Plaintiff v Defendant

3 Under the SSA, entered into on 11 October 2022, the purchase price predominantly comprised an upfront payment of $75 million plus a potential deferred 'Further Payment' calculated by reference to TCN's 2022 earnings and breakage. Breakage - unspent money on expired gift cards that TCN retains - is TCN's major revenue source.

4 As most of the gift cards sold by TCN are valid for three years from the date of purchase, the total breakage amount can only be calculated with certainty after the end of 2025. Nevertheless, the starting amount on a gift card and the current total amount on that card can be quantified at any point in time. It is therefore possible to estimate at an earlier stage based on amounts already spent and statistical models of historical gift card spending patterns the amount of breakage likely to ultimately result.

5 The SSA established a multi-stage process for calculating the Further Payment, extending from 2022 through to final determination by 31 December 2025. At each stage, InComm was required to provide Indi with calculations 'together with supporting information, calculations and documentation'. The parties could dispute calculations and, if disagreement persisted, refer the matter to an independent accountant for final determination.

6 Indi contends that InComm has failed to provide the information and documents it is contractually entitled to receive. It seeks access to:

(a) underlying source data from TCN's management systems (Source Data);

(b) the instructions and specifications given to Card Compliant LLC (Card Compliant), the consultant engaged to estimate breakage (the Breakage Brief);

(c) the actual reports prepared by Card Compliant; and

(d) various supporting documentation identified by Indi's expert accountant as necessary to verify InComm's calculations.

7 InComm's position is that it has fulfilled its disclosure obligations under the SSA. It contends that the phrase 'supporting information, calculations and documentation' does not extend to Source Data or the Breakage Brief, that it has provided the Card Compliant reports (in the form of spreadsheet extracts), and that Indi's requests are either unreasonable or made outside the applicable contractual time limits.

8 Richard Hewitt and Nicholas Sims founded TCN, trading as The Card Network, in 2019. Its business was the sale of gift cards redeemable at certain retailers throughout Australia.[1]

9 As described above, gift cards sold by TCN are typically valid for three years from the date of issue. Upon expiry, any unspent money on the gift card, or breakage, is in most cases kept by TCN. Breakage is the major source of revenue for TCN, with the remainder being commission paid to TCN upon redemption of a gift card at a retailer.[2]

10 TCN gift cards can be purchased in physical or digital form, with the amount chosen by the customer loaded onto the gift card by TCN. TCN sold gift cards through various avenues, which it organised internally under several different 'sales channel' labels. These channels included a 'grocery' channel for gift cards sold through Coles, Woolworths, Big W and Target, and a 'B2B' channel for gift cards sold to a variety of corporate clients.[3]

11 TCNAdmin is TCN's central internal management system in which TCN aggregates and records multiple sources of gift card data.[4]

12 The information within TCNAdmin includes Source Data, being data from databases of ledgers of third-party issuers of cards that has been formatted by TCN. Source Data includes real time data of the products sold by TCN such as balances and expiry dates of individual cards.[5]

13 A third-party platform, Power BI, which aggregates data, is also used to estimate breakage. Extracts from Power BI contain data from each sales channel from TCNAdmin, providing information by card and by channel.[6]

14 TCN has also for many years engaged Card Compliant to estimate breakage. Reports produced by Card Compliant are based on briefs and information provided by TCN to Card Compliant.[7]

15 From 30 May 2018, Indi owned 46.25% of the shares in TCN. Mr Hewitt is the sole director and secretary of Indi.[8]

16 On 7 May 2022, InComm and the shareholders in TCN, including Indi, entered into a non-binding 'Heads of Agreement' which summarised the terms of the acquisition of shares in TCN by InComm. The aggregate purchase price was specified as $105 million.[9]

17 After a period of negotiation, on 11 October 2022, Indi (and other shareholders) sold their shareholding in TCN to InComm pursuant to the SSA. The consideration for the sale predominantly consisted of a payment of $75 million to be shared between the sellers, and the deferred Further Payment.[10]

18 Clause 7 of the SSA provides the mechanism for the calculation of the Further Payment. It also requires that information underlying the calculation be provided, and provides for the resolution of disputes concerning the Further Payment.

19 It is convenient to set out clause 7 of the SSA in full:

7 Post Completion Calculations and Further Payment

7.1 Completion EBITDA & Completion Breakage Amount

Within 40 Business Days after Completion, the Sellers must procure:

(a) the calculation of Completion Breakage Amount;

(b) the preparation of the Completion Accounts, which shall include the Completion Breakage Amount; and

(c) the calculation of the Completion EBITDA; and

(d) a calculation of EBITDA, which shall include the Breakage in respect of Gift Cards sold in the period commencing on 1 January 2022 and ending on the Effective Time,

and provide a copy of each of the items at clauses 7.1 (a), 7.1 (b), 7.1 (c) and 7.1 (d) to the Buyer together with supporting information, calculations and documentation.

7.2 December 22 EBITDA (Base) & December 22 Breakage (First Estimate)

Within 40 Business Days after 31 December 2022, the Buyer must:

(a) procure Card Compliant, LLC or its successor (or another party agreed by the Buyer and Sellers) to calculate and provide a report (on the basis of the Breakage Brief) for the:

(i) December 22 Breakage (First Estimate); and

(ii) amount of Breakage of the Group as at the Effective Time;

(b) calculate the December 22 EBITDA (Base); and

(c) prepare the December 22 Accounts, the first draft of which must be prepared by JM (so long as JM remains employed by the Group or the Buyer Group) in consultation with Walker Wayland (in accordance with the principles set out in Schedule 7),

and provide a copy of each of the items at clauses 7.2(a), 7.2(b) and 7.2(c) to the Sellers together with supporting information, calculations and documentation. The parties agree that in undertaking the calculations in clauses 7.2(b) and 7.2(c) the Buyer will take into consideration the amounts provided in the report prepared pursuant to clause 7.2(a).

7.3 Review and finalisation of December 22 Accounts

The provisions of clauses 5.2 to 5.9 apply mutatis mutandis to the Sellers' examination and review of the draft December 22 Accounts and December 22 EBITDA (Base) as if the references to "Completion Statement" are references to "December 22 Accounts" and references to "Actual Working Capital and Actual Net Debt" are references to "December 22 EBITDA (Base)".[11]

7.4 December 22 EBITDA (Second Estimate) & December 22 Breakage (Second Estimate), Further Payment Calculation

Within 40 Business Days after 31 December 2023, the Buyer must:

(a) procure Card Compliant, LLC or its successor (or another party agreed by the Buyer and Sellers) to calculate and provide a report (on the basis of the Breakage Brief) for the:

(i) December 22 Breakage (Second Estimate); and

(ii) amount of Breakage of the Group as at the Effective Time;

(b) calculate the December 22 EBITDA (Second Estimate) by including December 22 Breakage (Second Estimate);

(c) calculate the Breakage Differential Amount; and

(d) calculate the Further Payment in accordance with clause 7.5 (FP Notice),

and provide a copy of each of the items at clauses 7.4(a), 7.4(b), 7.4(c) and 7.3(d) to the Sellers together with supporting information, calculations and documentation. The parties agree that in undertaking the calculations in clauses 7.4(b), 7.4(c) and 7.4(d) the Buyer will take into consideration the amounts provided in the report prepared pursuant to clause 7.4(a).

7.5 Further Payment Calculation

(a) The Further Payment will be determined and calculated in accordance with this clause after the calculation of the items in clauses 7.4(a) and 7.4(b) and the Breakage Differential Amount in clause 7.4(c).

(b) The Further Payment shall be calculated in accordance with the following formula:

FP = ((AE x 10.5) - $75,000,000)- (BDA)

Where:

FP is the Further Payment.

AE is the December 22 EBITDA (Second Estimate).

BDA is the Breakage Differential Amount.

Worked Examples and for illustration only:

if the BOA is a positive amount:

• If the (AE) December 22 EBITDA (Second Estimate)= $11,000,000,

• If the BOA= +$10m.

• (($11,000,000 x 10.5) - $75,000,000) - (+$10,000,000) = $30,500,000

• Further Payment = $30,500,000.

if the BOA is a negative amount:

• If the (AE) December 22 EBITDA (Second Estimate)= $11,000,000,

• If the BOA=-$10m.

• (($11,000,000 x 10.5) - $75,000,000) - (-$10,000,000) = $50,500,000

• Further Payment = $50,500,000.

7.6 Sellers Review

The Sellers must complete their examination and review of the Further Payment calculation in the FP Notice and all items at clauses 7.4(a), 7.4(b) and 7.4(c) within 20 Business Days after receipt from the Buyer under clause 7.3 (FP Review Period) and deliver to the Buyer a written report, by no later than the end of the FP Review Period (Sellers FP Report) stating whether or not the Sellers agree with the contents of the FP Notice.

7.7 Sellers Agree

If the Sellers agree with the FP Notice in the Sellers FP Report:

(a) if the Further Payment is more than $0, the Buyer will pay the Further Payment to the Sellers, together with an amount for Simple Interest calculated in accordance with clause 7.17 (in their Respective Proportions) within 10 Business Days after the date the Sellers deliver the Sellers FP Report; or

(b) if the Further Payment is a negative amount, the Further Payment will be deemed to be $0, the Buyer will not be required to pay any Further Payment to the Sellers, the Sellers will not be required to pay the Further Payment to the Buyer, and, following such, the Purchase Price will be deemed fully paid.

7.8 Sellers Disagree

If the Sellers do not agree with contents of the FP Notice, the Sellers must also set out in the Sellers FP Report:

(a) the matters in respect of which the Sellers disagree with the FP Notice (Disputed FP Matters);

(b) the grounds on which the Sellers disagree with the FP Notice; and

(c) the Sellers' opinion as to the quantum of the Further Payment.

7.9 No Sellers FP Report

If the Sellers do not deliver the Sellers FP Report as required under clause 7.6, then the FP Notice delivered by the Buyer under clause 7.4 will be deemed to be accepted by the Sellers and clause 7.7 shall apply.

7.10 Steps on Disagreement

(a) If the Sellers delivers a Sellers FP Report as required under clause 7.6 stating that the Sellers do not agree with the Further Payment provided for in the FP Notice, then the Sellers and the Buyer must enter into good faith negotiations and use all reasonable endeavours to agree the Disputed FP Matters.

(b) If the Buyer and the Sellers cannot agree the Disputed FP Matters within 20 Business Days after delivery of the Sellers FP Report (or such longer period as the Buyer and the Sellers may agree in writing) then the Buyer must pay to the Sellers (in their Respective Proportions) at least 80% of the Further Payment (as calculated by the Buyer and specified in the FP Notice) (Further Payment Instalment) and defer the calculation and payment of the balance of the Further Payment (Deferred FP Amount) until a date no later than 31 December 2025 (Deferred FP Date) in accordance with clauses 7.11 and 7.12.

7.11 Deferred FP Amount - 2nd FP Notice

This clause 7.11 applies if there is a Deferred FP Amount.

(a) Within 40 Business Days after 31 December 2024, the Buyer will (2nd FP Notice):

(i) procure Card Compliant, LLC or its successor (or another party agreed by the Buyer and Sellers) to provide a report (on the basis of the Breakage Brief) for the:

(A) December 22 Breakage (Third Estimate); and

(B) amount of Breakage of the Group as at the Effective Time;

(ii) calculate the December 22 EBITDA (Third Estimate) by including December 22 Breakage (Third Estimate); and

(iii) calculate the Further Payment in accordance with clause 7.5 but using the December 22 EBITDA (Third Estimate) and the Final Breakage Amount determined under clause 7.11 (a)(i), and determine:

(A) the quantum (if any) of the Deferred FP Amount that is payable to the Sellers; or

(B) whether the Further Payment Instalment paid by the Buyer to the Sellers under clause 7.10(b) results in a payment due to the Buyer by the Sellers (Overpayment),

and provide a copy of each of the items at clauses 7.11 (a)(i), 7.11 (a)(ii) and 7.11 (a)(iii) to the Sellers together with supporting information, calculations and documentation. The parties agree that in undertaking the calculations in clauses 7.11 (a)(ii) and 7.11 (a)(iii) the Buyer will take into consideration the amounts provided in the report prepared pursuant to clause 7.11 (a).

(b) Clauses 7.6 to 7.10(a) apply mutatis mutandis to the review and response to the 2nd FP Notice as if it were an FP Notice.

(c) If the Sellers agree with the 2nd FP Notice, the agreed Deferred FP Amount or Overpayment (as the case may be) must be paid, together with an amount for Simple Interest calculated in accordance with clause 7.17 or, in the case of an Overpayment, with a repayment of any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment, within 10 Business Days of the date on which the Deferred FP Amount is agreed between the Buyer and the Sellers and, following such payment, the Purchase Price will be deemed fully paid.

7.12 Deferred FP Date and Deferred FP Amount - Final FP Notice

This clause 7.12 applies if there is a Deferred FP Amount and clause 7.11(c) does not apply.

(a) Within 40 Business Days after the Deferred FP Date, the Buyer must (Final FP Notice):

(i) calculate the:

(A) December 22 Breakage (Final); and

(B) amount of Breakage of the Group as at the Effective Time;

(ii) calculate the December 22 EBITDA (Final), using the December 22 EBITDA (Base) and including December 22 Breakage (Final), and

(iii) calculate the Further Payment in accordance with clause 7.5, but using the December 22 EBITDA (Final) and the Final Breakage Amount determined under clause 7.12(a)(i) and determine:

(A) the quantum (if any) of the Deferred FP Amount that is payable to the Sellers; or

(B) whether the Further Payment Instalment paid by the Buyer to the Sellers under clause 7.10(b) results in a payment due to the Buyer by the Sellers (Overpayment),

and provide a copy of each of the items at clauses 7.12(a)(i), 7.12(a)(ii) and 7.12(a)(iii) to the Sellers together with supporting information, calculations and documentation.

(b) Clause 7.6 to 7.10(a) apply mutatis mutandis to the review and response to the Final FP Notice as if it were an FP Notice.

(c) If the Sellers agree with the Final FP Notice the agreed Deferred FP Amount or Overpayment (as the case may be) must be paid, together with an amount for Simple Interest calculated in accordance with clause 7.17 or, in the case of an Overpayment, a repayment of any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment, within 10 Business Days of the date on which the Deferred FP Amount or Overpayment (as the case may be) is agreed between the Buyer and Sellers and, following such payment, the Purchase Price will be deemed fully paid.

7.13 Independent Accountant Dispute Resolution

(a) If the Seller disagrees with the Final FP Notice and the Buyer and the Sellers cannot agree the Disputed FP Matters in respect of the Final FP Notice within 20 Business Days after delivery of the Sellers FP Report (or such longer period as the Buyer and the Sellers may agree in writing) then either the Buyer or the Sellers may refer the disagreement to the Independent Accountant to determine such unresolved Disputed FP Matters. For the avoidance of doubt, the only matters which may be referred to the Independent Accountant for determination are the December 22 Breakage (Final) and the Final Breakage Amount and the impact that such amounts have on the December 22 EBITDA (Final) and the Further Payment.

(b) The Buyer and the Sellers must instruct the Independent Accountant to decide within the shortest practicable time the Disputed FP Matters in respect of the Final FP Notice and to deliver to the Buyer and the Sellers a report (IA's FP Report), that contains a copy of the amended Final FP Notice (if any) and that states, on the basis of the Independent Accountant's decision, its opinion as to:

(i) the Disputed Matters in respect of the Final FP Notice, including the reasons for the Independent Accountant's decision; and

(c) The Buyer and the Sellers must provide and must ensure that the Buyer's accountants and the Group's accountants respectively provide, all information and assistance the Independent Accountant reasonably requests for the purpose of the IA's FP Report.

