CONTRACT - Australian Consumer Law - Misleading or deceptive conduct - Sale of malt business - Undisclosed dishonest practices underpinned business's historic performance - Whether seller of malt business engaged in misleading or deceptive conduct - Conduct to be analysed as a whole.

MISLEADING OR DECEPTIVE CONDUCT - Disclaimers - Evidential role of disclaimers - Whether disclaimers modify sellers' conduct - Exclusion clauses - Whether exclusion clauses can preclude claim of misleading or deceptive conduct - Public policy - Legislative policy of Australian Consumer Law ss 18, 236.

MISLEADING OR DECEPTIVE CONDUCT - Causation - Reliance - Where representations contained in contract - Where claimant alleged representations induced entrance into contract - Whether reliance possible as representations made simultaneously with contract formation.

MISLEADING OR DECEPTIVE CONDUCT - Causation - Where purchaser did not rely upon certain representations - Where purchaser nevertheless lost opportunity to seek advice and terminate - Whether reliance necessary for causation under Australian Consumer Law s 236.

CONTRACT - Construction and interpretation of contracts - Releases and exclusion clauses - Whether clear words needed to exclude liability for fraud.

CONTRACT - Whether exclusion clause in contract procured by misleading conduct or fraud can be relied upon.

TORTS - Deceit - Disclaimers - Whether disclaimers modified representations - Disclaimers did not render representations true - Whether disclaimers modified sense in which representor intended representations to be understood - No innocent sense in which representations could be understood - Onus of proof for establishing fraudulent intention.

LOSS AND DAMAGE - Assessment - Whether Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 or 'left in hands' approach appropriate - True value of business - Relevance of events subsequent to breach - Extrinsic and intrinsic factors in subsequent performance - Where factors cannot be separated out - Whether 'synergies' to be accounted for.

LOSS AND DAMAGE - Assessment - True value of business - What hypothetical purchaser would have assumed - Assumptions adopted by expert witnesses.

LOSS AND DAMAGE - Contributory negligence - Proportionate liability - Claimant did not fail to take reasonable care - Defendants precluded for acting fraudulently.

PRACTICE AND PROCEDURE - Refusal of application to re-open - Delay.

Australian Consumer Law (Competition and Consumer Act 2010 (Cth) sch 2) ss 18, 236; Competition and Consumer Act 2010 (Cth) ss 87CB-87CD, 137B; Supreme Court Act 1986 s 60; Penalty Interest Rates Act 1983 s 2.

Branir Pty Ltd v Owston Nominees [No 2] Pty Ltd (2001) 117 FCR 424, Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592, Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568, Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [No 1] [1988] FCA 40; (1988) 39 FCR 546, HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6; [2003] 1 All ER (Comm) 349, HTW Valuers v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, Kizbeau Pty Ltd v W G & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281, Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, Lee v Lee [2019] HCA 28; (2019) 266 CLR 129, Onley v Catlin Syndicate Ltd [2018] FCAFC 119; (2018) 360 ALR 92, Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, S Pearson & Son Ltd v Dublin Corporation [1907] UKLawRpAC 22; [1907] AC 351 applied; Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246; (2018) 56 VR 557, Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498, Miller v Miller [2011] HCA 9; (2011) 242 CLR 446, Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642, Westfield Management Ltd v AMP Capital Property [2012] HCA 54; (2012) 247 CLR 129 discussed; Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; (2019) 101 NSWLR 658, Manwelland Pty Ltd v Dames & Moore Pty Ltd [2001] QCA 436; [2001] ATPR 41-845, MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) [2010] VSCA 245; (2010) 31 VR 575, PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312, Price v Spoor [2021] HCA 20; (2021) 270 CLR 450 distinguished.

Richard Scruby, 'Contracting Out of Statutory Prohibitions against Misleading or Deceptive Conduct' (2019) 47 Australian Bar Review 181, Dyson Heydon, 'Avoiding Liability under the Competition and Consumer Act 2010 (Cth)' (2020) 28 Australian Journal of Competition and Consumer Law 13 discussed.

