 For the purposes of the issues arising on the present application, the applicable principles (which are well-established by authority) may be stated as follows.

10 In deciding whether to grant leave to a party to amend its pleadings, the Court must consider whether the proposed amendments facilitate the identification of the real issues in dispute and the just resolution of the proceeding.[4] The Court is also required to take into account the objects specified by s 9(1) of the Civil Procedure Act 2010 (Vic) (CPA)[5] and, relatedly, other principles of proper case management.[6]

11 Leave to amend will be refused where a grant of leave would be futile because the opposing party would have a good application under r 23.02 to strike out the pleading, if it were allowed.[7] Under that rule the Court may order that a pleading be struck out or amended on grounds including that it does not disclose a cause of action or defence or may prejudice, embarrass or delay the fair trial of the proceeding.[8] The purpose of the rule is to secure compliance with the rules of pleading.[9]

12 Whether a pleading is defective in accordance with r 23.02 is to be determined on analysis of the pleading rather than by reference to extrinsic evidence, although the Court may examine documents referred to in the pleadings.[10] When assessing the adequacy of a pleading the Court assumes that the party advancing the pleading can establish its allegations at trial. In Fabfloor (Vic) Pty Ltd & Ors v BNY Trust Company of Australia Limited & Ors[11] John Dixon J observed that, since the introduction of the CPA, that long-standing principle is to be understood in light of the paramount duty imposed by the CPA, on persons to whom the overarching obligations apply, not to make any claim in a civil proceeding that does not have a proper basis on the factual and legal material available to the person at the time of making the claim, and the requirement to file a proper basis certification that complies with the CPA.[12]

13 The assumption that a party can establish its allegations at trial may, however, be displaced. It will not, for example, assist a plaintiff where the pleading is plainly bad in law.[13] Nor, obviously, will it avail a plaintiff whose pleading does not disclose a cause of action, in which case the pleading would be liable to be struck out.

14 When considering whether a pleading complies with the rules of pleading the following principles, among others, are apposite:

(a) The function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court may conduct a fair trial. Pleadings, when well‑drawn, serve the overarching purpose of the CPA; [14]

(b) Every pleading must contain, in a summary form, a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));

(c) It is not sufficient to simply plead a conclusion from unstated facts. In this instance the pleading is embarrassing; [15]

(d) A pleading must be presented in an intelligible form - it must not be vague or inconsistent. Thus a pleading is embarrassing within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged. The fact that a pleading arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant; [16]

(e) Particulars are not intended to fill gaps in a deficient pleading. They serve a distinct purpose - to enable the other party to plead, clarify and confine the scope of issues, and to avoid the other party being surprised at trial. They are intended to fill in the picture of the plaintiff's cause of action or defendant's defence with information sufficiently detailed to put the other party on guard as to the case that must be met;[17]

(f) A party's right to be apprised of the nature of its opponent's case before trial must be accommodated to the nature of the case. In some cases a plaintiff will only be in a position to allege facts from which inferences may be drawn;[18]

(g) In circumstances where the defendant has exclusive knowledge of relevant facts or exclusive possession of documents, it is commonly accepted that the requirement for the plaintiff to give particulars may be postponed until after discovery, subject to the requirement that the plaintiff must have a proper basis for the allegations made in a pleading with the best particulars the plaintiff can give.[19] In considering whether to strike out a statement of claim as embarrassing, the Court should keep steadily in mind that there are other interlocutory processes subsequent to the pleadings which continue to perform and progress the function of informing the other side of the case to be met at trial;[20]

(h) In considering objections on the ground of embarrassment:

The Court should stand back and consider the pleading as a whole and in that light ask: does the case alleged give clear notice of the case to be met at trial?

This modern approach to applications to strike out pleadings on the ground that they are embarrassing is reflected in this Court's decision in CA Ballan, where the Court stated that, while important, pleadings are primarily used 'to help the parties define the real issues in dispute', while bearing in mind that pleadings are 'procedural tools only' (citations omitted);[21]

(i) The power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of, or some real embarrassment is shown.

15 Separately, a proposed pleading amendment that raises a claim (or defence) that is futile because it has no real prospects of success, will not be allowed. In Mandie v Memart Nominees Pty Ltd[22] the trial judge refused leave to amend a statement of claim on the grounds that the proposed allegations had no real prospect of succeeding at trial. The Court of Appeal rejected a submission that the judge had erred because the permissible enquiry on an amendment application was limited to whether the amendment was obviously bad in law, did not disclose a cause of action or would be liable to be struck out for failure to comply with the rules of pleading.[23] The Court of Appeal held that when considering an objection to a proposed amendment to a pleading on the basis that it would not survive a summary judgment application, the correct test is whether the amendments raise a claim or defence that has no real prospect of success, in the sense of being fanciful.[24] The Court observed:

The CP Act has changed the litigation landscape. One of the main purposes of the legislation is to reform practice and procedure in civil proceedings, including by reforming the law relating to summary judgment. More than ever, the focus is now pointedly on efficiency and cost-effectiveness, albeit that they are not the only, nor the predominant, considerations. One consequence is that amendments that might have been permitted previously may no longer be allowed. As such, the older authorities that preceded the CP Act which set out when a pleading amendment will be allowed must be approached with caution.[25]

Issue 1: 5 year Outlook and FY21 Guidance Cases

16 Relevantly (and stated generally) the plaintiffs allege that as at four points in time during the relevant period:

(a) The defendant made representations to the market concerning its guidance for FY21 for its expected production of oil, underlying EBITDA and capital expenditure (FY21 guidance), to the effect that it expected to achieve its FY21 guidance in FY21 and that it had reasonable grounds for its guidance. It also announced a 'five year outlook' (5YO) and represented that it had reasonable grounds for doing so. In fact, the FY21 guidance and 5YO could not be relied upon and the representations concerning them were misleading or deceptive. Relatedly, the defendant was aware of information concerning the FY21 guidance and the 5YO that it did not disclose but ought to have disclosed to the ASX, in breach of its obligations under s 674(2) of the Corporations Act 2001 (Cth); and

(b) the defendant made misleading representations to the market and failed to disclose material information about its oil and gas reserves, in breach of its continuous disclosure obligations (the '2P reserves estimate', the 'Western Flank 2P Oil Reserves Estimate' and the 'Western Flank 2P Gas Reserves Estimate'[26] - the oil and gas case).

17 The contested part of the pleading concerns the FY21 and 5YO contraventions, specifically whether the 2FASOC alleges any loss arising from those contraventions.

18 The relevant parts of the 2FASOC make allegations to the following effect, under the heading, 'G - contravening conduct caused loss or damage', in respect of the relevant period:

(a) The misleading conduct and continuous disclosure contraventions (the Contraventions, i.e. all of the alleged contraventions which address the oil and gas case and the FY21 and 5YO cases), separately or together, caused or materially contributed to the price at which Beach Shares traded on the ASX to be higher than their true value and/or the market price that would have prevailed but for the Contraventions or any of them (para 86);

(b) By reason of those matters (in (a)), when the plaintiffs and group members acquired interests in the Beach Shares, the price of the shares they acquired had been inflated by one of more of the Contraventions. Further or alternatively, the declines in the price of the Beach Shares were caused or materially contributed to by the market's reaction to the information contained in Beach's corrective disclosures and the Contraventions (paras 87, 87A);

(c) Further and alternatively, a reasonable reliance case is alleged - para 88;

(d) If Beach had not engaged in the Contraventions or any one or combination of them and/or disclosed the information the subject of the continuous disclosure contraventions, they would have acquired their interests in Beach Shares at a lower prevailing market price; the price of the shares would have fallen substantially; the plaintiffs and/or some group members would not have acquired interests in Beach Shares (para 89);

(e) Further, if Beach had engaged in counterfactual conduct (i.e. alternative disclosures described at counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A or 4B), then the price of Beach Shares would have declined substantially, and if the plaintiffs and group members who acquired Beach Shares would (if they decided to acquire Beach Shares) have acquired their interest in Beach Shares at a lower prevailing market price (paras 89A-89H).

19 The allegations at para 90 are in issue, so I will set them out in full:

1. By reason of the matters pleaded at paragraphs 87 (and any of 89A to 89H), and/or 87A, and/or 88, and/or 88B, and/or 89 (and any of 89A to 89H) above, the plaintiffs and each of the Group Members suffered loss and/or damage in relation to their interests in Beach Shares and/or Beach Equity Swaps as a result of the Contraventions (or any one or combination of them) as alleged in this statement of claim.

The loss suffered by the plaintiffs and Group Members will be calculated by reference to:

(i) the difference between the price at which the they (sic) acquired an interest in Beach Shares during the Relevant Period and the price at which the Beach Shares would have traded at that time had the Contraventions (or any one or combination of the Contraventions) not occurred;

(ii) alternatively, the difference between the price at which they acquired an interest in Beach Shares and/or Beach Equity Swaps during the Relevant Period, and the true value of that interest at the time of the transaction; or

(iii) alternatively, for those Group Members who would have, but for the Contraventions (or any one or combination of the Contraventions) either not purchased Beach Shares or Beach Equity Swaps or retained or acquired an alternative investment, the difference between the actual position as a result of having acquired an interest in Beach Shares and/or Beach Equity Swaps during the Relevant Period (including out-of-pocket losses) and/or the position they would have been in had they made that alternative investment (including lost profits);

(iv) alternatively, the difference between the price at which they acquired an interest in the Beach Shares and/or Beach Equity Swaps and whatever is 'left in hand', or has been realised upon a sale (including as adjusted to take into account any part of the movement in the market price of shares which did not result from the Contraventions); or

(v) alternatively, for each of the days on which they held Beach Shares and/or Beach Equity Swaps, the quantum of the negative price movement and/or the abnormal negative return following the Corrective Disclosures.