(d) The Buyer and the Sellers may, within 10 Business Days of the appointment of the Independent Accountant, make a submission to the Independent Accountant in respect of each of the Disputed FP Matters in respect of the Final FP Notice and may, within 5 Business Days of a submission by the other party, make a response to the submission of the other party.

(e) The procedures to be followed by the Independent Accountant and the parties in determining the dispute will be as follows:

(i) the Independent Accountant will review the documents submitted by the relevant parties and have the opportunity to ask specific written questions of, or request specific historical documents from, the parties to clarify its understanding of the submissions;

(ii) in relation to questions asked of one party, the other party may submit to the Independent Accountant written dissent to any response submitted by the first party to the Independent Accountant;

(iii) copies of any submission, response or document submitted to or by the Independent Accountant by or to a party as contemplated in this clause will be submitted by the party or the Independent Accountant to the other parties simultaneously or as soon as received, as the case may be; and

(iv) if any non-written communication with the Independent Accountant is proposed, the relevant party must:

(A) give the other parties not less than 2 Business Days' notice of the proposed communication; and

(B) provide each other party and its representatives and advisers with the opportunity to be present at any meetings or be part of any discussions, as the case may be.

7.14 Conclusiveness of IA's report

(a) The Independent Accountant will act as an expert, not as an arbitrator, in determining the dispute.

(b) The Independent Accountant's determination in relation to the Disputed FP Matters in respect of the Final FP Notice and the Final FP Notice must be made as soon as possible.

(c) The Independent Accountant's decision is final, conclusive and binding (except in the case of manifest error).

(d) The Deferred FP Amount determined as payable by the Independent Accountant, must be paid by the Buyer to the Sellers, together with an amount for Simple Interest calculated in accordance with clause 7.17, within 10 Business Days of the date of the IA's FP Report and, following such payment, the Purchase Price will be deemed fully paid.

(e) The Overpayment determined by the Independent Accountant as payable must be paid by the Sellers to the Buyer, together with a repayment of any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment, within 10 Business Days of the date of the IA's FP Report and, following such payment, the Purchase Price will be adjusted by the amount of the Overpayment.

7.15 Costs

The parties agree to each pay the Independent Accountant's costs and expenses in accordance with the determination of the Independent Accountant. In the absence of such a decision, the Sellers and the Buyer will each pay for half of the Independent Accountant's costs and expenses.

7.16 Access to information

The Buyer must procure the Company to:

(a) permit representatives of the Buyer and the Sellers to have access to and take extracts from the books, correspondence, accounts or other records relating to the Group as the Buyer or the Sellers reasonably request in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice; and

(b) provide or ensure the provision of all information and assistance that may reasonably be requested by the advisers of the Buyer and the Sellers in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice (as applicable), which includes procuring that JM (so long as JM remains employed by the Company) provides all reasonable assistance to the Sellers during business hours,

(c) nothing in this clause 7.16 requires the Buyer to waive legal professional privilege; and

(d) the Sellers must comply (and procure their representatives comply) with any reasonable confidentiality requirements of the Buyer.

7.17 Payment of Simple Interest: Further Payment, Further Payment Instalment, Deferred FP Amount or Overpayment

(a) At the same time that:

(i) the Further Payment is paid by the Buyer to the Sellers under clause 7.7; or

(ii) a Further Payment Instalment is paid by the Buyer to the Sellers under clause 7.10(b),

the Buyer must also pay to the Sellers Simple Interest on the Further Payment or the relevant Further Payment Instalment (as applicable) at the Initial Interest Rate for the period commencing on the Completion Date and ending on the date on which the Further Payment or relevant Further Payment Instalment (as applicable) is paid by the Buyer to the Sellers.

(b) At the same time that a Deferred FP Amount is paid by the Buyer to the Sellers, the Buyer must also pay to the Sellers Simple Interest on the relevant Deferred FP Amount calculated in the following manner:

(i) at the Initial Interest Rate for the period commencing on the Completion Date and ending on the date on which the Deferred FP Amount is deferred under clause 7.1 0(b ); plus

(ii) at the Deferred Interest Rate for the period commencing on the date on which the Deferred FP Amount is deferred under clause 7.10(b) until the date on which the Deferred FP Amount is paid by the Buyer to the Sellers.

(c) Where the Overpayment is payable to the Buyer that amount shall be paid by the Sellers to the Buyer with an amount of Simple Interest calculated in this clause within 10 Business Days after the earlier of:

(i) agreement between the parties to the Overpayment due to the Buyer; or

(ii) determination of the Overpayment as at the date of (and in) the IA's Report under clause 7.14(e)

The Sellers must repay, at the same time the Overpayment is paid to the Buyer, any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment.

20 Schedule 7 of the SSA specifies in detail how relevant post-completion calculations are to be prepared.

(a) The Completion Breakage Amount, Completion Accounts, Completion EBITDA, December 22 Accounts and December 22 EBITDA (Base) (Post Completion Accounts - Part A) must be prepared in accordance with, in order of precedence:

(i) the specific accounting principles, policies and procedures set out in Part 2 of this Schedule 7;

(ii) where an item is not covered by the specific accounting principles, policies and procedures set out in paragraph (a) of Part 1 of this Schedule 7, in a manner consistent with the accounting principles, policies and procedures (with consistent classifications, judgments and estimation techniques) used to prepare the Accounts for the twelve months ending on the Accounts Date, but taking into account that not all line items in the Accounts will be included in the Post Completion Accounts - Part A; and

(iii) where an item is not covered by the accounting principles, policies and procedures referred to in paragraphs (i) or (ii) of Part 1 of this Schedule 7 above, in accordance with the Accounting Standards.

(b) The December 22 Breakage (First Estimate), December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate), December 22 Breakage (Final), Final Breakage Amount, December 22 EBITDA (Second Estimate), December 22 EBITDA (Third Estimate) and December 22 EBITDA (Final) (Post Completion Accounts - Part B, together with the Post Completion Accounts - Part A, the Post Completion Accounts) must be prepared in accordance with the specific accounting principles, policies and procedures set out in Part 2 of this Schedule 7.

2 Accounting Principles

The Post Completion Accounts must be prepared in accordance with the following principles:

(a) The Completion Accounts and December 22 Accounts must be prepared in a manner consistent with the accounting standards, principles, policies and procedures used to prepare the Completion Statement in accordance with Part B of Schedule 6, other than the following normalisations that are to be added back to the Completion EBITDA and December 22 EBITDA (Base):

(i) Transaction Costs, including but not limited to travel, accommodation and associated expenses relating to visit by TCN and its advisers to Tampa in September 2022; and

(ii) where not already included in Transaction Costs under Paragraph (a)(i) of Part 2 of Schedule 7, the following normalisations:[12]

(b) Completion Breakage Amount must be calculated on the same basis that the Group has accounted for Breakage in the Accounts, being:

(i) Breakage is recognised in line with month of sale. Breakage is not recognised in line with spend as required under IFRS15. For example, the Group sold 1 x $100 card in a month, and the Group expects 10% of the funds on that card to be unspent at the end of its expiration period, the Group would take up $10 of breakage revenue (less GST liability) in the month of sale via a journal at month end.

(ii) Historically, Card Compliant reports are used to guide the Group's breakage estimates for its 7 highest selling cards. The Group has adopted its own models and uses the Card Compliant reports as an index.

(iii) In respect of corporate sales (B2B), the Group recognises Breakage in the month after sale. Each quarter the Group reviews its corporate breakage estimates and post true-ups/true-downs for any material variances from our initial estimates.

(c) Completion EBITDA must be calculated using the EBITDA derived from the Completion Accounts, excluding Breakage for Gift Cards sold in the period commencing on 1 January 2022 and ending on the Effective Time.

(d) December 22 Breakage (First Estimate), December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate), December 22 Breakage (Final) and Final Breakage Amount based on actual Breakage data to the extent that it is available and forecast data for unexpired cards.

(e) December 22 EBITDA (Base) must be calculated using the EBITDA derived from the December 22 Accounts (and having regard to the Completion EBITDA, including the same normalisations as in the Completion EBITDA), excluding December 22 Breakage.

(f) December 22 EBITDA (Second Estimate), December 22 EBITDA (Third Estimate) and December 22 EBITDA (Final) must all be calculated using the December 22 EBITDA (Base) adjusted to include the following:

(i) December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate) or December 22 Breakage (Final), as appropriate; and

(ii) changes to Commissions based on the quantum of the December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate) or December 22 Breakage (Final), as appropriate.

(g) When calculating each of December 22 EBITDA (Second Estimate), December 22 EBITDA (Third Estimate) and December 22 EBITDA (Final), the only variables that will change from the December 22 EBITDA (Base) will be changes in the calculation of December 22 Breakage and the corresponding changes to commissions as a result of such changes to December 22 Breakage.

(i) The Breakage estimates have a direct impact on the Commission estimates as follows:

(ii) There are two estimates in the Group accounts posted at month end:

(A) Breakage equalling estimated balance left on Gift Cards at expiration, less 10% GST; and

(B) Commission equalling estimated commission revenue earned on Gift Cards sold during the period, calculated on specific cards at a rate agreed to in specific partner agreements.

(iii) Example: If Breakage is estimated at 20%, then the estimated commission revenue is calculated on 80% of the Gift Cards. At the end of the 3-year period, if Breakage is actually 18%, then 82% of the Gift Cards would have earned commission revenue at the rates specific to those particular cards and partners.

(iv) At the end of the Gift Card lifecycle (3 years), both of the above estimates will become actuals and an adjustment will occur.

3 Breakage Brief

Card Compliant must be instructed to prepare its reports on December 22 Breakage using Card Compliant's standard methods and practices with consideration of the following, but acknowledging that Card Compliant has final determination of its calculations and report:

(a) the differences between "grocery" and "corporate/B2B" sales;

(b) each product channel based on the information provided in a Card Compliant program profile, which identifies the specific characteristics of each product and/or channel (see example as set out in document 09.02 in the Data Room);

(c) all card data for the relevant period as compiled by the Company and reviewed by the Buyer in accordance with standard card compliant ETL specifications (see example as set out in document 09.03 in the Data Room);

(d) the specific transaction code mapping schedule provided by the Company and reviewed by the Buyer identifying the balance and non-balance affecting transactions; and

(e) the Australian market and its specific characteristics.

21 Clause 1 of the SSA relevantly defines the following terms:[13]

In this agreement, unless the context otherwise requires:

2nd FP Notice has the meaning given in clause 7.11.

Accounting Standards means:

(a) the requirements of the Corporations Act for the preparation of financial reports; and

(b) to the extent not inconsistent with paragraph (a), generally accepted accounting principles and practices in Australia for a period of at least 12 months before Completion for a business of the size conducted by the Group.

(a) the unaudited consolidated balance sheet of the Company as at the Accounts Date; and

(b) the unaudited profit and loss accounts for the period from 1 June 2021 to 30 June 2022 a copy of which is listed as document 03.01.02 in the Data Room Index.

Accounts Date means 30 June 2022.

Action means an action, investigation, inquiry, prosecution, litigation, proceeding, arbitration, mediation or dispute resolution process.

Actual Net Debt means Net Debt as at the Effective Time, as set out in the final Completion Statement and as adjusted in accordance with clause 5 (if applicable).

Actual Working Capital means Working Capital as at the Effective Time, as set out in the final Completion Statement and as adjusted in accordance with clause 5 (if applicable).

Breakage means the amount of value loaded on to a Gift Card which is forfeited for use by a Gift Card holder as a result of the expiry of the Gift Card.

Breakage Brief means the instructions to Card Compliant to be given by the Buyer for the reports for Breakage in clause 7 accounting for paragraphs (b) and (d) of Part 2 of Schedule 7, as set out in Part 3 of Schedule 7.

Breakage Differential Amount means the difference between the Completion Breakage Amount and the Final Breakage Amount and:

(a) if the Completion Breakage Amount is higher than the Final Breakage Amount shall be expressed as a positive amount; and

(b) if the Completion Breakage Amount is less than the Final Breakage Amount shall be expressed as a negative amount.

Business Day means a day on which banks are open for business in Melbourne, Australia, other than a Saturday, Sunday or public holiday in Melbourne, Australia.

Buyer Group means the Buyer and each of its Related Bodies Corporate (other than the Group Members) and Buyer Group Member means any member of the Buyer Group.

Cash means, in relation to each Group Member, the aggregate of its cash (whether in hand or credited to any account with any banking, financial, lending or other similar institution or organisation), including all interest accrued thereon, as at the Effective Time and any other amounts that constitute "cash" in accordance with the line items set out in the Proforma Completion Balance Sheet, based upon the appropriate bank account reconciliation where the cash balance represents the "book" balance (as opposed to the "bank" balance). To avoid double counting, cash excludes any amount already categorised as Debt.

Commission means commission earned by the Group as recorded in the general ledger of the Group with account number 205.

Company means TCN Group Pty Limited ACN 626 501 568.

Completion means completion of the Transaction in accordance with clause 4.

Completion Breakage Amount means the Breakage of the Group as at the Effective Time as set out in the Completion Accounts prepared in accordance with clause 7.1.

Completion Date means the date of this agreement.

Completion Accounts means the

(a) the unaudited consolidated balance sheet of the Company as at the Effective Time; and

(b) the unaudited profit and loss accounts for the period from 1 January 2022 to the Effective Time.

Completion EBITDA means the EBITDA for the period from 1 January 2022 to the Effective Time excluding Breakage in respect of that period, calculated in accordance with clause 7.1.

Completion Payment means $75,000,000.

Completion Statement means the statement setting out Actual Working Capital and Actual Net Debt to be prepared and finalised pursuant to clause 5 and in accordance with the principles, policies and procedures set out in Schedule 6.

Corporations Act means the Corporations Act 2001 (Cth).

CY22 means the period commencing on 1 January 2022 and ending on 31 December 2022, inclusive.

Data Room means the virtual data room maintained through Ansarada entitled "Project Bright", as at 5pm on the date of this agreement.

Data Room Index means the index set out in Part A of Schedule 12.

Debt means the aggregate amount of all financial indebtedness of the Group as at the Effective Time, being the aggregate of the following:

(a) all loans or other financing liabilities, including overdrafts, from Third Parties (including any accrued but unpaid fees, break costs and charges);

(b) any obligations in respect of dividends or other distributions declared but not paid as at the Effective Time;

(c) shareholder loans and any accrued interest;

(d) any outstanding Transaction Costs;

(e) any other amounts that constitute "debt" in accordance with the line items set out in the Proforma Completion Balance Sheet, but which are not already included in items (a) to (d) above. To avoid double counting, Debt specifically excludes any amount already defined as Cash. In the circumstance where a debt amount is a debit balance on the Group's balance sheet, the amount will be treated as a negative Debt amount and in the circumstance where a debt amount is a credit balance on the Group's balance sheet, the amount will be treated as a positive Debt amount; and

(f) any obligation of the Company for financial indebtedness that is due and payable as at Completion and not otherwise included in Working Capital or the Pro Forma Completion Balance Sheet, in each case, other than to the extent such amount is paid out or discharged at Completion.

December 22 Breakage (First Estimate) means the estimated Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.2 and Schedule 7.

December 22 Breakage (Second Estimate) means the estimated Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.3 and Schedule 7.

December 22 Breakage (Third Estimate) means estimated Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.11 (a) and Schedule 7.

December 22 Breakage (Final) means the actual Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.12(a) and Schedule 7.