Mr A Myers KC with Mr S Senathirajah KC and Mr SJ Prendergast and Mr OK Wolahan and Mr TM Wood

Mr S Finch SC with Mr PH Solomon KC and Mr T Barry and Mr M Nguyen and Ms L Hamzi

1. By an acquisition agreement executed on 4 August 2013 (the 'Acquisition Agreement'), the first respondent ('Cargill Australia') bought the entire share capital of a company named Joe White Maltings Pty Ltd ('Joe White') from the first applicant ('Viterra Malt'). Joe White conducted business as a maltster. It was the largest maltster in Australia. By the Acquisition Agreement, Cargill Australia also bought certain assets used in the business from the second applicant ('Viterra Operations') and the third applicant ('Viterra Ltd'). The second respondent, Cargill, Incorporated ('Cargill, Inc'), guaranteed the obligations of Cargill Australia.
2. Cargill Australia bought the share capital of Joe White under a staged sale process involving the fourth applicant ('Glencore'), which was the parent company of Viterra Malt, Viterra Operations and Viterra Ltd.
3. The trial judge referred to Cargill Australia and Cargill, Inc together as 'Cargill'. He referred to the first, second and third applicants together as 'Viterra', and he referred to the four applicants together as the 'Viterra Parties'. Save where it is necessary to refer to particular companies, the same terms are adopted here.
4. The sale process involved two stages, referred to as 'Phase 1' and 'Phase 2'. Phase 1 culminated in an 'Indicative Bid', and Phase 2 in a 'Final Bid'. In each stage the Viterra Parties provided information about Joe White's business to Cargill. Cargill used that information in formulating the Indicative Bid and the Final Bid. Under documents forming part of the staged process, the Viterra Parties disclaimed liability for any representations made, Cargill acknowledged and agreed that they could not and would not rely upon any representations made and that they would make and rely upon their own investigations and assessments, and Cargill prospectively released the Viterra Parties from any liability in relation to the provision or non-disclosure of information. An important document in this respect was a confidentiality deed entered into by Glencore and Cargill, Inc, on behalf of themselves and their related companies, bearing the date 27 May 2013, but which Cargill, Inc signed on 13 May 2013 (the 'Confidentiality Deed'). A disclaimer, an agreement not to sue, and a release provided for in that deed were expressly said not to apply to representations or obligations set forth in separate written agreements between the parties in accordance with the terms of those written agreements.
5. The Acquisition Agreement was a separate written agreement between the parties. It was entered into at the end of the staged sale process. It contained a schedule of warranties (the 'Warranties'). By the terms of the agreement, Viterra (but not Glencore) represented and warranted that each Warranty was correct and not misleading at the date of the agreement, and would be correct and not misleading on the 'Completion' date; and acknowledged that Cargill had entered into the agreement and would complete in reliance upon the Warranties.
6. Prior to entry into the Acquisition Agreement (and up to Completion), Joe White for some years had been engaging in three practices which formed the factual foundation for the claims made by Cargill Australia against the Viterra Parties in this proceeding.
7. The first practice was referred to in the trial as the 'Reporting Practice'. Various parameters of the malt produced by Joe White were tested in a laboratory before dispatch to the customer. Joe White produced a certificate of analysis which was provided to the customer. The certificate listed the parameters, and set out the 'results'. If the results which had been obtained by laboratory testing were outside the customer's specifications, those results were altered by Joe White personnel to bring them within those specifications, in a practice referred to as 'pencilling'; and the altered results, not the results obtained from the laboratory, were set out on the certificate provided to the customer, without any indication that the results had been altered.