The plaintiffs claim losses under loss measure (i), (ii), (iv) and (v) above:

(A) For the purposes of loss measure (i), the plaintiffs say that the difference in price is to be estimated by reference to the estimates of share price inflation contained in the of Dr Andrew Roper dated 11 September 2025 (Roper Report) for each of Counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A and/or 4B, but they say that their claim is for a reasonable estimate of loss and does not depend on the Court making findings to the level of precision of the estimates contained in the Roper Report.

(B) For the purposes of loss measure (ii), the plaintiffs say that the true value of their interest in Beach Shares is to be estimated by reference to the estimates of share price inflation contained in the Roper Report for each of Counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A and/or 4B, but they say that their claim is for a reasonable estimate of loss and does not depend on the Court making findings to the level of precision of the estimates contained in the Roper Report.

(C) For the purposes of loss measure (iv), the plaintiffs say that the difference between the price at which they acquired an interest in the Beach Shares ($1.70) and whatever is 'left in hand', or has been realised upon a sale (including as adjusted to take into account any part of the movement in the market price of shares which did not result from the Contraventions) is to be assessed at the time of trial. At the time of this statement of claim, the price of Beach Shares is $1.21, a difference of $0.49 per share;

(D) For the purposes of loss measure (v), the plaintiffs say that the absolute and abnormal price movements experienced following the April 2021 ASX Announcement [BPT.0001.0010.1530] and the April 2021 Presentation [BPT.0001.0010.1537] are quantified in the Roper Report respectively at -24.11% ($0.405) and -23.53% (-$0.395) per share.

The losses suffered by Group Members who acquired an interest in Beach Shares and/or Beach Equity Swaps during the Relevant Period are not particularised in this statement of claim. Particulars in relation to Group Members' losses will be obtained and provided following opt out, the determination of the plaintiffs' claims and identified common issues at an initial trial and if, and when, it is necessary for a determination to be made of the individual claims of those Group Members.

20 The defendant submitted that on the face of the pleading, the FY21 guidance and 5YO cases do not disclose a cause of action because the pleading makes no allegation that by reason of the FY21 and 5YO contraventions, the plaintiffs and group members suffered loss and damage, and the allegations as presently formulated will prejudice a fair trial. In particular:

(a) On an application of this kind the Court is to assume that the facts alleged by the plaintiffs will be made out.[27] The issue is not whether the plaintiffs will come up to proof on the question of loss. Rather, the question is whether some loss is alleged. The answer to that question is no.

(b) The previous versions of the pleading (on which the plaintiffs no longer rely) advanced claims in respect of the FY21 guidance and 5YO. Those claims have been amended in the proposed 2FASOC which amends the particulars of loss for all claims, including those claims. The amended particulars (at para [90]) make reference to the plaintiffs' expert reports, which has the effect of incorporating the expert reports into the pleading, such that they become part of the pleading.[28] The stated purpose of the amendments was to bring the pleading into conformity with the evidence.

(c) The amended particulars confine the plaintiffs' loss case, such that no loss is said to have been caused by the FY21 guidance and 5YO contraventions. The plaintiffs allege that they and group members suffered loss which is to be calculated by reference to five alternative loss measures. The plaintiffs personally claim loss under measures (i), (ii), (iv) and (v), alternatively. Measures (i), (ii) and (v)[29] refer to the estimates of share price inflation and quantification of absolute and abnormal share price movements in the Roper Report (particulars A, B and D). The Roper Report attributes the whole of the alleged share price inflation and abnormal share price movement to the announcements and information concerning Beach's Western Flank 2P reserves, and not to its FY21 guidance or 5YO.[30] This can be seen most starkly in the fact that across the counterfactuals addressed in the report, Dr Roper opines that Beach's share price would have been the same in both counterfactuals that involve no change to Beach's FY21 guidance or and 5YO announcements,[31] and those where Beach never made, or alternatively withdrew, the FY21 guidance and the 5YO announcements.[32]

(d) Assuming the case as particularised will be made good, the plaintiffs do not allege that any loss was caused by the FY21 guidance and 5YO. Loss is an essential element of their causes of action. The plaintiffs contended in oral submissions that whether a contravention is causative of loss, and the quantification of loss, are separate elements of the cause of action. That submission obfuscates the issue for the Court on this application. In this context, where an allegation on its face, if accepted, would lead to the conclusion that the loss is zero, the distinction is one without a difference.

(e) If the amendments were allowed, the FY21 guidance and 5YO cases would be immediately liable to be struck out because they do not disclose a reasonable cause of action. This is accordingly a matter that is properly raised in opposition to the plaintiffs' amendment application. The plaintiffs have had ample notice of this issue, the defendant having raised this very point in correspondence of 5 November 2025.

(f) To the extent that the plaintiffs submit that it would be open to them to rely on some alternative methodology to prove and quantify its share price inflation, no such case is pleaded or particularised, and the defendant has no notice of it. The Court can only decide whether the pleading is adequate by reference to the pleading and any documents referred to in it, and the defendant is only required to meet a case at trial that is pleaded. It is not open to the plaintiffs to simply say that they rely on a reasonable estimate of loss to be determined at trial, expecting the Court to do its best.

(g) The plaintiffs point to the alleged alternative causation pathways under measure (iii) (no transaction or alternative transaction claims) and measure (iv) ('left in hand' claims, by which loss is to be measured by the difference between the price at which the plaintiffs or group members acquired an interest in Beach and whatever is 'left in hand' or has been realised upon a sale). That does not assist. The 'left in hand' approach is discussed further below. Insofar as it is relied upon in support of the FY21 guidance and 5YO cases, it is also a measure of loss that depends on establishing a diminution in value of the share prices that is causally related to the contraventions. It is accordingly bad for the same reason as measures (i) and (ii).

(h) Those measures are relevant only to individual group member claims which will depend upon idiosyncratic facts rather than market-based causation. The Roper Report is the only evidence filed and to be relied upon by the plaintiffs in respect of their claimed loss on any loss measure. The plaintiffs have not filed evidence from any other group member, such that the existence of any such person or claim is speculative and hypothetical.[33]

(i) Loss measure (v) which relies on the absolute and abnormal price movements following the April 2021 ASX announcement and the April 2021 presentation, is also predicated on the quantification in the Roper Report, as the particulars in sub-para (D) state.

(j) The maintenance of the FY21 guidance and 5YO claims is likely to cause significant additional time and cost, including consideration of complex and detailed processes which occurred over several months[34] and are the subject of tens of thousands of documents. By way of defence to the allegations that the FY21 guidance and 5YO involved contraventions of law, Beach says that it had reasonable grounds to make the representations. That defence relies on processes within Beach that underlay the guidance and outlook, including Beach's FY21 budget processes. Mr Betts said in his evidence that if required to establish its reasonable grounds defence it would be necessary for Beach, at a minimum, to tender documentary evidence in relation to each step of the processes, and that the 'further review and/or analysis of documents for the purpose of submitting a documentary tender, and the preparation of the documentary tender itself, is an extensive and time-consuming process'.

(a) On an application to amend, the test is whether the amendment is futile because it is obviously bad in law or would be liable to be struck out. Futility in this context means that the amendment introduces a patently hopeless issue for determination where the amendment has no reasonable prospect of success. The application is not one to strike out, but if it were, and r 23.02 were in play, then it would be an objection to the manner of expression of the pleading as opposed to the prospects of the cause of action.[35] The central function of pleadings is to enable the defendant to know what it is they have to meet and the trial judge to conduct a trial which is fair to all parties. Even on strike-out applications, in cases of doubt, the Court should refuse to exercise the power.[36]

(b) The defendant's contention that the FY21 guidance and 5YO cases are liable to be struck out because they do not disclose a cause of action is unavailable on this application, and is unsustainable in any event. The FY21 guidance and 5YO cases are essentially unchanged on the amendments to be made by the 2FASOC.

(c) The plaintiffs agree with the defendant that the relevant question is whether some loss in respect of the FY21 guidance and 5YO cases is alleged.

(d) The existence of loss or damage in a causal sense must be established to make out the pleaded cause of action; 'the measure of loss or damage for the award of damages is posterior'. This distinction has been recognised by the High Court (citing Cessnock City Council v 123 259 932 Pty Ltd[37]) and 'is at the core of the pending High Court appeal in Zonia Holdings Pty Ltd v Commonwealth Bank of Australia'. For the latter proposition the plaintiffs referred to the case number of the application for special leave in Zonia, but gave no citation to any decided case, or any other reference. Further, the distinction is 'evident in the statutory provisions relied upon'. For that proposition the plaintiffs referred in a footnote to ss 1041I and 1317HA of the Corporations Act. The argument was unelaborated. The plaintiffs said that the defendant points to no authority that the proposition is unarguable or indeed incorrect.