December 22 Accounts means the

(a) the unaudited consolidated balance sheet of the Company as at 31 December 2022; and

(b) the unaudited profit and loss accounts for CY22, provided in accordance with clauses 7.2.

December 22 EBITDA (Base) means the EBITDA for CY22, excluding Breakage in respect of Gift Cards sold by the Group in CY22, calculated in accordance with clause 7.2 and Schedule 7.

December 22 EBITDA (Second Estimate) means the EBITDA for CY22, calculated by including December 22 Breakage (Second Estimate) in the December 22 EBITDA (Base), in accordance with clause 7.4 and Schedule 7.

December 22 EBITDA (Third Estimate) means the EBITDA for CY22, calculated by including December 22 Breakage (Third Estimate) in the December 22 EBITDA (Base), in accordance with clause 7.11 (a) and Schedule 7.

December 22 EBITDA (Final) means the EBITDA for CY22, calculated by including December 22 Breakage (Final) in the December 22 EBITDA (Base), in accordance with clause 7.12(a) and Schedule 7.

Deferred FP Amount has the meaning given in clause 7.10(b).

Deferred FP Date has the meaning given in clause 7.10(b).

Deferred Interest Rate means a Simple Interest rate of 5.10%.

Disputed FP Matters has the meaning given in clause 7.8.

EBITDA means earnings before income taxes, interest, depreciation and amortisation of the Group.

Effective Time has the meaning given to the term in paragraph (a) of Part B of Schedule 6.

Final Breakage Amount means (as the context requires) the amount of Breakage of the Group as of Completion:

(a) estimated by Card Compliant LLC under clause 7.2(a)(ii), 7.4(a)(ii), 7.4 or 7.11 (a)(i)(B) (as applicable);

(b) calculated by the Buyer under clause 7.12(a)(i)(B);

(c) determined by the Independent Accountant under clause 7.13; or

(d) determined by agreement of the parties;

Final FP Notice has the meaning given in clause 7.12.

FP Notice has the meaning given in clause 7.4

FP Review Period has the meaning given in clause 7.6.

Further Payment means the amount:

(a) calculated in clause 7.5; and

(b) payable to the Sellers (in their Respective Proportions) in accordance with clause 7.7; or

(c) payable to the Sellers (in their Respective Proportions) as the Further Instalment Payment under clause 7.10, and if applicable, the Deferred FP Amount in accordance with clauses 7.11, 7.12 or 7.14(d), with interest calculated and payable as part of the Further Payment, Further Payment Instalment and/or Deferred FP Amount (as applicable) to the Sellers (in their Respective Proportions) in accordance with clause 7.17.

Further Payment Instalment has the meaning given in clause 7.10(b).

Gift Card means a stored value or prepaid physical card or digital voucher, which, when activated:

(a) has a set dollar amount;

(b) can be used to purchase services or merchandise from a single retailer or multiple retailers in Australia or New Zealand at physical retailing locations or on-line shops;

(c) is not redeemable for cash;

(d) is not reloadable;

(e) is marketed solely as a gift card;

(f) is not a component of another financial product;

(g) prominently displays or permits the prominent display on the card or mechanism either:

(ii) the number of months following purchase that such card or mechanism expires (along with room to write the purchase date on such card or mechanism); and

(h) otherwise satisfies the definition of "gift facility" as that term appears in AS/C Corporations (Non-cash Payment Facilities) Instrument 2016/211 (as amended or replaced from time to time).

Governmental Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

Group means the Company and the Subsidiaries, and Group Member means any one of them.

GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply.

GST Act means A New Tax System (Goods & Services Tax) Act 1999 (Cth) and the regulations associated with that Act.

GST Law has the same meaning as in the GST Act.

IA's FP Report has the meaning given in clause 7.13(b).

Independent Accountant means a qualified and independent Australian chartered accountant appointed jointly by the Sellers and the Buyer or, if they do not agree on the person to be appointed within five Business Days of a party requesting the appointment pursuant to a relevant provision of this agreement, a qualified and independent Australian chartered accountant of not less than 10 years' standing appointed by the Chair of the Resolution Institute.

Initial Interest Rate means a Simple Interest rate of 3.8%.

Net Debt means in respect of the Group as at the Effective Time, Cash, less Debt, as calculated in accordance with Schedule 6. For the avoidance of doubt, if Cash is greater than Debt, the Net Debt will be a positive amount, and if Cash is less than Debt, the Net Debt will be a negative amount.

Purchase Price means the aggregate of the amounts payable under clause 3.1.

Related Body Corporate means a 'related body corporate' as that expression is defined in the Corporations Act.

Respective Proportion means in respect of each Seller:

(a) [Indi] - 46.25%;

(b) [Hopper Nation Pty Ltd ACN 632 534 199 as trustee for the Hopper Nation Trust ABN 54 136 466 248] - 46.25%;

(c) [Emily Hall] - 5%; and

(d) JM - 2.5%.

Sellers FP Report has the meaning given in clause 7.6.

Seller Group means:

(a) the Sellers and their Related Body Corporates; and

(b) any trust that a Seller or a Related Body Corporate of a Seller is the trustee of, and Seller Group Member means any member of the Seller Group.

Seller Group Representative means any representative or adviser of any Seller Group Member and any Related Bodies Corporate of such representative or adviser (or any current or former executive, officer, employee of or contractor to any of them).

Sellers means [Indi], [Hopper Nation Pty Ltd ACN 632 534 199 as trustee for the Hopper Nation Trust ABN 54 136 466 248], [Emily Hall] and JM.

Simple Interest means the amount of interest calculated in accordance with the following formula:

AO x (I ÷ 365) x N

where:

• AO = Relevant amount outstanding on the day of calculation

• I = Initial Interest Rate (0.038) or Deferred Interest Rate (0.0510) (as applicable)

• N = Number of days during which interest is accrued

Transaction means the sale and purchase of the Sale Shares in accordance with this agreement.

Transaction Costs means:

(a) adviser costs, service fees, finder's fees, escrow fees or other costs or fees relating to the Transaction incurred or payable by any Group Member;

(b) the aggregate amount of any bonuses, incentives, commissions or other fees incurred or payable by any Group Member to any current or former executive, officer, employee of or contractor to any Group Member in connection with the Transaction (including all retention and similar bonuses and any payments for restraint covenants); and

(c) any directors and officers insurance costs incurred or payable by any Group Member in accordance with clause 6.4.

Working Capital means in respect of the Group as at the Effective Time, as calculated in accordance with Schedule 6.

22 Paragraph (a) of Part B to Schedule 6 of the SSA defines the Effective Time as 30 September 2022.

Jonathon Mould

of Unit 405, 71 Abinger Street, Richmond VIC 3121 (JM).

24 Jonathan Mould was the Chief Financial Officer of TCN between May 2022 and October 2024 and has since been the General Manager of TCN.[14]

25 On 7 December 2022, the Sellers provided InComm with calculations and documents pursuant to clause 7.1 of the SSA. Relevantly, the calculation of the Completion Breakage Amount pursuant to clause 7.1(a) was $50,467,676.27, the calculation of the Completion EBITDA pursuant to clause 7.1(c) was -$12,949,309.75 and the calculation of the EBITDA pursuant to clause 7.1(d) was $3,887,011.29, with a normalised calculation of $4,741,149.30.[15]

26 On 3 January 2023, Mr Mould granted Mr Hewitt access to Power BI, which was subsequently revoked on 11 February 2023.[16]

27 On 27 March 2023, Card Compliant produced several PDF reports and spreadsheets relating to the calculation of breakage (March 2023 Card Compliant PDF reports). The reports appeared to cover a transaction period from 15 December 2019 to 31 December 2022.[17] The reports and spreadsheets (converted to PDF) were subsequently provided by InComm to Indi.[18]

28 On 22 July 2023, InComm emailed Indi (and the other Sellers) its calculations and five spreadsheets 'in respect of reporting under clause 7.2'. The December 22 Breakage (First Estimate) it calculated pursuant to clause 7.2(a)(i) was $23,929,900. The supporting spreadsheet had several tabs, including a 'Summary' tab, tabs for specific channels that appeared to summarise calculations from Card Compliant reports[19] (insofar as they included Card Compliant logos) and further tabs that appeared to summarise information regarding other channels. The calculations that appeared to be from Card Compliant were 'hard-coded' such that they did not reveal the formulas or underlying data from which the calculations were drawn, and the spreadsheets otherwise did not include the underlying Source Data from which the calculations were purported to have been made.[20] InComm calculated the Breakage of the Group as at the Effective Time pursuant to clause 7.2(a)(ii) as $0.[21] The December 22 EBITDA (Base) was calculated as ‑$24,376,186.[22]

29 On 21 August 2023, Indi informed InComm that it disputed the calculations of the December 22 Accounts and the December 22 EBITDA (Base).[23]

30 In the ensuing months, there was further correspondence between the parties, including an email from Mr Mould to Mr Hewitt on 31 October 2023 that attached Power BI extracts.[24]

31 On 19 February 2024, Card Compliant produced several PDF reports and spreadsheets with calculations of breakage in a similar form to the March 2023 Card Compliant PDF reports (February 2024 Card Compliant PDF reports). The reports appeared to cover a transaction period from 15 December 2019 to 31 January 2024, and large portions of the reports were redacted.[25] The reports and spreadsheets (converted to PDF) were subsequently provided by InComm to Indi.[26]

32 On 22 March 2024, following further correspondence between the parties, Indi emailed InComm that it agreed in principle to calculations regarding the December 22 Accounts and December 22 EBITDA (Base) following amendments to those figures agreed to by InComm. Nevertheless, Indi maintained that InComm had not provided the relevant supporting information, calculations and documentation required by clause 7.2. The email also reiterated InComm's obligations with respect to clause 7.4 in providing the December 22 Breakage (Second Estimate), the December 22 EBITDA (Second Estimate) and the Further Payment calculation by 27 February 2024.[27]

33 On 26 April 2024, InComm provided six spreadsheets to Indi in purported fulfilment of its obligations pursuant to clause 7.4. One spreadsheet included the calculation of the December 22 Breakage (Second Estimate) pursuant to clause 7.4(a)(i) in its first tab as $24,845,844. Other tabs included in that spreadsheet appeared to summarise calculations from Card Compliant reports relating to particular channels in the same manner as in the spreadsheet provided on 22 July 2023 described at [28[28]] above.28 A different spreadsheet indicated that the calculation pursuant to clause 7.4(a)(ii) w[29] $184,943,29 but InComm's calculations of the December 22 EBITDA (Second Estimate) and Further Payment were n[30] included.30 Source Data was not included in the spreadsheets or otherwise provided.

34 By correspondence on 13 June 2024, and subsequently on 7 August 2024, Indi sought further information from InComm pursuant to clause 7.4 in relation to the December 22 EBITDA (Second Estimate) and the December 22 Breakage (Second Estimate).[31]

35 On 22 August 2024, InComm provided an additional eight spreadsheets to Indi. These spreadsheets did not include the Source Data. In its email, InComm stated that its calculation of the Further Payment was $0.[32]

36 On 20 September 2024, Indi sent InComm a letter stating that it considered that the material which InComm had provided with its 26 April 2024 and 22 August 2024 emails did not comply with clause 7.4 for reasons including that it failed to include supporting information, calculations, and documentation. Indi requested that InComm provide the following information pursuant to clauses 7.4 and 7.16:

(a) current versions of the reports provided by Jonathon Mould to Richard Hewitt, attached to Jonathon Mould's email dated 31 October 2023, being the breakage rate per card per channel, spend velocity per card per channel and breakage per denomination per card;

(b) access to Power BI and the Power BI reports to verify Buyer's calculation of the Further Payment;

(c) all reports (including any drafts) procured from Card Compliant, LLC in accordance with clause 7.4(a) of the SSA, for the December 22 Breakage (Second Estimate) and amount of Breakage of the Group as at the Effective Time; and

(d) all correspondence between Card Compliant, LLC and a member of the Buyer Group, the Group, or any of their respective directors, employees, professional advisors or subcontractors, in relation to the SSA, including, without limitation, the preparation and finalisation of the report under clause 7.4(a) of the SSA and the Breakage Brief.[33]

37 Indi's letter of 20 September 2024 did not concede that InComm had adequately provided an FP Notice pursuant to clause 7.4, but nevertheless, annexed a Sellers FP Report pursuant to clauses 7.6 and 7.8 of the SSA detailing the matters that Indi considered Disputed FP Matters.[34]

38 On 23 October 2024, Indi issued InComm a notice under clause 7.16 of the SSA and requested the same material it had earlier requested in its letter of 20 September.[35]

39 On 15 November 2024, InComm sent Indi a letter in which it stated that it considered it had complied with clause 7.4, but nevertheless attached two additional spreadsheets. It further stated that the requested information sought by Indi in its letter of 20 September 2024 and its correspondence on 23 October 2024 was unreasonable.[36]

40 On 19 November 2024, Card Compliant prepared several PDF reports and spreadsheets with updated calculations of breakage in a similar form as the March 2023 Card Compliant PDF reports and the February 2024 Card Compliant PDF reports (collectively, the Card Compliant PDF reports). The reports appeared to cover a transaction period from 15 December 2019 to 31 August 2024, and large portions of the reports were redacted.[37] Those reports and spreadsheets (converted to PDF) were also subsequently provided by InComm to Indi.[38]

41 On 11 December 2024, Indi commenced this proceeding by originating motion.[39]

42 On 30 January 2025, Indi informed InComm that the 'Disputed FP Matters' set out in the Sellers FP Report remained unresolved 20 business days after its delivery. Consequently, there was a Deferred FP Amount and clause 7.11 of the SSA applied.[40]

43 On 25 February 2025, InComm sent Indi a letter in which it stated:

The actual unspent balance on all TCN gift cards sold during the 2022 calendar year as at 17 February 2025 is $31,730,745. Applied net of GST, that actual breakage amount is $28,846,132.[41]

44 The letter enclosed a Power BI extract which it said evidenced its calculation of actual breakage, and went on to calculate the Further Payment as nil.[42]

45 On 27 February 2025, InComm sent an email to Indi with six spreadsheets which it described as the 'Third Estimate' pursuant to clause 7.11, and which, in effect, purported to constitute the 2nd FP Notice.[43] The calculation of the Further Payment was again nil. A spreadsheet concerning the breakage calculation included tabs that appeared to be Card Compliant extracts in a similar manner as the spreadsheets provided on 22 July 2023 and 26 April 2024 described at [28] and [[[44]](#_Ref > By correspondence dated 4 March 2025, Indi notified InComm that it had identified inconsistencies in the Issue Amounts (as defined in the 4 March 2025 letter):

(a) underlying the First Estimate;

(b) provided by InComm in October 2023;

(c) underlying the FP Notice;

(d) provided by InComm in August 2024;

(e) provided by InComm by correspondence dated 25 January 2025; and

(f) underlying the 2nd FP Notice,

and has requested an explanation for these inconsistencies.

Pursuant to clause 7.16 of the SSA, the Buyer is to procure that the Company provide all books, correspondence, accounts or other records that support the explanation requested (the Documents). This request includes any source data or document referred to in the response to the 4 March 2025 letter.[46]

48 During March 2025, further emails were exchanged between Indi and InComm regarding the provision of information under the SSA.[47]

49 On 25 March 2025, without conceding the validity of the 2nd FP Notice purportedly issued by InComm on 27 February 2025, Indi issued to InComm a 'Sellers FP Report' pursuant to clauses 7.6, 7.8 and 7.11 of the SSA detailing the matters in the 2nd FP Notice which were disputed.[48] Those matters have not subsequently been resolved.