8. The second practice was referred to in the trial as the 'Varieties Practice'. This occurred when Joe White used barley varieties not approved by a customer, without disclosing that fact or falsely asserting that an approved variety had been used.
9. The third practice was referred to in the trial as the 'Gibberellic Acid Practice'. Gibberellic acid is an additive which may be used in the production process. Some customers prohibited its use. Joe White nevertheless used gibberellic acid in malt delivered to customers who had prohibited its use.
10. Together, these three practices were referred to as the 'Operational Practices'. Cargill Australia alleged that these practices were carried out routinely, and without informing customers. When referred to in that sense (that is, as practices carried out routinely and without informing customers) they were called the 'Viterra Practices'. The judge found the practices were carried out routinely and without informing customers. Nevertheless, in these reasons the term 'Operational Practices' is generally adopted.
11. Cargill Australia instituted this proceeding against the Viterra Parties. It alleged that by reason of the existence of the Operational Practices representations made to it had been false, and misleading or deceptive, and that the Warranties had been breached. The more significant representations in this connection were referred to as the 'Financial and Operational Performance Representations' and the 'Warranty Representations'. The Viterra Parties counterclaimed against Cargill Australia, and they joined Cargill, Inc and a number of other parties as third parties.
12. Cargill Australia claimed that it entered into, and completed, the acquisition provided for by the Acquisition Agreement in reliance upon, and because of, the conduct by the Viterra Parties of which it complained. It claimed that it would not have acquired Joe White if it had not been misled and deceived. The loss claimed was the difference between the price which it paid and the 'true value' of what it acquired.
13. Before the primary judge, Cargill Australia succeeded on claims based upon misleading or deceptive conduct under sch 2 of the Competition and Consumer Act 2010 (Cth) (the 'Australian Consumer Law'), and in deceit.[1] It recovered damages of $168.9 million, being the difference between the price paid, $420 million, and the judge's conclusion as to the true value of the assets acquired, $251.1 million.[2] In a further ruling, the judge ordered damages in the nature of interest, calculated at the rates provided for under the Penalty Interest Rates Act 1983 ('PIRA'), in a total sum of $124,229,320.30 (the 'interest ruling').[3]
14. The trial commenced on 18 June 2018 and initially concluded on 21 August 2019, after 111 sitting days. After judgment had been reserved, the Viterra Parties made two applications to re-open their case.
15. In late 2018 and early 2019, Cargill, Inc disposed of its worldwide malt assets, including Joe White. This development was significant because under cl 15.4(b) of the Acquisition Agreement, Viterra was not liable to Cargill Australia for any claim (as defined) if Cargill, Inc ceased to control Joe White or its business. Viterra applied to re-open so as to rely upon cl 15.4(b) in November 2019. That application was successful. The trial judge concluded that the operation of cl 15.4(b) was fatal to some (but not all) of Cargill Australia's claims.
16. The second application to re-open was made in March 2020. The Viterra Parties sought to re-open to rely upon evidence referred to as the 'EU Materials'. This application failed (the 're-opening ruling').[4]
17. The primary judgment was handed down on 28 January 2022.
18. After initially denying the existence of the Operational Practices, during the course of the trial the Viterra Parties admitted certain aspects of their existence, but they denied Cargill Australia's allegations as to their extent and their significance. The Viterra Parties alleged that the practices were relevantly the sole responsibility of Joe White and its officers, who they joined as third parties; and they asserted that what was done was in accordance with industry practices of which Cargill was aware.
19. More importantly for current purposes, on the issues of liability, the Viterra Parties relied upon various contractual provisions in the documents forming part of the sale process, including clauses that:

(a) stated that no representations were made by the Viterra Parties, and no responsibility was accepted as to the accuracy and completeness of information provided ('no representation clauses'); > > (b) stated that Cargill agreed not to rely, and/or had not relied, upon any representations, but would rely upon their own investigations ('no reliance clauses'); and > > (c) purported to exclude, release or limit the Viterra Parties' liability to Cargill ('exclusion clauses').

We shall refer to these kinds of clauses collectively as 'disclaimers'. As we explain later, these are not rigid categories.

1. A provision of central importance to the Viterra Parties' case both before the trial judge and on appeal was a 'release' provided for in cl 10.3 of the Confidentiality Deed. The relevant provision uses the terminology of 'release', but is better characterised as a contractual exclusion clause.
2. The Viterra Parties are part of a large publicly listed corporate group. Cargill is part of a large privately held corporate group based in the United States of America. The Viterra Parties submitted at trial, and emphasise on this application, that large, well-resourced parties such as these, who negotiate and agree upon the terms of their transactions, should be held to the terms that they have agreed.
3. This application for leave to appeal concerns conclusions reached on both liability and damages in the primary judgment, the refusal to permit re-opening in the re-opening ruling, and the quantum of interest awarded in the interest ruling. There are other separate applications for leave to appeal concerning costs rulings.[5] The application for leave and full argument on the proposed grounds were heard together on the basis that if leave were granted the Court would forthwith determine the substantive grounds.
4. The proposed grounds of appeal, as amended, and three 'grounds of law ... not decided' raised by Cargill on a notice of contention, as amended, are set out in full in Annexure A.[6]
5. Grounds 1, 2, 3, 6, 7, 8 and 10 concern the operation and significance of the disclaimers referred to. The first ground of law not decided raised by the notice of contention (which will be referred to as contention 1) concerns the construction of the release in cl 10.3 of the Confidentiality Deed, and the third (contention 3) concerns certain of the no reliance representations.
6. Grounds 3 and 9 concern the Warranties. The primary judge described the Cargill Australia claims based upon the Warranty Representations as the 'most straightforward'. The claim for misleading or deceptive conduct based upon the Warranty Representations succeeded against Viterra (not Glencore), although the contractual claim for breach of the same Warranties failed because of cl 15.4(b) of the Acquisition Agreement.
7. Grounds 4 and 5, and contention 2, concern the operation of cl 15.4(b) of the Acquisition Agreement and the judge's conclusion that that provision did not operate so as to defeat Cargill Australia's claims under the Australian Consumer Law and in deceit. The second ground of law not decided raised by the notice of contention (which will be referred to as contention 2) also concerns the enforceability of this provision.
8. The legal issues raised by grounds 1-10, and the three contentions, overlap and are interrelated.
9. Grounds 11 and 12 concern claims based on further representations alleged by Cargill Australia which were successful. These representations were referred to as the 'Pre-Completion Representations' and the 'Other Bidders Representations'.
10. Grounds 13-21 concern loss and damage.
11. Ground 22 concerns apportionment, and ground 23 concerns interest.
12. Ground 24 concerns the judge's refusal of the Viterra Parties' application to re-open their case so as to lead and rely upon the EU Materials. This evidence was contended to be relevant to the Viterra Parties' contention that the Reporting Practice accorded with industry practices of which Cargill was aware.
13. The primary judgment is 1,810 pages long (comprising 5,354 paragraphs, and 4,826 footnotes) without the annexures, and 1,846 pages with the annexures and schedules. Once the subsequent relevant rulings concerning the refusal of the application to re-open, the quantification of damages, the interest, and the costs are included there are approximately 2,000 pages in all. Some of the issues addressed in the primary judgment are no longer relevant, or are relevant to the issues raised in this application only by way of context. There is no application for leave to appeal from the judge's dismissal of the third party claims, save for ground 10 which concerns both the counterclaim against Cargill Australia and the third party claim against Cargill, Inc. In the context of the proposed liability grounds (grounds 1-12) the judge's conclusions as to the nature and prevalence of the Operational Practices are not contested. Thus, substantial parts of the primary judgment do not need to be addressed or considered in detail.
14. The proposed liability grounds (grounds 1-12) are, with the exception of ground 7 which raises discrete leave issues, all sufficiently arguable to warrant the grant of leave to appeal. The liability grounds will be addressed under the following headings:
    • (1) The nature and extent of the Operational Practices.
    • (2) The Financial and Operational Performance Representations and the Warranty Representations.
    • (3) The disclaimers and correspondence concerning the Indicative and Final Bids.
    • (4) Summary of relevant findings and conclusions of the primary judge on issues of liability.
    • (5) The legal principles adopted by the judge relevant to grounds 1-10.
    • (6) The disclaimers in this case.
    • (7) Review of the authorities on disclaimers.
    • (8) Ground 1: Is cl 10.3 of the Confidentiality Deed unenforceable in relation to misleading or deceptive conduct?
    • (9) Ground 2: Is cl 10.3 of the Confidentiality Deed unenforceable in relation to deceit?
    • (10) Contention 1: Construction of cl 10.3 of the Confidentiality Deed.
    • (11) Remaining grounds and contentions concerning the Financial and Operational Performance Representations.
    • (12) Ground 6: Financial and Operational Performance Representations - conduct as a whole.
    • (13) Ground 8: Financial and Operational Performance Representations - reliance.
    • (14) Grounds 4 and 5, and contention 2: Financial and Operational Performance Representations - Acquisition Agreement cl 15.4(b).
    • (15) Ground 7: Financial and Operational Performance Representations - the requisite intention for deceit.
    • (16) Summary of conclusions on Financial and Operational Performance Representations claims.
    • (17) Ground 3: Warranty Representations - Confidentiality Deed cl 10.3 and cl 10.4, and Acquisition Agreement cl 15.
    • (18) Ground 9: Warranty Representations - reliance.
    • (19) Summary of conclusions on Warranty Representations claims.
    • (20) Ground 11: Pre-Completion Representations - causation.
    • (21) Ground 12: Other Bidders Representations - whether made, reliance and loss.
    • (22) Ground 10, and contention 3: No Reliance Representations.
    • (23) Summary of conclusions on the liability grounds.
15. After addressing the grounds on liability, the grounds on loss and damage (grounds 13-21) will be addressed, followed by the grounds concerning apportionment (ground 22), interest (ground 23), and the re-opening ruling (ground 24).
16. For the reasons we set out, we have concluded that while leave to appeal will be granted on all but three of the grounds (those three being grounds 7, 20 and 24), the appeal will be dismissed.