(e) On the face of the 2FASOC, some loss is alleged in respect of the FY21 guidance and 5YO cases. The various allegations of causally connected loss are each expressed by reference to 'the Contraventions', of which the FY21 guidance and 5YO cases are a part (2FASOC, paras 87-89). By para [90] the plaintiffs make a further express allegation that they and group members suffered loss, before claiming (at paras [91]-[92]) that they are entitled to compensation. The averment in paragraph 90 is, 'by reason of the matters pleaded at [referenced paragraphs] the plaintiffs and each of the group members have suffered loss and/or damage in relation to their interests in Beach Shares as a result of the Contraventions (or any one of them)'. The defendant must accept the averment, which has always been there, for the purposes of the application to amend. In assessing whether the pleading discloses a cause of action, the allegations of fact in a pleading, including the existence of loss or damage, are assumed to be true.[38] It follows that what is pleaded is a complete cause of action. The particularisation of the measure of loss, including 'references to some of the evidence which will be relied upon to prove that particularised loss' (the Roper Report) does not alter the analysis. Questions of fact should not be finally determined on a pleadings summons and the quantum of loss to be assessed is a matter for evidence. The particulars to paragraph [90] concerned only the approaches to measuring loss or damage - not the allegation that there is loss.

(f) As to the references to the Roper Report in the particulars to para [90]:

(i) The particulars (for measures (i) and (ii)) state that the price difference or true value of the plaintiffs' interests in their Beach Shares 'are to be estimated by reference to the estimates of share price inflation contained in the [Roper Report]'. Under those measures, Dr Roper's estimate of $0.395 is 'the starting point for estimating loss' and 'at trial, the Court will be presented with a range of materials, including Dr Roper's Report and analysts reports, and submissions on these approaches to measuring loss'. The reference to analysts' reports was elaborated by a footnote to the plaintiffs' submission which read, 'as endorsed by the Full Court of the Federal Court in Zonia Holdings Ltd v Commonwealth Bank of Australia Ltd'.[39]

(ii) In respect of measure (v) (particular D), 'the absolute price movement ($0.405) are relied upon'.[40]

(iii) The defendant refers to the attribution analysis in the Roper Report. Attribution is not necessarily only an expert question; it is partly a question of law. Further, Dr Roper's view that 'the abnormal stock price decline ... was substantially if not entirely, caused by Beach's downgrade of its Western Flank 2P reserves on 30 April 2021', must be read in context. The Roper Report discloses that Dr Roper used material beyond his event study to engage in an attribution exercise, including analysts' reports, which do not unequivocally state that 100% of the $0.395 abnormal price decline was related to the 2P reserves issue.[41] Dr Roper opines that stock analysts changed their valuation of Beach's western flank operations in response to Beach's disclosures about the quantum of 2P reserves on 17 August 2020 and 30 April 2021. By reference to the reasoning in the Roper Report at [157], [158] and [169], there is likely to be substantial debate at trial as to whether Dr Roper's methodology is sound, and even so, where within the range of between 40.5% of $0.395 (~$0.16) and the maximum ($0.395), economic analysis supports attribution to the 2P reserves case. There will then be debate as to whether the balance of the abnormal return is attributable to the FY21 guidance and 5YO cases, or whether there is a confounding information problem.[42] Further, because the central elements of the FY21 guidance and 5YO cases are matters that investors forecast and rely on to assess the value of Beach's stock, inflation associated with the 2P reserves case may in fact overlap with the inflation associated with the other cases such that they each independently but concurrently result in the same inflation being removed at the end. But that is not the same as saying that counterfactually, two of them did not lead to any inflation. In short, the defendant is wrong to say that Dr Roper concludes that the FY21 guidance and 5YO cases occasion zero loss.

(iv) The defendant impermissibly invites the Court to engage in an examination of the merits of the foreshadowed case. The Court should not rule now on what Dr Roper's opinion is but if it does, the highest this could be put is that Dr Roper has not separately measured the inflation arising from the FY21 guidance and 5YO cases. That is not the same as concluding that there is no loss caused by the FY21 guidance and 5YO, given that group members may have reliance-based cases, and loss-measurement cases such as the left-in-hand measure, which do not depend on Dr Roper's attribution opinion at all.

22 In my view there is sufficient ambiguity in the pleading of the FY21 guidance and 5YO cases to conclude that that part of the pleading may prejudice, embarrass or delay the fair trial of the proceeding. The difficulties arise from the articulation of the loss caused by the Contraventions alleged in respect of the FY21 guidance and 5YO cases, rather than from the allegations of Contravention. However, loss is an essential element of each cause of action and the claims must be considered as a whole. For the reasons now discussed, the pleading of those claims (the FY21 guidance and 5YO cases) do not fairly put the defendant on notice of the claims advanced against it, which are claims for recovery of the amount of loss or damage suffered by the plaintiffs (in the first instance) as a result of the defendant's alleged Contraventions.[43]

23 Before addressing the substance of the difficulty, several things must be said about the proper framing of the issue.

24 First, by reference to the principles set out earlier, to the extent that the plaintiffs contend that the question of whether, if leave were granted, parts of the pleading would be struck out as embarrassing or as failing to disclose a cause of action do not arise on an application for leave to amend, that contention is erroneous. To the extent that the plaintiffs contend that they were not on notice of the issues now in dispute, that contention is factually unfounded. The issues were raised in correspondence from the defendant in November 2025.

25 Second, both parties rightly accept that the issue is to be decided by construing the pleading. In that exercise, the Court is required to consider documents incorporated into the pleading. The particulars given under para 90 are not, as some parts of the plaintiffs' submissions infer, mere information about approaches to proof that the plaintiffs might take at trial. Properly understood, the references to the Roper Report in the pleading function as a means of particularising the plaintiffs' loss claim and in so doing, incorporate the report as a document into the pleading. So much is apparent from the language of the particulars to para 90. That paragraph alleges that 'by reason of [the matters alleged] the plaintiffs and each group member suffered loss and/or damage in relation to their interests in Beach Shares as a result of the Contraventions (or any one or of combination of them) as alleged in this statement of claim'. The particulars under para 90 state that the loss suffered by the plaintiffs and group members 'will be calculated by reference to' five alternate 'loss measures'. Particulars of the plaintiffs' claimed losses are then given, introduced by the words, 'the plaintiffs claim losses under loss measure (i), (ii), (iv) and (v)'. What follows under sub-paragraphs (A) to (D) is the particularisation of the quantum of the plaintiffs' own claims, on those alternative measures. By way of example, particular (A) states in part, 'for the purposes of loss measure (i), the plaintiffs say that the difference in price[44] is to be estimated by reference to the estimates of share price in inflation contained in the of [sic] Dr Andrew Roper dated 11 September 2025 for each of the counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A and/or 4B.[45] The difference in price (measure (i)), the true value of the plaintiffs' interest in Beach Shares (measure (ii)), and the absolute and abnormal price movements relied upon in measure (v), are not particularised elsewhere or by reference to anything other than the Roper Report. It is not possible to say what amount of loss the plaintiffs are claiming under those heads, save by reference to the Roper Report.

26 On this application, the plaintiffs submitted that the Court ought not 'determine what Dr Roper's opinion is', engage in an assessment of the merits of the case, or make findings on contested matters of fact or law that are matters for trial. Those points are correct as far as they go. But the plaintiffs' attempt to avoid examination of the content of the Roper Report sidesteps the fact that the plaintiffs have deployed the report to particularise their loss claims. As a result, in considering whether the pleading is, as the defendant claims, embarrassing (or fails to disclose a cause of action), it is necessary to have regard to what the Roper Report states, on the basis that it is a document that is taken to set out the quantification of the plaintiffs' claimed losses in the respects identified in the pleading. The Roper Report is not 'evidence' before it is adopted and tendered at trial. The present exercise is not undertaken for the purpose of making findings of contested fact, but rather to comprehend what is said by way of particulars.

27 The manner in which the plaintiffs have deployed the Roper Report in the pleading is thus apt to lead to confusion. That form of pleading may be commonplace but it is undesirable. Had the plaintiffs instead set out the matters of fact, inference and conclusion by which to particularise their claims (even if taken from the Roper Report) instead of referring in a rolled up way to the Report, confusion of this kind would be avoided. The plaintiffs are not to be criticised for their intention to bring the pleading into conformity with their evidence. But the manner in which that has been done has led to interpretive disputes and a lack of clarity about the case that the plaintiffs intend to advance.

28 Third, because particulars are intended to limit the claim to which they are attached, to clarify and confine the scope of the issues and avoid the opposite party being surprised at trial, both the allegations of fact and the particulars of the pleading are to be considered when determining whether the pleading is embarrassing, and whether it fulfils the essential requirement of giving clear notice of the case to be met at trial.

29 Turning to the allegations of loss, it is to be recalled that the 2FASOC sets out the particulars of the plaintiffs' personal claims. That it does so is in keeping with the typical approach in group proceedings whereby the plaintiffs' personal claims are tried as a vehicle through which to determine common questions, and for the purpose of the plaintiffs seeking a judgment in their favour. In respect of the claims of group members, the pleading states that the losses suffered by group members 'are not particularised in this statement of claim'.