50 On 3 April 2025, and subsequently on 7 April 2025, Indi instructed Ryan Carruth, an accountant, to act as an 'Independent Adviser' in preparing a report (the Carruth Report) setting out the following:

(a) whether you have sufficient information to review the Second Estimate and FP Notice and the Third Estimate and 2nd FP Notice; and

(b) if the answer to (a) is not yes and you require any further information to review the Second Estimate and FP Notice and the Third Estimate and 2nd FP Notice, please identify the additional material that you require, along with your reasons for requesting that material.[49]

51 On 15 April 2025, Indi provided InComm with the Carruth Report. Indi issued a notice to InComm pursuant to clause 7.16(b) of the SSA, which requested the documents referred to in Annexure D of the Carruth Report, except for the Completion Statement as at 30 September 2022.[50] Annexure D of the Carruth Report includes the table reproduced below:[51]

a) Completion Statement, Accounts and Completion EBITDA

To verify the calculation of Completion Breakage Amounts of $50,467,676 stated in the 2nd FP Notice.

General ledger entries and underlying transactional records (including sample invoices and purchase orders) supporting the Completion Accounts

To substantiate the reported revenue and expense figures in the Completion Accounts and verify the integrity of the Completion EBITDA

Documentation supporting the calculation of Completion EBITDA and Completion Breakage Amount including but not limited to:

(a) Explanatory schedules and working papers supporting the calculation of Completion EBITDA, including any assumptions, methodologies, or adjustments applied;

(b) A reconciliation between the breakage schedules and the figures reported in the Completion Accounts

To undertake a complete and informed review of the Completion Accounts and verify whether the Completion EBITDA and Completion Breakage Amount have been calculated in accordance with the methodology prescribed in the Share Sale Agreement.

b) December 2022 Accounts for Second and Third Estimate

General ledger entries and underlying transactional records (including sample invoices and purchase orders) supporting the December 2022 Accounts (Second and Third Estimate)

To verify the completeness of these accounts and the accounting methodology applied to them

Confirmation that the December 2022 Accounts were prepared by Mr Jonathon Mould in consultation with Walker Wayland, in accordance with Clause 7.2(c) of the SSA

To confirm that the accounts were prepared in accordance with the requirements of the SSA

c) December 2022 EBITDA for Second and Third Estimate

General ledger entries and underlying transactional records (including sample invoices and purchase orders) supporting the December 2022 EBIDTA (Second and Third Estimate)

To substantiate the reported revenue and expense figures and verify the integrity of the December 2022 EBITDA.

Documentation supporting the calculation of December 2022 EBITDA and December 2022 Breakage Amount including but not limited to:

(a) Explanatory schedules and working papers supporting the calculation of December 2022 EBITDA, including any assumptions, methodologies, or adjustments applied;

(b) A reconciliation between the breakage schedules and the figures reported in the December 2022 Accounts

To undertake a complete and informed review of the December 2022 Accounts and verify whether the December 2022 EBITDA have been calculated in accordance with the methodology prescribed in the Share Sale Agreement.

Underlying documents detailing the normalisation adjustments made to the EBITDA figures and the reconciliations of the normalisation adjustments

To review the normalisation adjustments required for the Completion EBITDA and December 2022 EBITDA calculations. This is to confirm that all one-off, non-recurring, or extraordinary items have been appropriately adjusted, and to ensure the final EBITDA figures are prepared in accordance with the agreed accounting principles and standards and to independently verify the normalisation adjustments made.

d) December 2022 Breakage for Second Estimate and Third Estimate

The original reports and working files prepared by Card Compliant LLC, including all documentation detailing the assumptions, input data, and methodology used to derive breakage rates.

To conduct a thorough and informed review of the breakage estimate and to understand how expiry patterns, breakage rates were determined.

Clarification as to which card products and issue amounts were included or excluded from Card Compliant LLC's analysis.

To understand the scope and basis of Card Compliant LLC's breakage calculations as they relate to the Further Payment.

Underlying documents detailing the assumptions, input data, and methodology used to derive breakage rates and spend velocity.

To conduct a thorough and informed review of the breakage estimate and to understand how expiry patterns, breakage rates, and spend velocity were determined.

Commission model with detailed calculations based on December 2022 Breakage, including supporting documents such as commission policies and rates applicable to sales in calendar year 2022.

To understand the commission calculations and how it reflect the impact of the Breakage. Supporting documents detailing the commission rates and policies applicable in 2022 are used to verify the methodology and to determine the appropriate commission adjustments based on the breakage estimates.

e) Calculation of the Breakage Differential Amount

A copy of the Completion Statement, accompanied by all underlying source/support data and assumptions to verify the Completion Breakage Amount

To verify the Completion Breakage Amount used in the FP Notice and 2nd FP Notice.

The underlying documentation supporting the Final Breakage Amount, which includes but not limited to the items listed in item 9 above relating to Card Compliant LLC's report and calculations

To verify the calculation of the Final Breakage Amount, which is derived from the breakage estimate.

52 On 16 April 2025, InComm sent a letter to Mr Hewitt, responding to the Disputed FP Matters of the Sellers FP Report dated 25 March 2025. It annexed several documents, including an email from Mr Mould to Olivia Parsons of Card Compliant, which attached instruction profiles for the production of Card Compliant reports.[52]

53 On 2 July 2025, Mr Carruth provided a supplementary report, based on instructions received from Indi on 30 June 2025 as to the documents he required to advise Indi in respect of its submissions for an Independent Accountant Dispute Resolution process and why he required those documents. The documents Mr Carruth required were largely the same as those identified in the Carruth Report. The supplementary report was provided to InComm on the same day.[53]

(a) an affidavit of Richard Hewitt dated 11 December 2024 and its exhibits;

(b) a second affidavit of Richard Hewitt dated 27 June 2025 and its exhibits;

(c) an affidavit of Ryan Carruth dated 2 July 2025 and its exhibits;

(d) an affidavit of Jonathan Mould dated 31 July 2025 and its exhibits;

(e) further documents contained in the supplementary court book.

55 The only witness required for cross-examination was Mr Mould.

56 The particular issues in dispute in this proceeding may be summarised as follows:

(a) Is Indi entitled to the Source Data, the Breakage Brief, any communications between InComm and Card Compliant, and all documents relied upon to prepare the FP Notices pursuant to clauses 7.2, 7.4 and 7.11 of the SSA?

(b) Is Indi entitled to the information, including underlying ledgers and sample invoices, relating to the calculation of the December 22 EBITDA (Base) pursuant to clause 7.2?

(c) Has InComm provided the Card Compliant reports to Indi pursuant to clauses 7.2(a), 7.4(a) and 7.11(a)?

(d) Is Indi otherwise entitled by clause 7.16(a) to the categories of information requested under clause 7.2, 7.4 or 7.11 if they do not fit within the terms of those clauses?

(e) Is Indi entitled to the documents it has requested pursuant to clause 7.16(b), which its adviser, Mr Carruth, says he needs to conduct a review of the calculations?

(f) Is Indi entitled to current versions of Power BI exports attached to the email of 31 October 2023 from Mr Mould to Mr Hewitt?

D.1 Is Indi entitled to Source Data, the Breakage Brief, communications between InComm and Card Compliant, and documents relied upon to prepare the FP Notices, pursuant to clauses 7.2, 7.4 and 7.11?

57 In oral submissions, Indi framed the dispute as 'less of a construction issue' but a question of whether InComm had provided the documents to satisfy the terms of clauses 7.2, 7.4 and 7.11. Senior counsel for Indi noted that Mr Mould conceded in cross-examination that the Card Compliant reports were dependent on the Source Data extracted from TCNAdmin, and that the material had not been provided to Indi in relation to both clauses 7.4 and 7.11.[54]

58 Indi submitted that the failure to provide the Source Data was especially problematic in circumstances where there was a discrepancy of Issue Amounts in the spreadsheets provided by InComm across the different FP Notices of some $1.5 million. Senior counsel for Indi referred to the cross-examination of Mr Mould in which he explained that the discrepancy resulted from 'kick-outs', which were cards not included in the relevant calculations because of inconsistencies in the data relating to them. However, Indi observed that in the Card Compliant PDF reports, kick-outs were said to total some $21,000. These discrepancies raised a number of questions that required the underlying Source Data to answer.[55]

59 Indi's submissions relating to the provision of Source Data pursuant to clause 7.2 were more limited. Senior counsel for Indi submitted that Indi was still entitled to the supporting material under that clause, and it was relevant in circumstances where Issue Amounts had been changing over time and therefore would 'inform how [Indi] analysed the later material'.[56]

60 In relation to the Breakage Brief and other communications with Card Compliant, Indi submitted that InComm had not provided this information as was required by the terms of clauses 7.2, 7.4 and 7.11. It submitted that the Breakage Brief ought to include Source Data.[57]

61 In relation to the provision of documents underlying the preparation of the FP Notices, Indi submitted that this was required pursuant to clauses 7.4 and 7.11 and that preparation of the FP Notices would have necessitated the following:

(a) review of the estimated revenue and breakage for each channel using sales and spend data (broken down by month) extracted from TCNAdmin and Power BI;

(b) review of sales and spend data for each channel (broken down by month) extracted from TCNAdmin and Power BI, including channel specific data, and for channel 'B2B', client specific data;

(c) application of one or more methodologies for the calculations, which methodology ought be discernible from the underlying formula in spreadsheets (i.e. spreadsheets that are not hard-coded).[58]

62 InComm submitted that on a proper construction, the words 'supporting information, calculations and documentation' in clauses 7.2, 7.4 and 7.11 do not embrace Source Data.[59]

63 InComm submitted that clause 7 of the SSA sets out a five-stage process for the calculation of the Further Payment. The first stage involves clause 7.1 and its obligations on the Sellers to provide calculations relevant to Completion. The second stage involves the provision of calculations and the review process provided for under clauses 7.2 and 7.3. The third stage involves the calculations and information that InComm must provide under clause 7.4, including the calculation of the Further Payment pursuant to clause 7.5, and the process for review and dispute provided for under clauses 7.6 to 7.10. The fourth stage is a similar process to the third, with the calculations and information to be provided under clause 7.11, and the same clauses 7.5 to 7.10 being applied for the calculation, review and dispute process. The fifth and final stage is the Final FP Notice calculation under clause 7.12, which then flows through to the Independent Account dispute resolution process under clauses 7.13 and 7.14.[60]

64 InComm noted that the structure of this staged process involves a limited window of time at the third and fourth stages - namely, 20 business days for Indi to review the material provided under clause 7.4 or 7.11 and respond indicating agreement or non-agreement and a further 20 business days for the parties to engage in good-faith discussions to resolve any non-agreement.[61]

65 InComm further noted that the parties elected to have Card Compliant provide a calculation of estimated breakage at the second, third and fourth stages. InComm referred to Part 3 of Schedule 7 to the SSA, in which the Breakage Brief was defined, and pointed in particular to the phrase 'acknowledging that Card Compliant has final determination of its calculations and report'. InComm submitted that the parties thereby acknowledged that Card Compliant would finally determine the matters comprising its calculations and report for the purposes of clauses 7.2, 7.4 and 7.11.[62]

66 Drawing these two contextual observations together, InComm submitted that clause 7 establishes an expedient process in which Card Compliant's estimates are provisional but create the possibility of an early Further Payment if the parties reach agreement within the limited review windows at the third or fourth stage. However, InComm characterised stage five as the 'main game' - the point at which final breakage numbers would ultimately be determined. On this construction, Indi had no entitlement to Source Data because the limited review windows had elapsed and Card Compliant was to deliver the relevant calculations over which it had final determination.[63]

67 InComm submitted that although the same obligation to provide 'information, calculations and documentation' was included in clause 7.1, that was not to be read in the same way as it 'has a different context'.[64]

68 InComm further submitted that its construction of the obligation was supported by the fact that it would have been simple for the parties to have included a reference to Source Data explicitly in clauses 7.2, 7.4 and 7.11 but they did not do so.[65]

69 InComm submitted that there were also no relevant communications to Card Compliant in writing that were not produced. InComm had provided to Indi on 16 April 2025 copies of relevant instructions it had provided to Card Compliant which were in the same form as those that had been provided to InComm in the data room for the sale of TCN. Senior counsel for InComm referred to the evidence of Mr Mould in which he stated the relevant information that had been provided to support this proposition.[66] In the alternative, InComm submitted that there was no contractual obligation to provide such communications. It would have been easy for the parties to have explicitly required the provision of the communications with Card Compliant in the SSA if they had wished.[67]

70 InComm submitted that Mr Mould had also provided all other information on which InComm relied to prepare the FP notices.[68] Indi had not requested any specific information other than Source Data that had not been provided, and Source Data was not required to be provided for the reasons already advanced.[69]

71 In reply to InComm's submission that the reference to 'supporting information, calculations and documentation' in clauses 7.2, 7.4 and 7.11 did not embrace Source Data, Indi submitted that there was an equivalent reference in clause 7.12. Clause 7.12 required InComm to prepare the Final FP Notice itself, and such preparations would necessarily be made on the basis of Source Data. Indi therefore submitted that if equivalent phrases in the contract are to have the same meaning, then the references in clauses 7.2, 7.4 and 7.11 must also embrace Source Data.[70]

72 Indi further submitted in reply that it faced an 'information asymmetry' which required provision of Source Data to rectify. Without this information, Indi would be disadvantaged in preparing submissions to the Independent Accountant within the limited time frames prescribed by the SSA.[71]

73 As to the provision of communications between InComm and Card Compliant, Indi submitted that it was 'unquestionable that instructions were provided by InComm to Card Compliant'. Indi was seeking information relating to the production of reports and calculations pursuant to clauses 7.2, 7.4 and 7.11, which must include such instructions.[72]

D.2 Is Indi entitled to the information, including underlying ledgers and sample invoices, relating to the calculation of the December 22 EBITDA (Base) pursuant to clause 7.2?

74 InComm submitted that the parties had agreed to the December 22 EBITDA (Base) and 'nothing in the evidence [was] said about a need to have a wholesale audit of the [December 22] EBITDA (Base)'.[73]

75 Indi submitted that it was not necessary to resolve the question of whether Indi had agreed to InComm's calculation of the December 22 EBITDA (Base), because Indi's entitlement to the underlying material was independent of any agreement about the figure. Indi's access to that material remained relevant insofar as the December 22 EBITDA (Base) was a figure that carried forward through the Further Payment calculation process.[74]

76 Indi referred to Mr Mould's concession in cross-examination that it would be necessary to consider the underlying ledgers and sample invoices to form a view about the correctness of the December 22 EBITDA (Base) calculation, and that Indi did not have access to that information. On that basis, Indi submitted that those materials fell within clause 7.2 because they are supporting information or documentation relevant to the calculation of the December 22 EBITDA (Base).[75]

D.3 Has InComm provided the Card Compliant reports?

77 Indi submitted that the Card Compliant PDF reports did not adequately meet the description of Card Compliant reports despite the express obligation in clauses 7.2(a), 7.4(a), and 7.11(a)(i) requiring their provision. Indi emphasised that InComm had not produced a 'single standalone report that satisfies [the] time period' of CY22.[76]

78 Indi further submitted that the spreadsheets with tabs, including Card Compliant calculations, did not meet the description of Card Compliant reports. Relying on the cross-examination of Mr Mould,[77] Indi highlighted that the spreadsheets only included extracts of Card Compliant reports and were not the reports themselves.[78]

79 InComm submitted that the spreadsheets are the reports it has provided in fulfilment of its requirement to provide Card Compliant reports pursuant to clauses 7.2, 7.4, 7.11 (rather than the Card Compliant PDF reports).[79]

80 InComm submitted that there is no dispute that the purported Card Compliant reports comprise reports regarding CY22. Rather, the issue raised by Indi is that these spreadsheets do not resemble the Card Compliant PDF reports. InComm pointed to Mr Mould's evidence indicating that Card Compliant provided a report containing CY22 data alongside data from other years, and that the non-CY22 data was subsequently removed.[80]

D.4 Is Indi alternatively entitled to the Source Data, Breakage Brief, Card Compliant reports and communications, and documents relied upon to prepare the FP Notices under clause 7.16(a)?

81 Indi's primary submission was that reliance on clause 7.16(a) was unnecessary, because the information it sought was captured by clauses 7.2, 7.4 and 7.11. Nevertheless, it advanced clause 7.16(a) as an independent basis upon which it had requested and was entitled to receive the material it sought under those clauses.[81]

82 Indi accepted that clause 7.16(a) required that the information sought was reasonably requested and that any information requested under the clause was for the purpose of preparing, reviewing or agreeing to the relevant FP Notices. It submitted that the information it sought satisfied those requirements because the FP Notice calculation involves both a calculation of the December 22 EBITDA (Base) as well as a calculation of the breakage amount and the information sought is information underlying these calculations.[82]

83 Indi further submitted that it was not an answer to say that the FP Notice process had 'played out' for clauses 7.4 and 7.11 because the FP Notices were still the subject of ongoing review, especially because the final determination of the Further Payment by the Independent Accountant was due to take place next year. Indi submitted that the requests for further information under clause 7.16(a) were made in time, and it would be commercially unworkable for the obligation to provide information to be ineffective after that time had passed.[83]

84 InComm submitted that clause 7.16(a) had expired on its proper construction because the clause is expressly limited to be for the stipulated purpose of enabling Indi to review and agree to the FP Notices.[84]

85 InComm submitted that clause 7.6 provides a window of 20 business days after which Indi would be deemed to have accepted the relevant FP Notice. This is an expedient process for seeking to reach agreement, and clause 7.16 is only available during this period. If a response by InComm was not provided in that period, despite a request, then Indi could seek specific performance within the period, or if the period had elapsed, such a response would be rendered unnecessary because the process for reviewing and agreeing to the FP notice is 'in the rear-view mirror' and any ongoing disagreement could be resolved under the Independent Accountant process.[85]

86 InComm submitted in the alternative that the request must also be reasonable. InComm submitted that a request for Source Data under this clause was not reasonable for the reasons advanced in respect of the construction of clause 7 and InComm's analysis of the definition of Breakage Brief described above at [63]-[[[86]](2025_687.html > It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.[99]

99 In Selak v National Tiles Co Pty Ltd (No 4), observing that these principles had been 'addressed and restated in countless authorities',[100] Connock J set out the principles relating to the construction of commercial contracts in greater detail:

The proper approach to the construction of commercial contracts was succinctly stated by the Court of Appeal in PCCEF Pty Ltd v Geelong Football Club Ltd (PCCEF) as follows:[101]

The judge set out the principles governing the construction of the Lease in a manner that in uncontroversial. In short, the primary duty of a court construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. The meaning of the contractual terms is to be determined objectively, by reference to what a reasonable business person would have understood the terms to mean.[102] The proper approach involves consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract or lease.[103] Ordinarily, the process of construction is possible by reference to the contract alone.[104] At least where the language of the commercial contract is ambiguous or susceptible of more than one meaning, evidence of the surrounding circumstances is admissible to assist in the interpretation of the contract.[105]

The Court of Appeal in Aventus Cranbourne Thompsons Road Pty Ltd v Home Consortium Leasehold Pty Ltd[106] addressed the topic in more detail, in the following terms:

The general principles applicable to the construction of contracts apply equally to leases.[107] The general principles to be applied in the construction of commercial contracts were summarised by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd in the following terms:

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contact) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract.

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. It may be necessary in determining the proper construction where there is a constructional choice.

Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption 'that the parties ... intended to produce a commercial result'. Put another way, a commercial contract should be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'.[108]

In Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd, Kiefel, Bell and Gordon JJ said:

It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it

Clause 4 is to be construed by reference to the commercial purpose sought to be achieved by the terms of the lease. It follows, as was pointed out in the joint judgment in Electricity Generation Corporation v Woodside Energy Ltd, that the court is entitled to approach the task of construction of the clause on the basis that the parties intended to produce a commercial result, one which makes commercial sense. It goes without saying that this requires that the construction placed upon cl 4 be consistent with the commercial object of the agreement.[109]

In addition, the Court must have regard to all of the words used in the agreement 'so as to render them all harmonious one with another'[110] and to ensure the 'congruent operation [of] the various components [as] a whole'.[111] In Kosciusko Thredbo Pty Ltd v Commissioner of Taxation (Cth), the High Court observed that: 'permitted use provisions, like any other provision in a written document, must be construed according to their terms and as part of the entire document'.[112]

Drawing on the reasons of Tate JA in Apple and Pear Australia Ltd v Pink Lady America LLC,[113] the Court in PCCEF emphasised that while a court should construe a commercial contract to avoid commercial nonsense, it is not part of its role to construe an agreement that otherwise has an explicable commercial result in a manner that increases the commercial benefits to one party to the agreement.[114]

The instructive observations of the High Court in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd[115] regarding the role of the honest and reasonable businessperson, and poorly drafted agreements, also warrant extraction:

Finally, it is to be observed that, even if the resultant lease were considered to be a remarkably poor deal from the Lessor's point of view (and, to repeat, it is not obvious that it should be so regarded), the precept that commercial contracts be construed as it is thought an honest and reasonable businessperson would construe them will stretch only so far. As Lord Mustill observed in Charter Reinsurance Co Ltd v Fagan:[116]

"There comes a point at which the court should remind itself that the task is to discover what the parties meant from what they said, and that to force upon the words a meaning which they cannot fairly bear is to substitute for the bargain actually made one which the court believes could better have been made. This is an illegitimate role for a court."

Poor drafting may justify a court in being more ready to depart from the natural and ordinary meaning of the terms of a contract,[117] and no doubt, the poorer the drafting, the less willing a court should be to be "driven by semantic niceties to attribute to the parties an improbably and unbusinesslike intention".[118] But poor drafting provides "no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language they have used interpreted in the light of the relevant factual situation in which the contract was made".[119] Where there is ambiguity which permits of two alternative and semantically not improbable interpretations, construction in accordance with what it may be supposed would be the approach of honest and reasonable businesspersons may assist in choosing one such alternative over the other. But where, as here, the language and surrounding circumstances of a commercial contract present a choice between, on the one hand, a plain, ordinary and commercially not irrational meaning of a clause and, on the other, a meaning which is significantly removed from the natural and ordinary meaning of the terms of the clause, which ill-accords with other provisions of the agreement, and which in the end produces an outcome that is more commercially acceptable from one of the parties' point of view only, the precept runs out of application. Unless the Anglo-Australian objective theory of contract is now to be cast aside, the commercial approach to construction[120] is not a licence to alter the meaning of a term that is "clear and fairly susceptible of one meaning only" to achieve a result that the court may think to be reasonable.[121] The court is not authorised under the guise of construction to make a new contract for the parties at odds with the contract to which they have agreed.[122] Where, as here, all things considered, the words of a clause are fairly susceptible of only one meaning, they must be given that effect.

100 There is also a well-established presumption in the construction of commercial contracts, as in the interpretation of statutes and wills, that words and phrases appearing more than once have the same construction in each instance they appear.

101 In Walsh v Alexander (Walsh),[123] Isaacs J - considering an ambiguous statutory phrase - applied a statement by Sir Lindley MR in a will case:

[I]f you find in the one part of a document - whether an Act or other instrument - a word or phrase used in a manner that leaves no doubt as to its definite meaning, there is a presumption that it is so used elsewhere, where, by itself, its meaning is not clear. The immediate context may, of course, alter that; but the presumption is a fair one to start with. Lindley MR says that whether such a consideration is law, or a canon of construction, he does not know, but he regards it as good sense; and he acted on it. Sir Francis Jeune, in the same case, said that to proceed otherwise would be doing less than justice to common sense. See In re Birks; Kenyon v Birks.[124] Of course, it is only a working rule, and has to yield to the control of the words in connection with which in any particular place the word or phrase in question is used.[125]

102 In Craig Williamson Pty Ltd v Barrowcliff, Hodge J stated:

I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.[126]

103 These statements have later been employed by the Victorian Court of Appeal in commercial contract cases. Nettle JA cited the decision of Isaacs J in Walsh in construing the service provisions of a deed in APN Funds Management Ltd v Australian Property Investment Strategic Pty Ltd.[127] In that case, clause 5 of the relevant contract provided that a put option may be exercised by 'delivering' a relevant notice, but was silent as to the permissible means of delivery. Clause 16 relevantly distinguished between 'hand delivery' and 'delivery'. Accordingly, 'delivery' in clause 5 was not confined to 'hand delivery', as it was to be presumed, in the absence of any indication to the contrary, that terms were used consistently throughout the deed.[128]

104 The presumption was again referred to by the Victorian Court of Appeal in Lumley General Insurance Ltd v Port Phillip City Council,[129] where Santamaria JA (Nettle and Weinberg JJA agreeing), in identifying who the relevant 'insured' was under a policy of insurance, stated:

The last reference to 'Insured' must be a reference to Kane alone. There is nothing to disturb the presumption that, where the same word is used on more than one occasion in the same clause, its meaning in each such use will be univocal.[130]

105 A differently constituted Court of Appeal in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd[131] stated that:

As senior counsel for Dura properly conceded, it is a principle of contractual interpretation - as it is of statutory interpretation - that, where parties to a carefully drafted agreement have used the same word more than once in the document, they intended that it have the same meaning each time.[132] This is, of course, a rebuttable presumption. The particular context in which a word is used may disclose a contrary intention.[133]

106 In that case, a builder contended that it was not bound by a superintendent's certificate as the superintendent's processes had not complied with the requirements of the contract. Specifically, it argued that in order to 'ascertain' the cost to complete work under clause 44.6, the costs must be known with precision and could not be estimated using experience, judgment or discretionary decision-making. Rejecting this argument,[134] the Court referred to the use of the word 'ascertain' in clause 40.5, concluding:

It is clear from the language of this clause that the parties intended by their use of the word "ascertain" to authorise a process of computation which would, where necessary, involve judgment, estimation and approximation ...

It is to be presumed that the parties intended the word "ascertain" to have the same meaning in cl 44.6 There is nothing in the language or context of cl 44.6 to suggest otherwise. It follows that they intended to authorise the Superintendent, when carrying out the task of "ascertainment" under cl 44.6, to exercise judgment where necessary. What the Superintendent did ... was therefore within the scope of the "ascertainment" function conferred on him by cl 44.6. The parties are therefore bound by the Superintendent's certificate. That conclusion is sufficient to dispose of this ground of appeal.[135]

F.1 Is Indi entitled to Source Data, the Breakage Brief, communications between InComm and Card Compliant, and documents relied upon to prepare the FP Notices, pursuant to clauses 7.2, 7.4 and 7.11?

F.1.1 The proper construction of 'supporting information, calculations and documentation'

107 The phrase 'supporting information, calculations and documentation' must be construed according to its natural and ordinary meaning, understood in the commercial context in which it appears.

108 The phrase as a whole - 'supporting information, calculations and documentation' - is drafted in broad terms. Each individual word carries wide import, and the cumulative effect is to require provision of comprehensive material sufficient to enable meaningful review and verification.

109 The construction of this phrase must also be informed by the commercial purpose and context of clause 7 as a whole. Clause 7 establishes a sophisticated mechanism for calculating the Further Payment, which may amount to many millions of dollars. The calculation depends on complex estimates of breakage (unspent amounts on gift cards) which in turn depend on statistical analysis of historical spending patterns, treatment of different card types and sales channels, and judgments about future spending behaviour.

110 The SSA recognises that these calculations are complex and potentially contentious. It therefore provides for:

(a) multiple stages of calculation and review (clauses 7.2, 7.4, 7.11, 7.12);

(b) defined time periods for review and response (clause 7.6);

(c) a structured dispute resolution process through good faith negotiations (clause 7.10); and

(d) ultimate determination by an Independent Accountant if disputes cannot be resolved (clauses 7.13-7.14).

111 This elaborate structure would be undermined if the phrase 'supporting information, calculations and documentation' were construed narrowly. If Indi receives only summary figures or high-level explanations, it cannot conduct the meaningful review that clause 7 contemplates. The 20 business day review period in clause 7.6 would be illusory if Indi does not receive sufficient information to identify whether there are errors or grounds for dispute.

112 Moreover, the Independent Accountant process under clause 7.13 expressly contemplates that the Independent Accountant will 'review the documents submitted by the relevant parties' and may 'request specific historical documents'. If Indi is to make effective submissions to the Independent Accountant, it must have access to the same underlying information that InComm possesses. Information asymmetry would fundamentally compromise the fairness of the Independent Accountant process.

113 The commercial purpose of requiring provision of 'supporting information, calculations and documentation' is therefore clear: to enable informed review, to facilitate identification of any errors or disputes, to support good faith negotiations, and to ensure that any Independent Accountant determination is based on complete information. This purpose can only be achieved if the phrase is given its natural, broad meaning.

114 As is evident from the foregoing authorities, it is a well-established principle of contractual interpretation that the same words appearing in different parts of a contract should, absent contextual indications to the contrary, be given the same meaning.

115 The phrase 'together with supporting information, calculations and documentation' appears in substantially identical form in clauses 7.1, 7.2, 7.4, 7.11(a) and 7.12(a). There is no apparent reason why this phrase should bear different meanings in different clauses. Indeed, consistency of interpretation promotes certainty and accords with commercial common sense.

116 Clause 7.12 is particularly instructive. Under clause 7.12(a), InComm must calculate the December 22 Breakage (Final) and related figures itself, without reliance on Card Compliant reports. The calculation must be 'provide[d]... together with supporting information, calculations and documentation'. It is self-evident that such calculations cannot be made, nor meaningfully reviewed, without access to the underlying Source Data from TCNAdmin. The December 22 Breakage (Final) must be based on actual data regarding card balances, expiry dates, and amounts spent - precisely the information contained in Source Data.

117 If 'supporting information, calculations and documentation' in clause 7.12 in respect of the calculation of the December 22 Breakage (Final) necessarily includes Source Data, the same phrase in clauses 7.2, 7.4 and 7.11 must bear the same meaning. To hold otherwise would be to treat identical contractual language inconsistently without justification.

118 Similarly, clause 7.1 requires the Sellers to provide calculations 'together with supporting information, calculations and documentation'. Although there is no time limit imposed on this obligation in clause 7.1, the presence or absence of time limits in particular clauses does not alter what constitutes 'supporting information, calculations and documentation' - it merely affects when such material must be provided.

F.1.2 The significance of the Card Compliant reports being based on Source Data

119 Mr Mould conceded in cross-examination that the Card Compliant reports were dependent on the Source Data extracted from TCNAdmin.[136] This concession is significant.

120 If Card Compliant's calculations and reports are based on Source Data then that Source Data necessarily forms part of the 'supporting information, calculations and documentation' for the breakage estimates. One cannot properly review, verify or understand Card Compliant's methodology and conclusions without access to the underlying data upon which those conclusions rest.

121 This is particularly so given the complexities acknowledged in the SSA itself. Schedule 7 recognises different treatment for different sales channels (grocery versus B2B), different card products with varying characteristics, and the need to consider 'the specific transaction code mapping schedule'. These matters cannot be meaningfully assessed without the underlying data.