30 In respect of pleaded loss measures (i) and (ii), the price difference (between the price at which the plaintiffs acquired their Beach Shares and the price at which they would have traded had the Contraventions not occurred) and the true value of their Beach Shares is to be 'estimated by reference to the estimates of the share price inflation contained in the Roper Report'. The relevant parts of the Roper Report, to which the parties referred, are set out in the Annexure to these reasons. Dr Roper was asked whether the information identified in the counterfactuals with which he was instructed[46] was material in the relevant sense; whether the disclosure of the information by Beach related to the counterfactuals on 30 April 2021 had an effect on the price of Beach Shares traded on the ASX, and if so, in what magnitude; and whether the price at which Beach shares traded on the ASX was affected if the scenarios in the counterfactuals occurred, and if so, by what magnitude.[47] Relevantly the Roper Report:

(a) States that the counterfactual information in all counterfactuals describes information indicating that Beach's 2P reserves were overstated during the relevant period. Counterfactuals 1A, 1B, 3A and 3B alone also describe information indicating that Beach did not have a reasonable basis to issue its FY21 guidance and its 5YO;[48]

(b) States conclusions that:

[155] The event study analysis above of Beach's stock price response to its 30 April 2021 disclosures shows that Beach's stock price experienced a statistically significant $0.395/share abnormal decline on 30 April 2021. The fact that this $0.395/share price decline is statistically significant indicates that some new and unexpected bad news about Beach caused its stock price to decline by $0.395/share. But what was the news that caused this decline?

[156] While Beach disclosed different pieces of new and unexpected information (described in Section VI.A.3) that, in theory, could have contributed to this statistically significant stock price decline, economic research and the market evidence collected indicate that Beach's abnormal stock price decrease of $0.395/share on 30 April 2021 was substantially if not entirely caused by Beach's disclosure that it had downgraded its Western Flank 2P reserves by 24.8 MMboe...

[165] In my opinion, Beach's disclosures on 30 April 2021 substantially or entirely caused Beach's stock price to decrease by $0.395/share on 30 April 2021. Specifically, in my opinion, Beach's stock price decreased by $0.395/share on 30 April 2021 because Beach disclosed that it had downgraded its Western Flank 2P reserves by 24.8 MMboe. I base this opinion on the results of my event study regression model presented in Section VI.A.4.b, and the market evidence demonstrating how stock analysts changed their beliefs about the value of Beach's Western Flank operations in Section VI.A.3.b.

(c) Estimates the same per share inflation for counterfactuals 1 and 2, using both of the methodologies that are employed (market model inflation estimate and analyst-consensus based inflation estimate).[49] It will be recalled that counterfactual 1 assumes a change of position on FY21 guidance and 5YO but counterfactual 2 does not.

31 The Roper Report states, plainly enough, the conclusion that Beach's abnormal share price decline of $0.395 per share on 30 April 2021 was 'substantially if not entirely caused by Beach's disclosure that it had downgraded its Western Flank 2P reserves'.

32 It is true that the Roper Report does not state in terms that FY21 guidance and 5YO conduct had no impact on Beach's share price. That said, some conclusions may be drawn about the content of the Roper Report for present purposes.

33 First, the defendant's contention that the share inflation estimates in the Report are consistent with the conclusion that estimated inflation was the price decline was wholly attributable to the 2P reserves downgrade is plainly an arguable construction of the Report, for the reasons the defendant submits.

34 Second, as the plaintiffs emphasise, the Report does traverse the fact that stock analysts' beliefs about the price or value of Beach's stock were revised downwards, attributable to their lower valuations of Beach's Western Flank operations, and states (among other things) that according to their own estimates, 'their changed valuation opinions can ... explain 40.5% to 144% of the $0.395/share abnormal stock price decline on 30 April 2021' and that 'the consensus estimate of the analysts' change in the value of Beach's Western flank operations can explain 78.5% of Beach's abnormal decline on this day'.[50] I note that Dr Roper goes on to explain the significance of those facts by saying, 'in other words, the facts of this case indicate that stock analysts changed their beliefs about the value of Beach's Western Flank operations because of the downgrade in the Western Flank 2P reserves, and they changed their beliefs about the Western Flank operations' value by an amount that can either entirely or substantially explain Beach's $0.395/share abnormal decline on 30 April 2021'. The plaintiffs submit that 'there is likely to be substantial debate at trial as to whether Dr Roper's methodology is sound, and even so, where within the range of between 40.5% of $0.395 (~$0.16) and the maximum ($0.395), economic analysis supports attribution to the 2P reserves case. There will then be debate as to whether the balance of the abnormal return is attributable to the FY21 guidance and 5YO cases, or whether there is a confounding information problem'. Pointing to a debate that may occur at trial and an argument that might be available on inferences drawn from parts of the reasoning in the report of the plaintiffs' expert, does not avail the plaintiffs on this application. Even on a generous reading for the plaintiffs, it must be accepted that the Roper Report does not explicitly or positively conclude that share price inflation in the relevant period was caused by the FY21 guidance and 5YO conduct. Further, those omissions must be read in light of the positive conclusions that the Report does set out, in respect of the 2P reserve downgrades, which tend against that proposition. Whether, when the plaintiffs call Dr Roper to give evidence and he is examined and cross-examined, he agrees with the plaintiffs' contentions, remains to be seen. What might then occur is beside the point on the present application. Further and significantly, the Roper Report certainly does not quantify any inflation attributable to the FY21 guidance or 5YO conduct. To contend that a case might be open to be made on inferences from certain evidence, at trial, is not the same as concluding that it has been adequately pleaded.

35 It may be accepted that there are legally recognised techniques, apart from event studies, that may be relied upon to allocate an identified abnormal return to different pieces of information. Those techniques include the quantitative and qualitative analysis of analysts' forecasts.[51] Such material might support a quantification of loss by refence to share price inflation. It may be accepted that the principles applicable to the ascertainment of loss in cases of this kind have only been considered in a handful of decided cases. It may also be accepted that the plaintiffs advance an arguable (although abstract) proposition when they submit that inflation associated with the 2P reserves case may in fact overlap in this case with inflation associated with the other cases such that they each independently but concurrently result in the same inflation, and that different counterfactuals resulting in the same nominal loss does not mean that no loss was suffered in relation to particular elements of the counterfactuals.

36 None of that assists, because the plaintiffs' pleaded case has two relevant features. On the one hand it is said positively that the quantified share price inflation of $0.395 per share was substantially if not entirely attributable to the 2P conduct. On the other hand, assuming it is open, by drawing inferences from certain parts of the Roper Report and other material, to build a case attributing part of the abnormal return to the FY21 guidance and 5YO cases, that case has not been pleaded. The defendant is not given notice of it. The result of the particularisation of the loss case is, at best, confusion. The present pleading would not provide a proper basis on which the Court may conduct a fair trial about losses claimed to have been caused by the FY21 and 5YO contraventions.

37 The plaintiffs' contention that they may rely on the Roper Report as a 'starting point' to quantify losses, and call in aid the facilitation principle discussed in Cessnock City Council v 123 259 932 Pty Ltd,[52] is inapposite. What is required at this stage is that the pleading gives adequate notice of the case advanced, including on the question of loss.

38 It may be accepted that the analysis of loss in this context may involve estimation and will not inevitably yield 'mathematically rigorous exactitudes'.[53] It must also be accepted that at trial, it is for the Court to make findings quantifying loss if it gets to that point, and not for the Court simply to adopt the opinion of an expert. Neither of those facts undermine the requirement to put the claim on a proper footing in the pleading. As the authorities establish, considerable factual complexity, such as exists in this case, heightens rather than detracts from pleading requirements.[54]

39 It may be accepted that a distinction may be drawn between the fact or existence of loss, and its quantification. The plaintiffs submitted that 'on the face of the 2FASOC, some loss is alleged in respect of the FY21 guidance and 5YO cases'. The various allegations of causally connected loss are each expressed by reference to 'the Contraventions', of which the FY21 guidance and 5YO cases are a part. As a literal reading of those allegations, that is correct. Let it be assumed that the allegation of 'some loss' may constitute a complete cause of action. The question of whether the pleading, which includes the particulars, serves the ends of pleading, is not properly answered only by pointing to the allegation that 'some loss' was caused. The plaintiffs do not advance a claim for nominal damages or seek to establish contraventions to be quantified in a later trial. In parts of the pleading they do allege that they suffered 'some loss'. But when one asks, as the defendant and the Court are entitled to ask, 'what loss?', the answer is found in the particulars given under para 90. No case is advanced, as particularised, in relation to what loss flows from the FY21 guidance and 5YO contraventions. As the defendant submits, where the loss case is particularised in the way that it is, it is not meaningful to contend that the pleading is adequate because 'some loss is alleged'.

40 Separately, it is true that the plaintiffs personally seek damage on the basis of the individual reliance measure (para 88) and the 'left in hand' measure. The fact that the plaintiffs advance other loss measures does not detract from the embarrassment caused by the manner in which the inflation based measures of loss are advanced, where it is plain that the plaintiffs will be advancing an inflation based case at trial, in order to establish findings for the benefit of group members.

41 The plaintiffs should have leave to replead their loss case. The better course is to refuse leave in respect of the present form of the pleading rather than to grant leave subject to adequate particularisation of loss. The question is one of form in the sense that it concerns the adequacy of the pleading, but the difficulties discussed go to matters of substance.

42 At para 28(a) of the 2FASOC, Beach's 'FY21 guidance' is defined by the allegation that in connection with the release of its financial results on 17 August 2021 Beach provided guidance for FY21, including that Beach expected to achieve production of between 26 and 28.5 MMboe, underlying earnings before interest, taxes, depreciation and amortisation (underlying EBITDA) of between $900m and $1 billion and capital expenditure of between $650m and $750m. Accordingly, the defined expression 'FY21 guidance' which subsequently appears throughout the pleading (save in respect of the counterfactuals), includes three elements.

43 The defendant observes (correctly) that the counterfactuals to which the Roper Report is addressed define Beach's FY21 guidance as limited to 'underlying EBITDA of $900M to $1B', omit the element of production and capital expenditure, and that the Report addresses only the EBITDA component of the FY21 guidance. The defendant then submits that if the FY21 guidance case is maintained (contrary to its submission in relation to issue 1) then the plaintiffs must be understood as advancing a case of inflation-based loss arising only from the announcements made concerning EBITDA. As I understand it, the point is that the relevance of the allegation that the FY21 guidance included the elements of production and capital expenditure, is not apparent on the pleading when regard is had to the loss plea.

44 The plaintiffs repeated their submissions on issue 1, stating that 'the defendant's position as to whether the pleaded claims are supported by evidence are properly matters to be determined at trial, once the evidence has been heard and tested'.

45 As discussed under issue 1, the question is not whether the allegations come up to proof but whether they are adequately pleaded.

46 This aspect of the defendant's submissions overlaps with its submissions on issue 1, the predicate of which is that the claim does not articulate any loss arising from the FY21 guidance case at all. The plaintiffs' submissions did not address the relevance of the production and capital expenditure elements of the FY21 guidance case, or the significance of the disparity between the content of the guidance as defined in the pleading and articulated in the counterfactuals to which the loss claim is addressed. I note that the counterfactuals as now incorporated at paras 89A, B, E and F of the 2FASOC define FY21 guidance consistently with those addressed in the Roper Report.

47 In consequence of my ruling on issue 1, the plaintiffs will be required to re-plead their loss claim in respect of the FY21 guidance case. The newly pleaded case should address the disconformity between the definition of FY21 guidance at paras 28(a) and 89A, B, E and F, and the basis of the quantification of the loss claim.

48 Issues 5, 6 and 7 concern the pleading of the counterfactuals.

49 A brief history of this issue gives context to the present form of the pleading.

50 When the matter came on for hearing, the then current pleading did not contain what now appears at 2FASOC paras 89A-H. The defendant's complaint was that as a matter of principle the plaintiffs were required to plead all material facts constituting statutory causes of action of the present kind, including any counterfactual, citing Berry v CCL Secure Pty Ltd[55] (per Gageler and Edelman JJ) as follows:

A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the statutory cause of action, including any counterfactual on which that plaintiff relies to establish the requisite causal link between identified loss or damage and identified misleading or deceptive conduct. In the same way, a defendant resisting the statutory action should be expected to plead any different counterfactual on which that party might rely to deny the causal link. Unless and to the extent that the parties choose to depart from the pleadings in the way they go on to conduct the trial, choice between the competing pleaded counterfactuals on the balance of probabilities should then exhaust the fact-finding that is required to be undertaken by the court on the issue of causation.[56]

51 The plaintiffs had submitted that 'the counterfactuals the defendant is to meet at trial are the counterfactuals instructed to and addressed by Dr Roper and those counterfactuals are predicated on the allegations in the 2FASOC' and that 'the counterfactuals on which the plaintiff relies for its market-based causation case have been distilled and grouped into those addressed by Dr Roper' (the Roper Counterfactuals).

52 The defendant submitted that if the plaintiffs intended to rely on the Roper Counterfactuals then those counterfactuals, and no other counterfactuals, should appear in the pleading. However, the pleading did not contain the Roper Counterfactuals. Rather, in respect of paras 59-75 (the misleading or deceptive conduct contraventions) and paras 77-82 (the continuous disclosure contraventions) a causation of loss case was pleaded at paras 85-89. That causation case did not correspond with the Roper Counterfactuals. Furthermore, because it did not marry with the Roper Counterfactuals on which the plaintiff relied to quantify their loss, those allegations were not alleged to lead to any quantified loss and thus did not disclose a cause of action and were likely to cause prejudice, delay and embarrassment in the proceeding. That was exacerbated by the use of broad and vague language in the allegations of contravention, such as the contention at para 60 that the August 2020 representations were misleading or deceptive because they did not 'incorporate or alternatively adequately incorporate' the facts identified in that paragraph.

53 In the course of the hearing, the plaintiffs initially contended that the 'causal pathways' reflected in the Roper Counterfactuals were captured by the pleading, without using the explicit language of 'counterfactual'. Then they said they would incorporate the Roper Counterfactuals into the pleading, which they subsequently did.

54 In relation to the present pleading the plaintiffs now say:

(a) The addition of paras 89A-H confines the plaintiffs' market-based causation allegations at paras 87, 89(a) and 89(aB). Each of those paragraphs is to be read with paras 89A-H, which are not put in the alternative;

(b) The plaintiffs' claims are predicated on both market-based causation and individual reliance. Dr Roper's evidence 'is not the only evidence of loss-quantification'[57] and 'the plaintiffs cannot constrain the individual causation cases of the group members'.

(a) Said that the pleading did not, as the plaintiffs submitted, delimit the market-based causation allegations at paras 87, 89(a) and 89(aB). The pleading is ambiguous and embarrassing in this respect;

(b) Submitted that because the plaintiffs have retained the allegations in addition to the Roper Counterfactuals, they appear to reserve to themselves the opportunity to run a case outside the Roper Counterfactuals. It is not apparent what that case is;

(c) Maintained its objections to the counterfactual allegations at paras 85-90 and the related contravention allegations on the grounds that they did not sound in any loss and adopted vague language in parts.

56 As to the market-based causation case, although the plaintiffs have said on this application that they intend to confine their causation allegations by the addition of paras 89A to 89H, that intention is not made clear on the language of the pleading and in this respect the pleading is ambiguous and does not give clear notice of the case to be met.

57 On the question of causation the plaintiffs relevantly allege:

[86] During the Relevant Period, each of the: (a) (b) the Misleading Conduct Contraventions; and/or the Continuous Disclosure Contraventions, (together, the Contraventions) separately or together caused or materially contributed to the price at which Beach Shares traded on the ASX to be higher than their true value and/or the market price that would have prevailed but for the Contraventions (or any of them).

[87] By reason of the matters alleged at paragraph 86 above, at the times during the Relevant Period when the plaintiffs and each of the Group Members acquired an interest in, or entered into a contract to acquire an interest in Beach Shares, the price of the shares they acquired had been inflated by one or more of the Contraventions.

[89] If Beach had not engaged in the Contraventions of any of one or any combination of the Contraventions and/or disclosed the information the subject of the Continuous Disclosure Contraventions:

(a) the plaintiffs and group members would have acquired their in interests in Beach shares at a lower prevailing price;

...

(aB) the price of Beach shares and/or the value of Beach Equity Swaps would have fallen substantially.

58 Para 89 is followed by the newly inserted paras 89A-H which set out the Roper Counterfactuals. In each case the relevant counterfactual (1A, 1B, and so on) is introduced by the words,

Further to paragraphs 87, 89(a) and 89(aB), if Beach: ...

59 Each of paras 89A to 89H is said to be in the alternative to the other.

60 In my view, the insertion of the Roper Counterfactuals in the pleading in that way does not convey with any degree of certainty that the counterfactuals expressed at paras 87, 89(a) and 89(aB) are intended to be confined by what appears at paras 89A-H. The two sets of counterfactuals are plainly not identical, and the plaintiffs did not contend that they were. In fact, in respect of their relevance to the non-market-based causation pathways, the plaintiffs seek to maintain those paragraphs, the implication being that they have significance for the plaintiffs' causation case. The relationship between those two sets of allegations is expressed by the word 'further', which does not itself do the work of confining paras 87, 89(a) and 89(aB) by reference to paras 89A-H.

61 The particulars to para 90 at A to D refer to the estimates of share price inflation contained in the Roper Report 'for each of counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A and/or 4B'. The reference to those counterfactuals in that context, is insufficient to confine or explain the implications of the counterfactual allegations at paras 87, 89(a) and 89(aB).

62 The plaintiffs' intention to limit their market-based causation claim to the Roper Counterfactuals has not been embodied unambiguously in the pleading and must be re-articulated in order to give proper notice of the case to be met at trial.

63 Turning to the plaintiffs' submission that they and group members also advance an individual reliance-based causation case. Broadly speaking it may be accepted that allegations in the pleading apart from the Roper Counterfactuals may be relevant to a reliance-based loss claim. The plaintiffs' own reliance-based claims have not been quantified in any evident way. The plaintiffs' submissions on this point were skeletal. I can say only that in re-pleading the plaintiffs must make clear the case that they intend to bring on reliance-based loss.

64 The particulars to para 90 at sub-paras (A) and (B) state that for the purposes of loss measures (i) and (ii) respectively, the price difference or true value of the plaintiffs' interests in Beach Shares is to be estimated by reference to the estimates of share price inflation contained in the Roper Report, 'but they say that their claim is for a reasonable estimate of loss and does not depend on the Court making findings to the level of precision contained in the Roper Report'. The defendant objects to the italicised words, which fail to give Beach adequate notice of the case it must meet, rendering the allegations embarrassing.