122 The evidence reveals troubling discrepancies in Issue Amounts, being the value of gift cards sold in CY22, across the various materials provided by InComm. These discrepancies amount to approximately $1.5 million, a figure that Indi notes is not insubstantial in the context of breakage calculations.

123 Mr Mould explained, in cross-examination, that these discrepancies arose from 'kick-outs', that is, cards excluded from calculations due to data inconsistencies. However, the Card Compliant PDF reports indicated kick-outs totalling only approximately $21,000, creating a further unexplained discrepancy of significant magnitude.

124 These inconsistencies cannot be investigated, explained or resolved without access to the Source Data. The very existence of these discrepancies demonstrates why Source Data constitutes necessary 'supporting information' - without it, Indi cannot understand whether InComm's calculations are correct or whether errors have been made.

125 InComm advances several arguments against requiring provision of Source Data.

126 First, it points to Part 3 of Schedule 7, which provides that 'Card Compliant has final determination of its calculations and report'. InComm submits this demonstrates that the parties intended to rely on Card Compliant's expertise without requiring granular scrutiny of underlying data.

127 This argument cannot be accepted. The phrase 'final determination' in the context of the Breakage Brief refers to Card Compliant's methodology and professional judgment in conducting its analysis - it does not operate to shield the underlying data from review.

128 Card Compliant's 'final determination' must still be reviewable by Indi to enable Indi to exercise its rights under clauses 7.6-7.10 to disagree with InComm's calculations and engage in good faith negotiations.

129 Moreover, the Independent Accountant dispute resolution process in clauses 7.13-7.14 contemplates substantive review of 'Disputed FP Matters'. This process would be meaningless if Indi were denied access to the foundational data necessary to formulate and support its position. An Independent Accountant cannot determine disputed breakage calculations without access to Source Data, and Indi must have that same data to prepare its submissions.

130 Secondly, InComm contends that the structure of clause 7 provides for an 'expedient process' with limited review windows, and that requiring provision of Source Data is inconsistent with this expedited structure. InComm characterises the earlier stages as provisional, with stage five (the Final FP Notice under clause 7.12) being the 'main game'.

131 This submission misconceives the operation of clause 7. While the SSA does provide time limits for review and dispute, these limits operate to ensure the process moves forward - they do not diminish the content of what must be provided at each stage. The 20 business day review period in clause 7.6 requires Indi to act promptly, but it does not permit InComm to provide inadequate information in the first place.

132 Further, Indi has consistently and promptly sought additional information at each stage. Its requests for Source Data in respect of the Second Estimate (clause 7.4) and Third Estimate (clause 7.11) were made within the applicable time frames. The fact that those stages have now passed does not retrospectively validate InComm's failure to provide required information.

133 Thirdly, InComm submits that, if the parties had intended to require provision of Source Data, they could have said so explicitly. By the same logic, if parties had intended 'supporting information, calculations and documentation' to exclude Source Data, they could have said so explicitly. The question is what the phrase means as a matter of construction, not whether it could have been drafted more precisely.

134 The phrase 'supporting information, calculations and documentation' is naturally apt to capture underlying data. 'Supporting information' is a broad phrase that encompasses material that underlies, explains or substantiates the calculations provided. Source Data plainly falls within this description.

135 For these reasons, I find that 'supporting information, calculations and documentation' in clauses 7.2, 7.4 and 7.11 includes Source Data. InComm was obliged to provide Source Data under these clauses and has failed to do so. Indi is entitled to an order requiring provision of that material.

136 The Breakage Brief is defined in clause 1 of the SSA as 'the instructions to Card Compliant to be given by the Buyer for the reports for Breakage in clause 7 accounting for paragraphs (b) and (d) of Part 2 of Schedule 7, as set out in Part 3 of Schedule 7'.

137 Part 3 of Schedule 7 specifies the matters that Card Compliant 'must be instructed' to consider, including the differences between 'grocery' and 'corporate/B2B' sales, each product channel based on a program profile, all card data for the relevant period as compiled by TCN, the specific transaction code mapping schedule, and the Australian market characteristics.

138 Clauses 7.2(a), 7.4(a) and 7.11(a)(i) each expressly require InComm to procure Card Compliant to 'calculate and provide a report (on the basis of the Breakage Brief)'. This makes clear that the Card Compliant reports are to be prepared following the instructions and parameters set out in the Breakage Brief.

F.1.7 The relationship between Source Data and the Breakage Brief

139 The Breakage Brief likely includes or incorporates the Source Data, given that Part 3(c) of Schedule 7 refers to 'all card data for the relevant period as compiled by the Company'. However, the Breakage Brief is broader than Source Data alone. It encompasses not merely the raw data, but the instructions, specifications, and contextual information necessary to enable Card Compliant to analyse that data in accordance with the SSA's requirements - including how different sales channels are to be treated, which product channels are to be analysed, how transaction codes are to be mapped, and what methodologies are to be applied.

140 The Breakage Brief is plainly 'supporting information' and 'documentation' within the meaning of clauses 7.2, 7.4 and 7.11. It is the foundational instructional document that defines the scope and parameters of Card Compliant's work. Without it, Indi cannot verify that Card Compliant was properly instructed in accordance with Part 3 of Schedule 7, or that the instructions given align with the contractual requirements.

141 InComm's submission that Part 3 of Schedule 7 acknowledges 'Card Compliant has final determination of its calculations and report' does not assist. As discussed above, this phrase relates to Card Compliant's professional methodology and judgement - it does not shield the instructions Card Compliant was given from scrutiny. The very purpose of defining and requiring a Breakage Brief is to ensure that Card Compliant's analysis is conducted on a specified basis aligned with the SSA's requirements. If the Breakage Brief actually provided by InComm to Card Compliant departed materially from Part 3 of Schedule 7, this would be a matter Indi is entitled to identify and dispute.

142 Part 3 of Schedule 7 refers to specific documents that form part of the Breakage Brief: the program profile identifying product and channel characteristics (Part 3(b)), card data for the relevant period (Part 3(c)), and the transaction code mapping schedule (Part 3(d)). Card Compliant cannot conduct its analysis based solely on the contractual language in Schedule 7 - it requires specific, concrete instructions identifying the actual data sources, files, transaction codes, product channels, and other inputs for TCN's particular business and the particular reporting period.

143 Notwithstanding the evidence relating to the provision of instruction profiles on 16 April 2025, InComm's evidence does not clearly address whether the Breakage Brief was provided to Indi. Given the technical nature of the information Card Compliant requires (data files, transaction codes, product specifications), these instructions must have taken documentary form - whether as briefing documents, email instructions, data specifications, or some combination thereof.

144 I am therefore satisfied that the Breakage Brief - being the actual instructions, data specifications, and supporting documents provided by InComm/TCN to Card Compliant for each report under clauses 7.2(a), 7.4(a) and 7.11(a)(i) - constitutes 'supporting information, calculations and documentation' that InComm was required to provide and must now provide to Indi.

(a) all briefing documents, instructions, or data specifications provided to Card Compliant;

(b) the program profiles identifying product characteristics (Part 3(b) of Schedule 7);

(c) the transaction code mapping schedule (Part 3(d) of Schedule 7);

(d) data files regarding card data for the relevant period (Part 3(c) of Schedule 7), to the extent not already provided as Source Data; and

(e) any supplementary instructions, clarifications, or modifications provided to Card Compliant.

146 To the extent the Source Data forms part of the Breakage Brief, there is no need for duplicate production.

147 Indi also seeks communications between InComm and Card Compliant relating to the preparation of the Card Compliant reports. Mr Mould gave evidence that instructions provided by InComm to Card Compliant took the form of emails or occurred during Teams meetings and conversations.[137]

148 Such communications as exist fall within 'supporting information' or 'documentation' to the extent that they relate to the preparation of the Card Compliant reports required under clauses 7.2(a), 7.4(a) and 7.11(a)(i). Instructions given to Card Compliant, clarifications sought or provided, and any exchanges regarding methodology or data issues would all constitute relevant supporting documentation.

149 The Breakage Brief defined in Schedule 7 and the SSA's express references to Card Compliant being instructed 'on the basis of the Breakage Brief' make clear that communications between InComm and Card Compliant are part of the documentation trail for the Card Compliant reports. To the extent such communications exist, they must be provided. This would include the Breakage Brief itself, to the extent that it extends beyond the Source Data.

F.1.7 Documents relied upon to prepare the FP Notices

150 The FP Notices under clauses 7.4 and 7.11 were based on material provided to and received from Card Compliant. The evidence establishes that InComm extracted Source Data from TCNAdmin and provided it to Card Compliant, which in turn used that Source Data to prepare its reports calculating breakage estimates. InComm then took those Card Compliant reports into consideration (as expressly required by clauses 7.4 and 7.11) in calculating the December 22 EBITDA estimates and the Further Payment set out in the FP Notices.

151 It follows that the Source Data provided to Card Compliant, and the reports and working files received from Card Compliant, are foundational documents underlying InComm's calculations. Without access to these materials, Indi cannot verify whether the Card Compliant reports are correct, and therefore cannot verify whether InComm's calculations based on those reports are correct.

152 The provision of 'hard-coded' spreadsheets without underlying formulas or data sources compounds this problem. Such spreadsheets show only final results, not the calculation process or the data inputs. They do not permit meaningful verification. This is particularly significant given the SSA's provision for dispute resolution by an Independent Accountant. Both Indi (in preparing submissions) and the Independent Accountant (in determining disputes) will require access to the Source Data provided to Card Compliant and the reports received from Card Compliant. These materials cannot sensibly be excluded from 'supporting information, calculations and documentation'.

153 The discrepancies in Issue Amounts across different FP Notices, which Mr Mould explained resulted from 'kick-outs', demonstrate why access to the underlying Source Data is necessary. Without that data, Indi cannot understand which cards were included or excluded from calculations, or verify the correctness of those decisions.

F.2 Is Indi entitled to the information, including underlying ledgers and sample invoices relating to the calculation of the December 22 EBITDA (Base) pursuant to clause 7.2?

154 Clause 7.2(b) requires InComm to 'calculate the December 22 EBITDA (Base)' and clause 7.2 requires provision of this calculation 'together with supporting information, calculations and documentation'.

155 InComm submits that the parties have agreed to the December 22 EBITDA (Base) figure and therefore no further information need be provided. Indi responds that its entitlement to underlying documentation is independent of whether agreement has been reached, and remains relevant because the December 22 EBITDA (Base) is carried forward into subsequent calculations.

156 I accept Indi's submission on this point. The December 22 EBITDA (Base) is not a standalone figure - it is expressly incorporated into subsequent calculations under clauses 7.4(b), 7.11(a)(ii) and 7.12(a)(ii).

157 Part 2(e) of Schedule 7 provides that the 'December 22 EBITDA (Base) must be calculated using the EBITDA derived from the December 22 Accounts'. Part 2(f) then provides that the December 22 EBITDA (Second Estimate), (Third Estimate) and (Final) must all be 'calculated using the December 22 EBITDA (Base) adjusted to include' the relevant breakage estimates.

158 Thus, the December 22 EBITDA (Base) is a foundational figure that flows through every subsequent stage of the Further Payment calculation. Any error in that figure would carry through and affect the ultimate Further Payment. Indi is entitled to verify the correctness of this foundational figure.

159 Mr Mould conceded, in cross-examination, that it would be necessary to consider underlying ledgers and sample invoices to form a view about the correctness of the December 22 EBITDA (Base) calculation. He also acknowledged that Indi does not have access to that information. This evidence supports the conclusion that such material constitutes 'supporting information' or 'documentation' for the purposes of clause 7.2.

160 General ledgers recording the revenue and expenses of TCN during CY22 are clearly supporting information for the calculation of December 22 EBITDA (Base). These ledgers show the transactions from which EBITDA is derived and are necessary to verify that the calculation has been performed correctly and in accordance with Schedule 7.

161 Sample invoices and underlying transactional records provide a further level of verification. While every invoice need not be produced (a matter I address further below in considering clause 7.16(b)), some representative samples are reasonably required to verify that ledger entries accurately reflect the underlying business transactions.

162 InComm's suggestion that agreement to the December 22 EBITDA (Base) precludes any entitlement to supporting documentation must be rejected. First, it is not clear that Indi has unconditionally agreed to the figure - Indi's correspondence has consistently maintained that InComm has not provided adequate supporting information. Secondly, even if there has been practical agreement for the purposes of progressing through the clause 7 process, this does not waive Indi's contractual entitlement to the supporting information to which it is entitled.

163 The commercial purpose of requiring provision of supporting information is to enable informed review and verification. This purpose is not defeated simply because parties reach pragmatic agreement to proceed to the next stage. Indi remains entitled to verify the correctness of calculations that affect the ultimate Further Payment, particularly given that the matter may proceed to Independent Accountant determination.

164 I therefore consider that Indi is entitled to general ledgers and a reasonable sample of underlying invoices and transactional records relating to the calculation of December 22 EBITDA (Base) pursuant to clause 7.2.

F.3 Has InComm provided the Card Compliant reports?

165 Clauses 7.2(a), 7.4(a) and 7.11(a)(i) each require InComm to 'procure Card Compliant, LLC or its successor... to calculate and provide a report' for specified breakage estimates.

166 The evidence establishes that InComm has provided two categories of documents it characterises as fulfilling this obligation:

(a) the Card Compliant PDF reports produced in March 2023, February 2024 and November 2024; and

(b) spreadsheets containing what Mr Mould described as extracts from Card Compliant reports (the purported Card Compliant reports).

167 Indi submits that neither category satisfies the contractual requirement.

168 In relation to the Card Compliant PDF reports, Indi points to extensive redactions and the fact that the reports cover a transaction period from 2019 to 2024, rather than focusing on CY22.

169 In relation to the purported Card Compliant reports, Indi submits these are merely spreadsheets containing extracts rather than the actual reports themselves.

170 The Card Compliant PDF reports cannot be accepted as fulfilling InComm's obligations under clauses 7.2(a), 7.4(a) and 7.11(a)(i) for several reasons.

171 First, these reports were produced only in July 2025,[138] long after the deadlines for provision of reports under clauses 7.2 (which required provision within 40 business days after 31 December 2022), 7.4 (which required provision within 40 business days after 31 December 2023) and 7.11 (which required provision within 40 business days after 31 December 2024). While timing alone might not be fatal if the reports were ultimately provided, the late production compounds the other deficiencies.

172 Secondly, many of the reports are extensively redacted. Large portions of the reports are blacked out, preventing Indi from understanding Card Compliant's full methodology, assumptions and calculations. A redacted report cannot constitute adequate provision of a report for the purposes of enabling review under clauses 7.6-7.10.

173 Thirdly, and most significantly, the reports do not provide the calculations specifically required by the relevant clauses. Clauses 7.2(a)(i), 7.4(a)(i) and 7.11(a)(i) each require reports 'for the' specified breakage estimates - that is, focused on CY22 gift cards. The Card Compliant PDF reports span either 2019-2022 or 2019-2024, making it difficult or impossible for Indi to extract the specific CY22 calculations required.

174 Fourthly, Mr Mould's evidence did not clearly identify the Card Compliant PDF reports as the documents InComm relies upon to fulfill its obligations under clauses 7.2(a), 7.4(a) and 7.11(a)(i). Instead, InComm's submissions focus on the purported Card Compliant reports contained in spreadsheets.

F.3.2 The purported Card Compliant reports in spreadsheets

175 InComm submits that the spreadsheets it has provided - containing tabs with Card Compliant logos and calculations - constitute the Card Compliant reports required under clauses 7.2(a), 7.4(a) and 7.11(a)(i).