The Roper Report is the starting point for estimating loss under measures (A) and (B). At trial, the Court will be presented with evidence, including Dr Roper's Report and analyst reports, and submissions on the various approaches to measuring loss which are pleaded and particularised. The precise measure of loss is a matter for trial.

66 In my view, the italicised words introduce impermissible ambiguity into the pleading. As discussed in relation to issue 1, the true function of the reference to the evidence in para 90 is particularise the quantum of the claim. It is unclear what the italicised words mean. To the extent that, as the plaintiffs' submissions suggest, their purpose is to state that at trial the Court arrives at an assessment of the quantum of the plaintiffs' loss on the inflation measure having considered the evidence and submissions, they have no place in a pleading. To the extent that they are intended to otherwise qualify the particularisation already given, the raise the question, 'what case is being advanced?' As discussed in relation to issue 1, what is meant by relying on the Roper Report as a 'starting point', in the absence of any other pleaded quantification, is at best unclear. It may be accepted that the analysis of loss in this context may involve estimation and will not inevitably yield 'mathematically rigorous exactitudes', and will involve the Court carrying out its function in assessing loss in the ordinary way. Those facts, and the fact that the Court may ultimately reach a different assessment of loss compared with that advanced by the plaintiffs, does not undermine the requirement to put the claim on a proper footing in the pleading. This is particularly so where the Court will be required to embark on an assessment of loss in a case of factual complexity.

67 If the plaintiffs consider that in giving notice of their claim in the pleadings a qualitative description is required, having regard to alternative means of establishing loss beyond the expert opinion that they have incorporated into the pleading, a more informative description beyond the words that presently appear, is required.

68 The defendant objected to particular (v) of paragraph 90, which states that the loss suffered by the plaintiffs and group members will be calculated by reference to:

(v) alternatively, for each of the days on which they held Beach shares and/or equity swaps, the quantum of the negative price movement and/or the abnormal negative return following the corrective disclosures.

For the purposes of loss measure (v) the plaintiffs say that the absolute and abnormal price movements experienced following the April 2021 ASX Announcement and the April 2021 presentation are quantified in the Roper Report respectively, at -24.11% ($0.405) and -23.53% (-$0.395) per share.

(a) There was nothing in the Roper Report to support the proposition that the quantum of the negative price movement or the abnormal negative return calculated by Dr Roper on 30 April 2021 was caused by the alleged contraventions. Taken at its highest, the extent of Dr Roper's evidence is that $0.375 of any such return is attributable to the alleged failure to make the alternative 2P Reserves disclosures reflected in the counterfactuals;

(b) Assuming the outcome of the calculations in the Roper Report are proved, there is no allegation of loss caused by Contraventions other than an alleged failure to make the alternative 2P Reserves disclosures reflected in the counterfactuals. If the plaintiffs intended to advance a case based on the quantum of the negative price movement or the abnormal negative return, it is unclear what it is.

71 The plaintiffs submitted that, whether the quantum of the negative price movement or abnormal negative return following the corrective disclosure as calculated by Dr Roper is recoverable, is a matter for trial.

72 In my view the defendant's first submission goes to the merits of the contention advanced by particular 90(v) as to the availability of loss measure (v), as opposed to whether the pleading is properly formulated. The defendant did not contend that this paragraph would not survive a summary judgment application. The defendant's first and second submissions overlap with its contentions in respect of issue 1, which have been addressed. There is no basis on this application to disallow sub-para (v) of the particulars to para 90.

The loss suffered by the plaintiffs and group members will be calculated by reference to:

..

(iv) alternatively, the difference between the price at which they acquired an interest in the Beach shares and/or Beach energy swaps and whatever is 'left in hand' or has been realised upon a sale (including as adjusted to taken into account any part of the movement in the market price of shares which did not itself result from the Contraventions;

...

The plaintiffs claim losses under measure (i), (ii), (iv) and (v) above.

...

(C) For the purposes of loss measure (iv), the plaintiffs say that the difference between the price at which they acquired an interest in the Beach Shares ($1.70) and whatever is 'left in hand', or has been realised upon a sale (including as adjusted to take into account any part of the movement in the market price of shares which did not result from the Contraventions) is to be assessed at the time of trial. At the time of this statement of claim, the price of Beach Shares is $1.21, a difference of $0.49 per share;

(a) The plaintiffs sought to rely upon the left-in-hand measure of loss by the amendments made on 28 January 2026. This amendment raises a new substantive case, at a late stage of the proceeding without any explanation for the lateness;

(b) The legal principles to be applied in relation to the 'left in hand' measure of loss are as summarised in Viterra Malt Pty Ltd v Cargill Australia Ltd,[58] citing Potts v Miller.[59] It is necessary for the purpose of this measure to distinguish between the kinds of cause occasioning a deterioration or diminution in value. If the cause is inherent in the thing itself, its existence should be taken into account in arriving at a real value of the shares at the time of the purchase; if the case is extrinsic or supervening, it is not the consequence of the conduct. Two qualifications to that rule apply. The first is that if the market is distorted by fraud or some other improper practice, the market value of the shares may be disregarded. The second is that the real value of what the plaintiff received must be ascertained in light of the events which happened afterwards which may show that at the time of their acquisition the assets of the company did not correspond in true value to the money paid. Accordingly, the focus on whether the cause of the value of the shares 'left in hand' is independent, extrinsic, supervening or accidental, requires an assessment of the cause occasioning the deterioration or diminution of the value of the shares, including by reference to subsequent events. A distinction is drawn between subsequent events that arise from the nature or use of the thing itself, and those that affect the value of the thing but arise from sources supervening upon or extraneous to the defendant's conduct.[60] As the plaintiffs' own pleading recognises, the requirement to take into account movements not resulting from the Contraventions is an inherent part of the claim;

(c) The plaintiffs bear the legal onus of proving that the identified loss and damage has been suffered by the contravention of which they complain, and of establishing the amount of loss or damage. The plaintiffs bear 'the ultimate burden of establishing both the required connection with the contravention and quantum by inferences drawn from the whole of the evidence. The evidentiary burden may shift, but the legal onus is constant'.[61] It is not open to the plaintiffs as a matter of law to say that merely by pleading the allegation in the form they have pleaded it, that the burden is cast on the defendant;

(d) The plaintiffs have filed no evidence to make out a claim for loss under the left-in-hand measure. They have filed no evidence in relation to subsequent movements in the price or value of Beach Shares after 20 April 2021. The proposed plea would raise new issues concerning subsequent movements in the price or value of Beach Shares in the approximately 5 years since 30 April 2021, the reasons for such movements and the extent to which they relate to the alleged contraventions, and the reasons for and reasonableness of the plaintiffs continuing to retain their shares since 30 April 2021. In those circumstances the plea is bound to fail;

(e) It is prejudicial to the defendant to be put to the forensic task of deciding whether to attempt to adduce evidence and if so, to prepare that evidence, in the absence of any case articulated by the plaintiffs and any attempted proof, as a result of which the plaintiffs' case is not exposed. Mr Betts' evidence was that the Beach share price has varied significantly and frequently since the plaintiffs' acquisition of the shares. Regard must be had to the principles established by AON Risk Services Australia v Australian National University.[62] In considering whether to grant leave to a party to amend a pleading it will be relevant to consider the extent of delay and costs associated with the amendment, the prejudice that flows from the amendment, the parties' choices thus far in the litigation, the explanation for delay in applying for leave, and detriment to other litigants in the Court;

(f) That the claim is bound to fail, the unexplained lateness, and the prejudice to the defendant in having to meet a case which is both unarticulated and devoid of relevant proof provides ample reason to refuse leave to amend.

(a) Said positively in their oral submissions that they intended to rely only on the current price of the plaintiffs' shares at trial to establish their claim on this basis;

(b) Initially submitted in conjunction with that position, that the defendant bore the burden of pleading and proving that the decline in the value of the shares after the date of acquisition was attributable to exogenous or extraneous causes. That submission was later withdrawn;

(c) Submitted that for the defendant to succeed in arguing the 'left in hand' plea is bound to fail, it must establish the left-in-hand measure is unarguable in the sense it has no real prospect of success. Whether the quantum of damages calculated under the 'left in hand' measure is recoverable by the plaintiffs and group members is a matter for trial.

76 Particular (C) of the particulars to para 90 advances a quantification of the claim for the plaintiffs personally. It may be distinguished from the general articulation of loss measure (v) which may be relied upon by group members in later stages of the proceeding. For the following reasons I consider that the plaintiffs' own claim as pleaded in its present form and the circumstances established on this application, has no real prospects of success in the sense discussed in Mandie v Memart Nominees Pty Ltd[63] and the authorities to which it refers:

(a) As the defendant submitted, and by reference to the authorities to which it referred, it is necessary for the purposes of establishing quantified loss on the 'left in hand' measure, to distinguish between the kinds of causes occasioning diminution in value of the asset in question. If the cause is inherent in the thing itself, its existence should be taken into account in arriving at the real value of the shares at the time of the purchase; if the cause is extrinsic or supervening, it is not considered to be a consequence of the conduct. The plaintiffs did not contest those principles. To the contrary, the form of their pleading recognises that the requirement to take into account movements in value not resulting from the defendant's conduct when relying on this measure. The allegation under particular (C) is that,

The plaintiffs say that the difference between the price at which they acquired an interest in the Beach Shares ($1.70) and whatever is 'left in hand', or has been realised upon a sale (including as adjusted to take into account any part of the movement in the market price of shares which did not result from the Contraventions) is to be assessed at the time of trial (emphasis added).