176 This submission cannot be accepted. The evidence establishes that these spreadsheets were prepared by Mr Mould and contain extracts or summaries from Card Compliant reports, not the reports themselves. Mr Mould confirmed, in cross-examination, that the spreadsheet tabs were extracts of Card Compliant reports, not complete reports.[139]

177 The contractual obligation is to 'procure Card Compliant, LLC ... to calculate and provide a report'. This language contemplates Card Compliant producing a report, not InComm or TCN personnel extracting portions of Card Compliant material and incorporating them into spreadsheets.

178 The distinction is material. A report prepared by Card Compliant would include:

(a) Card Compliant's methodology and assumptions;

(b) explanations of how data was treated;

(c) discussion of any data quality issues or adjustments;

(d) Card Compliant's professional conclusions and qualifications; and

(e) complete calculations showing how final figures were derived.

179 By contrast, spreadsheet extracts prepared by Mr Mould may omit relevant context, methodology and explanatory material. They present selected numbers without the supporting narrative and analysis that would be included in a proper report.

180 Moreover, the fact that these spreadsheet tabs are 'hard-coded' - containing only final numbers without the underlying formulas or data - reinforces that they are summaries rather than the actual reports. The SSA does not contemplate provision of summaries; it requires provision of the reports themselves.

181 InComm's reliance on Mr Mould's evidence that Card Compliant provided reports containing CY22 data alongside data from other years, and that other data was simply 'removed', does not assist. If Card Compliant provided reports, those reports should have been provided to Indi in the form Card Compliant prepared them (subject to any legitimate redactions for proprietary information unrelated to the SSA calculations). What should not occur is InComm filtering or restructuring Card Compliant's reports and then claiming to have provided 'the Card Compliant reports'.

182 I am therefore satisfied that InComm has not provided the Card Compliant reports required under clauses 7.2(a), 7.4(a) and 7.11(a)(i). InComm must provide the actual reports prepared by Card Compliant in unredacted form to the extent they relate to the calculations required under the SSA.

F.4 Is Indi alternatively entitled to the Source Data, Breakage Brief, Card Compliant reports and communications, and documents relied upon to prepare the FP Notices under clause 7.16(a)?

183 Clause 7.16 provides an independent basis upon which Indi may seek information. Given my conclusions above that Indi is entitled to Source Data and other materials under clauses 7.2, 7.4 and 7.11, the question of clause 7.16(a) arises only as an alternative basis of entitlement.

184 Clause 7.16(a) requires InComm to procure TCN to 'permit representatives of the Buyer and the Sellers to have access to and take extracts from the books, correspondence, accounts or other records relating to the Group as the Buyer or the Sellers reasonably request in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice'.

185 InComm's primary submission is that this clause has 'expired' because the time periods for review of the FP Notices under clauses 7.6 and 7.10(b) have passed. InComm characterises the review and agreement process as being 'in the rear-view mirror' and suggests that clause 7.16(a) is no longer operative.

186 This construction must be rejected for several reasons.

F.4.1 The ongoing nature of the review and agreement process

187 First, the FP Notices have not been agreed. Indi has consistently disputed the calculations in the notices provided under clauses 7.4 and 7.11. Clause 7.6 provides a 20 business day period for Indi to examine and review, but if Indi disagrees (as it has), clause 7.8 applies and requires Indi to set out Disputed FP Matters.

188 Clause 7.10(a) then requires the parties to 'enter into good faith negotiations and use all reasonable endeavours to agree the Disputed FP Matters'. If agreement is not reached within 20 business days after delivery of the Sellers FP Report, clause 7.10(b) provides for partial payment and deferral of disputed amounts.

189 The matter then proceeds through further stages under clauses 7.11 and 7.12, potentially culminating in Independent Accountant determination under clauses 7.13 and 7.14. Indi's Sellers FP Reports in respect of both the FP Notice and 2nd FP Notice set out numerous Disputed FP Matters that remain unresolved.

190 In these circumstances, it cannot be said that the process of 'review of, and agreement to' the FP Notices has concluded. To the contrary, that process is ongoing and will continue through to final determination. The fact that the initial 20 business day review periods have expired does not mean the substantive review process is complete.

191 This interpretation gives commercial efficacy to clause 7.16(a). The alternative construction advanced by InComm would render the clause nugatory in any disputed case. Whenever Indi disagreed with a calculation and the 20 business day period expired without agreement, InComm could claim that clause 7.16(a) had ceased to operate. This would mean that clause 7.16(a) could never be relied upon to obtain information necessary for good faith negotiations under clause 7.10(a) or for preparing submissions to an Independent Accountant under clause 7.13.

192 Such a construction would be commercially absurd. The parties cannot have intended that Indi's entitlement to access information would evaporate at precisely the time when information is most needed - when calculations are disputed and must be resolved through negotiation or independent determination.

F.4.2 The relationship between clauses 7.2, 7.4, 7.11 and clause 7.16(a)

193 Secondly, InComm's construction fails to account for the relationship between the specific obligations in clauses 7.2, 7.4 and 7.11 and the more general access right in clause 7.16(a).

194 As I have found above, clauses 7.2, 7.4 and 7.11 require provision of supporting information, calculations and documentation - including Source Data - at the time the relevant calculations are provided. Clause 7.16(a) operates as a complementary mechanism enabling Indi to request additional access if needed for review and agreement purposes.

195 The fact that Indi has requested Source Data under clause 7.16(a) does not mean that clause is the exclusive or even primary basis of entitlement. Rather, Indi properly relies on clause 7.16(a) as an alternative ground in circumstances where InComm disputes its obligations under clauses 7.2, 7.4 and 7.11.

196 Moreover, the temporal sequence supports Indi's construction. Indi made requests for information under clause 7.16(a) both within and after the initial review periods. The initial requests were made promptly when Indi determined that the material provided under clauses 7.4 and 7.11 was insufficient. The fact that InComm refused to provide the requested material, necessitating this proceeding, does not transform Indi's timely requests into tardy ones.

F.4.3 The concept of flow-through between stages

197 Thirdly, the commercial operation of clause 7 supports an interpretation that permits ongoing access to information.

198 The December 22 EBITDA (Base) calculated at the clause 7.2 stage is expressly carried forward into all subsequent calculations under clauses 7.4, 7.11 and 7.12. Similarly, breakage estimates are refined through successive stages as more data becomes available.

199 This structure of 'flowing through' figures from earlier stages to later stages means that information and calculations from earlier stages remain relevant throughout the entire process. Indi's ability to review and agree (or dispute) calculations at later stages necessarily depends upon being able to verify the correctness of foundational figures from earlier stages.

200 If Indi discovered an error in the December 22 EBITDA (Base) while reviewing the December 22 EBITDA (Second Estimate), it would be entitled to raise that error as a Disputed FP Matter even though the 'stage' for calculating the December 22 EBITDA (Base) had notionally passed. This demonstrates that the obligations to provide supporting information at earlier stages are not extinguished simply because time has moved on.

201 Clause 7.16(a) facilitates this ongoing review function by ensuring Indi can access relevant records as needed to verify calculations that span multiple stages.

202 InComm submits that even if clause 7.16(a) remains operative, Indi's requests are unreasonable.

203 The reasonableness of specific requests is better addressed in the context of clause 7.16(b) and Mr Carruth's detailed requests. However, I note that requests for Source Data and Card Compliant reports are plainly reasonable in circumstances where:

(a) these materials are necessary to verify calculations affecting millions of dollars in potential Further Payment;

(b) significant discrepancies have been identified in the materials InComm has provided;

(c) the SSA contemplates detailed review potentially culminating in Independent Accountant determination; and

(d) the materials requested are within InComm's possession or control through its ownership of TCN.

204 Nothing in clause 7.16(a) limits reasonable requests to only those materials that InComm was required to provide under clauses 7.2, 7.4 and 7.11. The phrase 'books, correspondence, accounts or other records relating to the Group' is deliberately broad. So long as materials are reasonably required for reviewing and determining the FP Notices, they fall within the scope of clause 7.16(a).

205 I therefore consider that clause 7.16(a) provides an alternative basis for Indi's entitlement to Source Data, the Breakage Brief, Card Compliant reports, communications and documents relied on to prepare the FP Notices. The clause remains operative and Indi's requests are reasonable.

F.5 Is Indi entitled to the material sought by Mr Carruth pursuant to clause 7.16(b)?

206 Clause 7.16(b) requires InComm to procure TCN to 'provide or ensure the provision of all information and assistance that may reasonably be requested by the advisers of the Buyer and the Sellers in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice'.

207 Indi relies on the Carruth Report and supplementary report as articulating the information Mr Carruth requires to conduct his review. The categories of documents sought by Mr Carruth are set out in Annexure D to the Carruth Report, reproduced at paragraph [51] above.

208 As with clause 7.16(a), InComm submits that clause 7.16(b) has expired because the review periods for the FP Notices have passed. For the reasons set out above in relation to clause 7.16(a), I reject this submission.

209 The clause expressly extends to 'the preparation of, review of, and agreement to' the notices. The process of reaching agreement is ongoing and will continue through good faith negotiations and potentially Independent Accountant determination. Mr Carruth is Indi's adviser for this process and is entitled to request information reasonably required for that purpose.

210 Indeed, Mr Carruth's supplementary report was prepared for the specific purpose of advising Indi in respect of submissions to an Independent Accountant. This falls squarely within the purpose identified in clause 7.16(b).

211 InComm challenges Mr Carruth's expertise, suggesting he lacks specific experience in breakage calculations and is primarily an audit specialist.

212 This submission does not withstand scrutiny. Mr Carruth is a chartered accountant with extensive experience in business valuations, financial investigations and dispute resolution. His role is not to independently calculate breakage using his own methodology, but rather to review whether InComm's calculations have been performed correctly and in accordance with the SSA.

213 This is quintessentially work for which an experienced accountant is qualified. It requires understanding financial statements, verifying calculations, checking that methodologies align with contractual requirements, and identifying discrepancies or errors. Mr Carruth's expertise is appropriate for these tasks.

214 Moreover, the SSA itself contemplates that accountants will review these calculations. Clause 7.2(c) requires the December 22 Accounts to be prepared 'by JM... in consultation with Walker Wayland'. Clause 7.13 provides for disputes to be determined by an 'Independent Accountant'. The parties clearly intended that accountants would be involved in reviewing and determining the calculations in issue.

215 The more substantial question is whether the specific categories of documents requested by Mr Carruth are reasonable within the meaning of clause 7.16(b).

216 Clause 7.16(b) requires provision of 'all information and assistance that may reasonably be requested by the advisers of the Buyer and the Sellers in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice'.

217 The test is therefore whether the information Mr Carruth has requested:

(a) is reasonably required for the purpose of preparing for, reviewing, or reaching agreement on the FP Notices; and

(b) is not unreasonable having regard to the burden on InComm/TCN in providing it.

218 'Reasonable' in this context must be assessed by reference to:

(a) the nature and complexity of the calculations being reviewed;

(b) the amount at stake (potentially many millions of dollars in Further Payment);

(c) the information actually required to conduct an informed review;

(d) the burden on InComm/TCN in providing the information; and

(e) the specificity and clarity of the requests.

F.5.4 General principles applicable to all items

219 The 14 items in Mr Carruth's table fall into several categories:

(a) Items requiring foundational accounting records (Completion Statement, general ledgers, accounts);

(b) Items requiring working papers and calculations showing how EBITDA and breakage figures were derived;

(c) Items requiring Card Compliant reports and related documentation;

(d) Items requiring specific supporting documentation (commission models, normalisation adjustments, transaction code mappings).

220 These are all standard categories of financial documentation that would be maintained in the ordinary course of business by a company of TCN's nature and size. Mr Mould conceded in cross-examination that general ledgers are readily available. InComm has not provided evidence that compliance with these requests would be unduly burdensome or impractical.

221 The requests are directed to verifying calculations that determine the Further Payment, involving potentially many millions of dollars. They represent the type of information that an experienced forensic accountant would properly require to conduct a thorough and informed review in order to advise Indi on whether to agree to the FP Notices or what Disputed FP Matters to raise.

F.5.5.1 Items 1-3 (Completion Statement, Accounts and EBITDA)

222 These items seek the Completion Statement, general ledgers, underlying transactional records, and working papers supporting the Completion Accounts, Completion EBITDA and Completion Breakage Amount.

223 These are plainly reasonable requests for an adviser reviewing the FP Notices. The Completion Breakage Amount is a critical component of the Breakage Differential Amount calculation, which directly affects the Further Payment under the formula in clause 7.5. To advise Indi on whether InComm's calculation of the Further Payment is correct, Mr Carruth must be able to verify the foundational figures that feed into that calculation. Without access to the Completion Statement, the underlying accounts, and the working papers showing how these figures were calculated, Mr Carruth cannot properly advise Indi on whether to agree to the FP Notices.

224 General ledgers are essential to substantiate reported figures. Mr Mould conceded they are readily available, indicating that provision would not be burdensome. The request for underlying transactional records is qualified by the term 'sample', indicating that exhaustive production is not sought - only sufficient documentation to verify the accuracy of the ledger entries and the consistent application of accounting policies.

225 Item 4 seeks general ledgers, underlying transactional records, and supporting documentation for the December 2022 Accounts.

226 For the same reasons as Items 1-3, this is reasonable. The December 2022 Accounts form the foundation for December 2022 EBITDA (Base), which is carried forward through all subsequent Further Payment calculations under clauses 7.4, 7.11 and 7.12. An adviser reviewing the FP Notices must be able to verify the accuracy of this foundational figure. Without the underlying accounts and ledgers, Mr Carruth cannot properly advise Indi on whether the Further Payment has been correctly calculated.

227 Indi no longer seeks Item 5, which related to confirmation regarding preparation of the December 2022 Accounts. Accordingly, I need not address it further.

228 These items seek general ledgers, underlying transactional records, working papers, and documentation of normalisation adjustments for the December 2022 EBITDA calculations.

229 December 2022 EBITDA is one of the two principal variables in the Further Payment formula under clause 7.5. To advise Indi on whether to agree to the FP Notices, Mr Carruth must be able to verify this critical figure. This requires access to the general ledgers from which EBITDA is derived, working papers showing how the calculations were performed, and documentation of any normalisation adjustments.

230 Schedule 7 prescribes specific normalisation adjustments that must be made to EBITDA. These adjustments can materially affect the Further Payment. Documents showing what normalisation adjustments were made, their quantum, and how they were calculated are plainly information that an adviser would reasonably require to verify whether the EBITDA calculations are correct. Without this information, Mr Carruth cannot advise Indi on whether the Further Payment calculation should be accepted or disputed.

F.5.5.4 Items 9-12 (December 2022 Breakage calculations)

231 These items seek the original Card Compliant reports and working files, clarification of which cards were included/excluded from Card Compliant's analysis, documentation of assumptions and methodologies and the commission model with supporting documentation.

232 Breakage is the other principal variable in the Further Payment formula. The accuracy of the breakage estimate is critical to the Further Payment calculation. To advise Indi on whether the breakage figures in the FP Notices are correct, Mr Carruth requires access to this material (to the extent that InComm is in possession of it).

233 Without this information, Mr Carruth cannot understand how the breakage figures were derived, whether the methodology is sound, or whether errors may have been made. An adviser cannot reasonably be expected to advise a client to agree to a multi-million dollar Further Payment calculation without being able to verify the breakage estimates underlying that calculation.

234 The request is particularly reasonable given the evidence of discrepancies in Issue Amounts across different FP Notices, unexplained differences between 'kick-outs' in various materials, and the absence of clarity about the data and methodology used by Card Compliant.