(b) The plaintiffs did not assert that they rely on any qualification to the propositions discussed in Potts v Miller and the cases applying that case. Given the challenge to this part of their claim, were they intending to so rely, it was incumbent on them to so contend.

(c) The plaintiffs have not positively alleged that the whole of the decline of the share price between the time of acquisition of their share (in April 2021) and the time of trial (a period of more than five years) is attributable to the defendant's conduct or was inherent in the asset.

(d) The plaintiffs did not contest that they bear the legal onus of proving that the identified loss and damage has been suffered by the contravention of which they complain, and of establishing the amount of loss or damage. They raised that point then properly abandoned it.

(e) In those circumstances, the plaintiffs have said positively that they will not rely on any evidence other than the share price at trial. On this point their position was stated in stark terms.

(f) Assessing that claim, on that evidence, a Court could not properly proceed by fixing on the value of the asset left-in-hand merely on the basis of the difference between the value of the share at the date of acquisition and at the date of trial, and without regard to necessary interrogation of value by reference to the principles in Viterra Malt Pty Ltd v Cargill Australia Ltd. The Court could not properly do so on the basis that unless the defendant proved to the contrary, the value would be established in that way.

77 In those circumstances it would be relevantly prejudicial to the defendant to have to embark upon proving that the decline in value of the shares was attributable to other causes, against the possibility that the plaintiffs might later seek to advance a different case.

78 Leave is refused to rely on particular (C) to para 90. That is not to say that had the plaintiffs sought to engage with a left-in-hand measure of loss in a different way that it would necessarily have been foreclosed to them on an amendment made at this point in time, noting that the trial will not commence until October 2026. Leave to re-plead will extend to this part of the plaintiff's claim.

79 Any question of prejudice arising from a re-pleading will be assessed in light of any re-pleading that is advanced.

[12] In Section VI.A.4 of this report, I describe how event study analysis and my analysis of stock analysts' reactions indicate that Beach's stock price increased when Beach disclosed on 17 August 2020 that its 2P reserves had increased. I also show how the event study analysis and my analysis of stock analysts' reactions indicate that Beach experienced a $0.395/share abnormal stock price decline that was substantially, if not entirely, caused by Beach's downgrade of its Western Flank 2P reserves on 30 April 2021.

[13] In Section VI.B, I describe how, in my opinion, Beach's disclosure that it had downgraded its Western Flank 2P reserves by 24.8 MMboe on 30 April 2021 substantially or entirely caused Beach's stock price to decrease by $0.395/share on 30 April 2021.

[15] The counterfactual information in Counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A, and 4B in Annexure B describes information indicating that Beach's 2P reserves were overstated during the Relevant Period. For example, Counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A, and 4B describe information that corrects Beach's allegedly false and misleading statements on 17 August 2020 that it had 2P reserves of 352 MMboe by replacing the original disclosure with a corrected disclosure...

[16] Counterfactuals 1A, 1B, 3A, and 3B, in addition to describing the alleged overstatement of Beach's Western Flank 2P reserves, also describe information indicating that Beach did not have a reasonable basis to issue its FY21 Guidance (i.e., FY21 EBITDA Guidance of $900 million to $1 billion) and 5-Year Outlook ("5Y Production Outlook") on 17 August 2020....

[136] In this section, I demonstrate how, consistent with economic research, Beach's stock price increased when Beach disclosed that its 2P reserves had increased on 17 August 2020, and how Beach's stock price decreased when Beach downgraded these 2P reserves on 30 April 2021. Specifically, my event study analysis indicates that Beach's stock price changed rapidly and fully as expected in an efficient market to reflect new, unexpected, and value relevant news published on 17 August 2020 and 30 April 2021. On both days, Beach disclosed new, unexpected, and value-relevant information about the quantum of its 2P reserves in its Western Flank operations, along with other news. On both days, the change in Beach's stock price was statistically significant and the change was in the direction expected given the news about Beach's 2P reserves.

[137] However, on both days, Beach also disclosed other news, some of which was related to the information in Counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A, and 4B, and some of which was not, as described in Sections VI.A.3.a and VI.A.3.b. While the event study results alone cannot directly establish that the entirety of Beach's stock price increase on 17 August 2020 or the entirety of its stock price decrease on 30 April 2021 were caused by the new information about the quantum of Western Flank's 2P reserves, the market evidence demonstrating how analysts changed their valuation of Beach's Western Flank operations in response to Beach's disclosures about the quantum of 2P reserves on 17 August 2020 and 30 April 2021 supports that these changes in stock price were substantially caused by Beach's disclosure of new unexpected information about the quantum of its 2P reserves.

[147] As described below, in my opinion, the event study analysis and market evidence indicate that Beach's abnormal stock price increase of $0.124 on 17 August 2020 was substantially caused by Beach's disclosure that its 2P reserves had increased to 352 MMboe despite production, including a 13 MMboe increase in the 2P reserves of the Western Flank. In my opinion, the event study analysis and market evidence also indicate that Beach's abnormal stock price decline of $0.395 on 30 April 2021 was substantially, if not entirely, caused by Beach's disclosure that it had downgraded its Western Flank 2P reserves by 24.8 MMboe.

[152] As described in Section VI.A.3.b, on 30 April 2021, Beach disclosed new information that is part of the counterfactual information described in Counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A, and 4B, related to the alleged Western Flank 2P oil and gas reserves overstatement, including that Beach: (a) had downgraded its Western Flank 2P oil reserves by 17.6 MMboe and its gas reserves by 7.2 MMboe, (b) had withdrawn its 5Y Production Outlook, and (c) again revised downward its FY21 EBITDA guidance.

[153] My event study regression results in Exhibit C indicate that Beach's stock price decreased by a statistically significant amount in response to these disclosures. To examine whether this stock price response was rapid and full as expected in an efficient market, I plot over time the Cumulative Abnormal Return predicted by my event study of Beach's share price following Professor MacKinlay's method describe above.

[155] The event study analysis above of Beach's stock price response to its 30 April 2021 disclosures shows that Beach's stock price experienced a statistically significant $0.395/share abnormal decline on 30 April 2021. The fact that this $0.395/share price decline is statistically significant indicates that some new and unexpected bad news about Beach caused its stock price to decline by $0.395/share. But what was the news that caused this decline?

[156] While Beach disclosed different pieces of new and unexpected information (described in Section VI.A.3) that, in theory, could have contributed to this statistically significant stock price decline, economic research and the market evidence collected indicate that Beach's abnormal stock price decrease of $0.395/share on 30 April 2021 was substantially if not entirely caused by Beach's disclosure that it had downgraded its Western Flank 2P reserves by 24.8 MMboe. As described in Section VI.A.2, economic research predicts that a decrease in an oil and gas exploration and production company's reserves is the type of bad news that would cause investors to revise downward their beliefs about the production and profit capabilities of such a company and ultimately the value or price of the company's stock. Consistent with this economic research, as described in Section VI.A.3.b, market evidence indicates that 10 out of 11 stock analyst decreased their price targets for Beach Shares, and eight out of eight stock analysts that valued Beach's Western Flank operations separately decreased their valuations of the Western Flank.

[157] The market evidence described in Section VI.A.3.b also shows that stock analysts' beliefs about the value or price of Beach's stock were revised downward by between $0.16/share and $0.57/share attributable to their lower valuations of Beach's Western Flank operations. According to the stock analysts' own estimates, their changed valuation opinions can hence explain 40.5% to 144% of the $0.395/share abnormal stock price decline on 30 April 2021. The typical stock analyst decreased the value of Beach's Western Flank operations by $0.31/share. This consensus estimate of the analysts' change in the value of Beach's Western Flank operations can explain 78.5% of Beach's abnormal decline on this day.

[158] In other words, the facts of this case indicate that stock analysts changed their beliefs about the value of Beach's Western Flank operations because of the downgrade in the Western Flank 2P reserves, and they changed their beliefs about the Western Flank operations' value by an amount that can either entirely or substantially explain Beach's $0.395/share abnormal decline on 30 April 2021.

[165] In my opinion, Beach's disclosures on 30 April 2021 substantially or entirely caused Beach's stock price to decrease by $0.395/share on 30 April 2021. Specifically, in my opinion, Beach's stock price decreased by $0.395/share on 30 April 2021 because Beach disclosed that it had downgraded its Western Flank 2P reserves by 24.8 MMboe. I base this opinion on the results of my event study regression model presented in Section VI.A.4.b, and the market evidence demonstrating how stock analysts changed their beliefs about the value of Beach's Western Flank operations in Section VI.A.3.b.

[169] As described in Section VI.A.4.b, in my opinion, the market evidence compiled from stock analysts and my event study indicate that Beach's stock price decreased by $0.395/share on 30 April 2021 substantially or entirely because of the fact that Beach disclosed that it had downgraded its Western Flank 2P reserves by 24.8 MMboe. While Beach did disclose other new, unexpected, and negative news that could in theory have contributed to this price decline (as described in Section VI.A.3 above), the market evidence compiled in Section VI.A.4.b suggests that 78.5% of this $0.395/share decline can be explained by the fact that Beach's Western Flank operations would no longer include the value contribution of 24.8 MMboe in 2P reserves. In addition, as indicated in Section VI.A.4.b, the fact that Beach had needed to downgrade its Western Flank 2P reserves led some market participants to question Beach's corporate reputation and its disclosures about its other reserves and to further discount their valuations of Beach.

[182] In this matter, I train my event study on 30 April 2021 for the purpose of measuring the change in Beach's stock price when Beach downgraded its Western Flank 2P reserves because the information in Counterfactuals 1A and 1B describes an overstatement in these reserves. My event study and analysis of stock analysts' commentary indicated that Beach experienced a statistically significant abnormal stock price decline of $0.395 on 30 April 2021 that was substantially if not entirely caused by Beach's downgrade of 24.8 MMboe of its Western Flank 2P reserves. My market model approach uses the stock price decline caused by this downgrade to inform an estimate of the stock price decline that would have resulted had Beach disclosed (as proposed in Counterfactuals 1A and 1B) that it only had 332.5 (or 328.5) MMboe in 2P reserves, with only 26.5 (or 22.5) MMboe in the Western Flank.

[184] The Market Model Inflation Estimate of $0.375/share measures the change in Beach's stock price that was substantially if not entirely caused by Beach's downgrade on 30 April 2021 (scaled to remove the effect from the over disclosure of the additional 1.3 MMboe in reserves downgraded relative to the alleged overstatement). The Market Model Inflation Estimate assumes that this per-share inflation that was removed on 30 April 2021 would have been removed earlier if Beach had disclosed the information in Counterfactuals 1A or 1B.

[195] Figure 10 illustrates the Market Model Inflation Estimate and the Analyst Consensus-Based Inflation Estimate of the per-share inflation that would have been removed from Beach's stock price during the Relevant Period had the information in Counterfactuals 1A or 1B been disclosed as described.

[204] Counterfactuals 2A and 2B differ from Counterfactuals 1A and 1B. Specifically, unlike Counterfactuals 1A and 1B, Counterfactuals 2A and 2B do not indicate that Beach also issued its FY21 EBITDA guidance and its 5Y Production Outlook without having a reasonable basis to do so on 17 August 2020, and that Beach revised its FY21 EBITDA guidance on 15 February 2021 without having a reasonable basis for this revision. Counterfactuals 2A and 2B only specify the counterfactual disclosures describing the overstatement of Beach's Western Flank 2P reserves from Counterfactuals 1A and 1B.

[205] The Market Model Inflation Estimate and the Analyst Consensus-Based Inflation Estimate do not separately measure inflation resulting from the additional information in Counterfactuals 1A and 1B, specifically, Beach's issuance of the FY21 EBITDA guidance and its 5Y Production Outlook lacking a reasonable basis on 17 August 2020, and Beach's revision of its FY21 EBITDA guidance on 15 February 2021 lacking a reasonable basis. As described in Section VI.A.2, economic research demonstrates how investors rely on information about the quantum of a company's reserves to inform their estimates of the firm's production and profit-making capabilities. As such, the Market Model Inflation Estimate and the Analyst Consensus-Based Inflation Estimate related to Counterfactuals 1A and 1B also provide a reliable range for the per-share inflation that would have been removed from Beach's stock price had the information in Counterfactuals 2A and 2B been disclosed as described.

[206] Figure 11 illustrates the Market Model Inflation Estimate and the Analyst Consensus-Based Inflation Estimate of the per-share inflation that would have been removed from Beach's stock price during the Relevant Period had the information in Counterfactuals 2A or 2B been disclosed as described.

[1] The interests in respect of which the claim is brought comprise fully paid up ordinary shares in Beach traded on the Australian Stock Exchange (ASX), Beach equity swaps and American Depository Receipts that represent ordinary shares in Beach. Nothing on this application turns on differences between those classes of interests. For simplicity, I refer in these reasons only to Beach Shares, omitting refence in the pleading to distinctions between the different interests.

[2] The Roper Report is dated 11 September 2025.

[3] The issues that remain in dispute are those numbered in accordance with the parties' joint table submitted to chambers dated 31 March 2026.

[4] Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2) [2020] VSC 284, [14] citing Cargill Australia Limited v Viterra Malt Pty Ltd (No 18) [2018] VSC 772, [31]-[34].

[5] Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [25] (Billington v Sussan).

[6] Billington v Sussan, [25]-[26].

[7] Fabfloor (Vic) Pty Ltd & Ors v BNY Trust Company of Australia Limited & Ors [2016] VSC 99, [47] (Fabfloor).

[9] Meckiff v Simpson [1968] VicRp 7; [1968] VR 62, 70, referring to r 27, a predecessor of r 23.02.

[10] The Rules, r 23.04(2); Fabfloor, [47]; Hong Kong Bank of Australia Ltd v BPTC Ltd (in liq) (1995) Aust Torts Reports 81.

[11] Fabfloor (Vic) Pty Ltd & Ors v BNY Trust Company of Australia Limited & Ors [2016] VSC 99.

[12] Fabfloor, [43]-[45]; CPA, ss 18, 42.

[13] Fabfloor, [45], citing Commonwealth v Verwayen (1990) 170 CLR 394, 456.

[14] Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580 (Andrianakis), [50] citing Wheelahan v City of Casey [No 12] [2013] VSC 316.

[18] Andrianakis, [55]-[56] and the cases cited there.

[19] See Murphy v Victoria [2014] VSCA 238; (2014) 45 VR 119 and the authorities discussed there.

[21] Andrianakis, [52]-[53] and the cases cited there.

[22] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 (Mandie v Memart Nominees Pty Ltd).

[23] Mandie v Memart Nominees Pty Ltd, [37]-[41].

[24] Mandie v Memart Nominees Pty Ltd, [47].

[25] Mandie v Memart Nominees Pty Ltd, [43]-[44].

[26] The pleaded representations and information include revisions thereof, in some cases.

[27] Citing Niven v Grant [1903] VicLawRp 54; (1903) 29 VLR 102, 106.

[28] Citing Hong Kong Bank of Australia Ltd v BPTC Ltd (in liq) (1995) Aust Torts Reports 81.

[29] See under 2FASOC, [90], as set out above.

[30] Roper Report, [12], [13], [147], [156], [158], [165], [169], [182], [184].

[31] Roper Report, Annexure B, pages 118-123, Counterfactuals 2 and 4.

[32] Roper Report, Annexure B, pages 118-123, Counterfactuals 1 and 3.

[33] See further below under Issue 15, on the 'left in hand' measure.

[35] Citing Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2) [2020] VSC 284, [143]-[19]; Australian and Pacific Investment Corporation Pty Ltd v Jeshing Property Management Pty Ltd (No 3) [2025] VSC 358 at [18(b)] (Cosgrave J).

[36] Citing BFJ Capital Pty Ltd v Financial Ombudsman Service Limited (In Liq) [2019] VSC 71, [35].

[37] Citing Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 281 CLR 39, [7] (Gageler CJ).

[38] Citing Re Annesley Plant Hire Pty Ltd [2014] VSC 56, [106].

[39] Zonia Holdings Ltd v Commonwealth Bank of Australia Ltd [2025] FCAFC 63, [595].

[41] Referring to [137], [157]-[158], [169].

[42] The relevant parts of the Roper Report are set out in the Annexure to the these reasons.

[44] I.e. the difference between the price at which they acquired an interest in Beach Shares during the relevant period and the price at which Beach Shares would have traded at that time had the Contraventions not occurred.

[45] The qualification that follows that statement is addressed separately below.

[46] Counterfactuals 1A, 1B, 2A, 2B, 3A, 3B, 4A, 4B, as now incorporated into the 2FASOC.

[49] Roper Report, [195], figure 10, [206] and figure 11.

[51] See Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Ltd [2025] FCAFC 63, [593]-[601]; Crowley v Worley Limited (No 2) [2023] FCA 1613, [256]-[258].

[52] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 281 CLR 39. See Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Ltd [2025] FCAFC 63 (Zonia Holdings), noting that special leave to appeal to the High Court was granted in Zonia Holdings Pty Ltd v Commonwealth Bank of Australia [2026] HCATrans 8 (13 February 2026). See more recently, a decision delivered after judgment was reserved on this application, Southernwood v Brambles Limited (No 3) [2026] FCA 418, [4070]-[4073], [4153]-[4157].

[54] See also the observation in Zonia Holdings at [601] which, although made in the context of proof of loss, are also apposite in relation to pleading.

[55] Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151.

[56] Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151, 190 [72]. See also Richmond Valley Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761, [130].

[57] This was a reference to the potential reliance at trial, on analysts' reports and the like, as was submitted in relation to issue 1.

[58] Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157; (2023) 74 VR 1, 153[820] - 188[1087].

[59] Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, 298-299.

[60] See Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281, 291.

[61] Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157; (2023) 74 VR 1, [871]-[872], [1123].

[62] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [5], [93], [95], [100], [102], [108], [112], [114]

[63] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 (Mandie v Memart Nominees Pty Ltd).