F.5.5.5 Items 13-14 (Breakage Differential Amount)

235 These items seek the Completion Statement with underlying source data and assumptions, and documentation supporting the Final Breakage Amount. The Completion Breakage Amount and Final Breakage Amount are the two components of the Breakage Differential Amount calculation under clause 7.4(c), which directly affects the Further Payment. These are foundational figures.

Without this information, Mr Carruth cannot verify the correctness of the Breakage Differential Amount or advise Indi on whether to agree to the FP Notices. These are plainly reasonable requests for an adviser engaged to review complex financial calculations affecting a potential multi-million dollar payment.

F.5.6 Qualification regarding underlying transactional records

236 Items 2, 4 and 6 request 'underlying transactional records (including sample invoices and purchase orders)'. The phrase 'underlying transactional records' is potentially very broad and could encompass every source document for every transaction. For a business conducting thousands of gift card sales through multiple channels, this could be voluminous.

237 However, the parenthetical reference to 'sample' invoices provides important limitation. A reasonable interpretation is that Mr Carruth requires representative samples across transaction types and channels sufficient to verify that:

(a) ledger entries accurately reflect business transactions;

(b) accounting policies have been consistently applied; and

(c) unusual, material or non-standard transactions are properly documented.

238 'Samples' should be understood as representative examples, not exhaustive production of all transaction records. If the parties cannot agree on an appropriate sampling methodology, they may apply to the Court for directions.

239 I find that Indi is entitled to the categories of documents set out in Items 1-14 of Mr Carruth's table (other than Item 5, which Indi no longer seeks), subject to the following qualifications:

(a) 'Underlying transactional records' in Items 2, 4 and 6 should be understood as requiring representative samples across transaction types and channels, not exhaustive production of every transaction record;

(b) Sample invoices and purchase orders should be sufficient in number and type to verify ledger accuracy and accounting policy application, but need not encompass every invoice and purchase order for the relevant period;

(c) Item 10 can be satisfied by a document or statement explaining which card products and issue amounts were included or excluded from Card Compliant's analysis and the reasons for any exclusions.

240 If the parties cannot agree on an appropriate sampling methodology for underlying transactional records, or if disputes arise about the scope of any item, they may apply to the Court for directions.

241 The provision of these categories of documents and information is necessary to enable Indi, through Mr Carruth, to conduct the informed and thorough review that clause 7.16(b) contemplates. The requests are reasonable in the context of the potentially substantial Further Payment at stake, the complexity of the calculations involved, and the detailed verification process prescribed by clause 7 of the SSA.

242 Indi's request for current versions of Power BI extracts attached to Mr Mould's email of 31 October 2023 raises different considerations.

243 Power BI is described in the evidence as a third-party platform that aggregates data from TCNAdmin and is used to estimate breakage. The platform provides extracts showing data from various sales channels.

244 Indi's primary submission is that, while the connection between Power BI extracts and 'supporting information' under clauses 7.2, 7.4 and 7.11 may be less direct, the extracts nonetheless fall within clause 7.16(a) as material that would permit review of the FP Notices.

245 InComm responds that Card Compliant reports were not based on Power BI extracts and that the SSA does not require provision of Power BI data.

246 The evidence establishes that Card Compliant reports are based on Source Data from TCNAdmin, not on Power BI extracts. Power BI is an additional tool used by TCN to analyse data and estimate breakage, but it is not part of the chain of calculations required under clause 7.

247 However, Power BI extracts may, nonetheless, be relevant as 'supporting information' in a broader sense. If Power BI was used by InComm/TCN to check Card Compliant calculations or to inform decisions about how to instruct Card Compliant, then Power BI materials could shed light on the calculation process.

248 The difficulty is that Indi has not clearly articulated what specific purpose the Power BI extracts would serve in reviewing the FP Notices. The request appears somewhat speculative - seeking the material to see whether it might reveal relevant information, rather than identifying a specific gap in the information already required to be provided.

249 Moreover, Mr Mould provided Power BI extracts to Mr Hewitt in October 2023, and further Power BI extracts were provided in February 2025. Indi now seeks 'current versions' of the earlier extracts, but has not explained what additional information current versions would provide beyond what has already been supplied.

250 On balance, I find that Indi has not established that Power BI extracts constitute information it is entitled to under clauses 7.2, 7.4, 7.11 or 7.16. The extracts are not part of the calculation chain required under clause 7, and Indi has not demonstrated that they are reasonably required for review purposes given the other information to which it is entitled.

251 If, after receiving the Source Data, Card Compliant reports and other materials to which it is entitled, Indi identifies a specific deficiency that Power BI extracts would address, it may make a further targeted request explaining why those extracts are required. However, at this stage, a general request for Power BI extracts is not sustainable.

252 I therefore decline to order provision of Power BI extracts.

(a) Indi is entitled to Source Data from TCNAdmin, the Breakage Brief, any communications between InComm and Card Compliant relating to the Card Compliant reports and documents relied on to prepare the FP Notices pursuant to clauses 7.2, 7.4 and 7.11;

(b) Indi is entitled to general ledgers and a reasonable sample of underlying invoices and transactional records relating to the calculation of December 22 EBITDA (Base) pursuant to clause 7.2;

(c) InComm has not provided the Card Compliant reports required under clauses 7.2(a), 7.4(a) and 7.11(a)(i) and Indi is entitled to such reports;

(d) Indi is entitled to the Source Data, the Breakage Brief, Card Compliant reports and related materials, and documents relied on to prepare the FP Notices under clause 7.16(a) as an alternative basis;

(e) Indi is entitled to the categories of documents requested by Mr Carruth pursuant to clause 7.16(b) (other than Item 5, which is no longer sought), subject to reasonable limits on the scope of sampling of transactional records as set out above;

(f) Indi is not entitled to Power BI extracts.

254 The parties are required to confer and, within fourteen days:

(a) submit a proposed form of order to give effect to these reasons, including as to costs; or

(b) failing agreement, file and serve submissions of no more than 3 pages addressing these matters and attaching their preferred form of order.

[1] Court Book filed 18 August 2025, 7 [3] (CB).

[11] Clauses 5.2 to 5.9 provide for a review and dispute resolution procedure.

[12] The detail of these normalisations is set out in an image of a table in the SSA and omitted here.

[13] Defined terms not relevant to this proceeding have been excluded. Ellipses indicating those exclusions have been omitted for readability.

[18] CB 163-4 [74] item 1. It appears that these documents were provided to Indi with the affidavit of Jonathan Mould dated 31 July 2025.

[19] As explained by senior counsel for InComm, the spreadsheet refers to collections of channels as programs, reflecting a difference of nomenclature between TCN and Card Compliant: at Transcript of Proceedings, 84 (Transcript).

[20] CB 678; IND.0001.0002.0093. References in this latter format refer to spreadsheets filed by the parties that do not have a specific page in the CB. See also, IND.0001.0002.0092; IND.0001.0002.0094; IND.0001.0002.0095; IND.0001.0002.0096.

[21] This figure appears to refer to the amount of breakage for Gift Cards that have already expired.

[26] CB 164-5 [74] item 4. It appears that these documents were provided to Indi with the affidavit of Jonathan Mould dated 31 July 2025.

[29] IND.0001.0001.0062. The spreadsheet incorrectly states the relevant clause as clause 7.2(a)(ii) instead of clause 7.4(a)(ii).

[30] See also IND.0001.0001.0063, IND.0001.0001.0064, IND.0001.0001.0065, IND.0001.0001.0066.

[38] CB 166, [74] item 8. It appears that these documents were provided to Indi with the affidavit of Jonathan Mould dated 31 July 2025.

[44] IND.0002.0007.0093. See also IND.0002.0007.0091, IND.0002.0007.0092, IND.0002.0007.0094, IND.0002.0007.0095, IND.0002.0007.0096.

[45] CB 927. It appears clear that Issue Amounts refers to the value rather than the number of gifts cards sold in CY22, despite the following ambiguous exchange in the cross-examination of Mr Mould. 'The issue amounts are amounts of cards that have been issued and the value of those cards in the calendar year 2022. Correct?---Yes, yes': at Transcript 119.1-3.

[54] Transcript 121.28-122.30, 123.1-27, 141-144.

[57] Plaintiff's outline of written submissions filed 15 September 2025, 17-8 [59]-[61] (Plaintiff's written submissions).

[58] Plaintiff's written submissions, 19 [68].

[62] Transcript 175.16-177.9. InComm submitted that the final sentence in each of clauses 7.2, 7.4 and 7.11(a) which provides that '[t]he buyer will take into consideration the amounts provided for in the report prepared by Card Compliant' does not add much 'to the constructional equation': at Transcript 177.9-28.

[66] Transcript 205.20-206.26; CB 164 [74] item 3.

[67] Defendant's outline of opening submissions filed 22 September 2025, 18-9 [79]-[80] (Defendant's written submissions).

[68] Transcript 224.2-6; CB 156-7 [35]-[37], 166 [74] item 7, 167 [74] item 11.

[71] Transcript 237.25; Plaintiff's written submissions, 14 [50].

[75] Transcript 124.13-125.1, 158.17-21.

[80] Transcript 199.18-201.19 referring to CB 154 [25]; Transcript 121.13-27.

[88] Plaintiff's written submissions, 25-6 [92]-[96].

[97] Transcript 166.30-167.31; Plaintiff's written submissions, 24-5 [88]-[91].

[98] Defendant's written submissions, 20-1 [92]-[94].

[99] Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd [2023] HCA 6; (2023) 276 CLR 500, 509 [27] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ), citing Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544, 551 [16] (Kiefel, Bell and Gordon JJ). See also, Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 656-7 [35] (French CJ, Hayne, Crennan and Kiefel JJ) (Woodside).

[100] [2024] VSC 438 [245] (Connock J).

[101] [2019] VSCA 144 (Whelan, McLeish and Emerton JJA).

[102] Woodside, 656-7 [35] (French CJ, Hayne, Crennan and Kiefel JJ).

[103] Woodside, 656-7 [35] (French CJ, Hayne, Crennan and Kiefel JJ).

[104] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 116 [48].

[105] Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 352; Apple and Pear Australia Ltd v Pink Lady America LLC [2016] VSCA 280; (2016) 343 ALR 112, 178-9 [231]-[232] (Ferguson and McLeish JJA); see also 139-55 [92]-[139] (Tate JA).

[106] [2020] VSCA 199, [36]-[38] (Kyrou, Niall and Hargrave JJA), when construing the terms of a commercial lease. These observations were again more recently referred to in Feeney v Southstar Homes Pty Ltd [2024] VSCA 153, [102]-[103] (McLeish and Niall JJA, and Osborne AJA).

[107] Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, 29 (Mason J), 40-1 (Brennan J) and 51-2 (Deane J).

[108] [2015] HCA 37; (2015) 256 CLR 104, 116-7 [46]-[51] (citations omitted).

[109] [2017] HCA 12; (2017) 261 CLR 544, 551 [16]-[17] (citations omitted).

[110] Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 (Gibbs J).

[111] Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522, 529 [16] (Gleeson CJ, McHugh, Gummow and Kirby JJ).

[112] [1987] HCA 64; (1987) 168 CLR 147, 155 (Mason CJ, Wilson, Dawson and Gaudron JJ).

[113] [2016] VSCA 280, [92]-[139] (Tate JA), [231]-[232] (Ferguson and McLeish JJA).

[114] PCCEF [2019] VSCA 144, [55].

[115] [2017] HCA 12; (2017) 261 CLR 544, 579-81 [97]-[98].

[116] [1997] AC 313, 388 (Lord Goff of Chieveley, Lord Griffiths and Lorde Browne-Wilkinson agreeing at 381).

[117] Arnold v Britton [2015] UKSC 36; [2015] AC 1619, 1628 [18] (Lord Neuberger of Abbotsbury PSC, with whom Lord Sumption and Lord Hughes JJSC agreed; Lord Hodge JSC agreeing at 1637 [66]).

[118] Mitsui Construction Co Ltd v Attorney General of Hong Kong (1986) 33 BLR 1, 14, cited with approval in Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] EWCA Civ 1047; [2001] 2 All ER (Comm) 299, 306 [13] (Mance LJ).

[119] Mitsui Construction 33 BLR 1, 14. See also Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] WLR 2900, 2910 [210] (Lord Clarke of Stone-cum-Ebony JSC, with whom Lord Phillips of Worth Matravers PSC, Lord Mance, Lord Kerr of Tonaghmore and Lord Wilson JJSC agreed).

[120] Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288, 300 (Isaacs J); Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429, 437 (Barwick CJ); compare Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749, 770-1 (Lord Steyn); Society of Lloyd's v Robinson [1999] UKHL 22; [1999] 1 WLR 756, 763 (Lord Steyn; the other Law Lords agreeing at 758, 767-8).

[121] Photo Production Ltd v Securicor Transport Ltd [1980] UKHL 2; [1980] AC 827, 851 (Lord Diplock). See also Arnold v Britton [2015] UKSC 36; [2015] AC 1619, 1628 [18] (Lord Neuberger PSC, with whom Lord Sumption and Lord Hughes JJSC agreed; Lord Hodge JSC agreeing at [66]).

[122] Johnson v American Home Assurance Co [1998] HCA 14; (1998) 192 CLR 266, 272 [19] (Kirby J); Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 388 (Lord Mustill, Lords Goff, Griffiths and Browne-Wilkinson agreeing at 381).

[123] [1913] HCA 24; (1913) 16 CLR 293.

[124] [1899] UKLawRpCh 174; (1900) 1 Ch 417, 418-9.

[125] Walsh v Alexander [1913] HCA 24; (1913) 16 CLR 293, 311-2 (Walsh).

[126] [1915] VicLawRp 66; [1915] VLR 450, 452.

[127] [2013] VSCA 239.

[128] APN Funds Management Ltd v Australian Property Investment Strategic Pty Ltd [2013] VSCA 239, [16]-[17] (Nettle JA, Redlich JA agreeing at [32], Hargrave AJA agreeing at [33]), citing Walsh [1913] HCA 24; (1913) 16 CLR 293, 311 and Patti v Belfiore [1958] HCA 29; (1958) 100 CLR 198, 205 (Patti). In Patti, the High Court considered the meaning of 'refuse' as used in a contract. While no reference was made to a relevant 'presumption' or 'assumption', Dixon CJ, McTiernan and Taylor JJ held that, having regard to the language of the clause and the general framework of the agreement in which it was located, there was no reason for supposing that the word 'refuse' in one clause should receive any different interpretation in another clause.

[129] [2013] VSCA 367.

[130] Lumley General Insurance Ltd v Port Phillip City Council [2013] VSCA 367, [96] citing Walsh [1913] HCA 24; (1913) 16 CLR 293, 311 and Patti v Belfiore [1958] HCA 29; (1958) 100 CLR 198, 205.

[131] [2013] VSCA 179; (2013) 41 VR 636 (Maxwell P, Ashley and Redlich JJA) (Dura).

[132] Prestcold (Central) Ltd v Minister of Labour [1969] 1 WLR 89, 97; Interactive Investor Trading Ltd v City Index Ltd [2011] EWCA Civ 937, [29].

[133] Dura, 646 [26] (Maxwell P, Ashley JA agreeing at 655 [59], Redlich JA agreeing at 655 [60]).

[136] Transcript 105.23-30, 121.28-122.2, 127.1-2.

[138] The language of the affidavit of Jonathan Mould dated 31 July 2025 at paragraph 74, items 1, 4 and 8, suggests that these reports were only provided with the affidavit. It is otherwise unclear when they were provided as their date in the Court Book appears to refer to the date upon which they were produced.