• (1) The nature and extent of the Operational Practices

1. The grounds of appeal on the liability issues do not contest the judge's findings as to the nature and prevalence of the Operational Practices. However, it is necessary to set out the judge's significant findings and conclusions in that regard in order to understand the issues raised and place them in their proper context.
2. The Reporting Practice involved alterations to the 'results' to be displayed on certificates of analysis. The judge described these certificates of analysis as follows:

The Certificate of Analysis as issued by Joe White was a relatively straightforward document. The top of the document contained Joe White's name, the heading 'Certificate of Analysis', the customer name and the estimated time of dispatch. Next, there were a series of items, including the laboratory number with respect to the laboratory that conducted the tests. Under this, there were 2 columns headed 'PARAMETER' and 'RESULT', with the various parameters listed and the 'result' reported with respect to each parameter. Most of the 'results' reported were numerical. Underneath the parameters and the reported results additional information was provided, which sometimes, but not always, listed the barley variety or varieties that were said to have been used. There was nothing on the face of the Certificates of Analysis to indicate whether there had been any analysis performed beyond that of the laboratory in producing the test results.[7]

1. As indicated earlier, in certain circumstances the results obtained from the laboratory were physically altered by hand, in a practice known as 'pencilling', and the altered 'results' were entered on the certificates of analysis provided to customers. Personnel particularly involved in this practice were the third third party, Gary Hughes, the sixth third party, Douglas Stewart, and an employee named Laura McIntyre.[8]
2. Of Hughes, the judge said the following:

The third third party was Gary Hughes ('Hughes'). He worked at Joe White for many years. At the time Glencore purchased Viterra, Hughes held the titles of director and executive manager - malt at Joe White and executive manager for Viterra Malt. He was also a director of each of the Sellers and Joe White, but resigned from those directorships on 17 December 2012; he was reappointed as a director of Joe White on 2 November 2013 and resigned again on 23 June 2014. In addition, while Viterra owned Joe White, and owned some of the assets used by the Joe White Business, Hughes was a member of Viterra's Australian and New Zealand executive. In this position, Hughes was included in the affairs of Viterra beyond those concerned with Joe White. Hughes was described as very hands-on in his managerial approach. He maintained a detailed familiarity with all aspects of the Joe White Business. Following the Acquisition, Hughes was employed by Cargill Australia as regional general manager, Asia Pacific until June 2014.[9]

1. Stewart was a biochemist who had worked in the malting industry since 2000. In 2010, he was appointed by Viterra Ltd as general manager technical, malt. He reported to Hughes.[10] McIntyre was an employee in the technical department of Joe White. She had no technical qualifications as a maltster.[11] At the relevant times all persons involved in conducting Joe White's business were employees of Viterra.[12]
2. In relation to when the practice of pencilling began, the evidence was summarised by the judge as follows:

Precisely when Joe White first engaged in pencilling or other conduct forming part of the Operational Practices was not clear on the evidence. Stewart said at the time he commenced working with Hughes, he was informed by Hughes that it was necessary to engage in pencilling for Joe White to operate in the malting industry. In around 2000, when producing some of his first malt shipments that could not be brought within the customer's specifications, Hughes told Stewart that it was difficult to get malt perfectly within specification. Hughes said it was acceptable to despatch the out-of-specification malt because the malt would be suitable for the customer. Hughes also said to do so was common practice in the malting industry.

Laura McIntyre ('McIntyre'), from the technical department of Joe White, deposed that pencilling was in place when she commenced her employment at Joe White in 2005 and, although the practice was not formally recorded, it was standard practice.[13]

1. McIntyre was the person responsible for the physical preparation of certificates of analysis, including altering the results. The results from the laboratory were recorded on a document known as a 'Sign-Out Report'. McIntyre's evidence as to what was physically done was summarised by the judge as follows:

McIntyre was originally informed when she started at Joe White that it was part of her role to ensure that all of the reported results in Certificates of Analysis were within customer specifications. McIntyre explained that she would sit down with hard copies of the Sign-Out Reports and go through them line by line. McIntyre said that if any results were out of specification 'we' would strike through them and mark them within specification. She further said that if any of the things that had been changed affected other parameters 'we' would ensure that the calculations were correct as some parameters interlinked with others. McIntyre gave evidence that, generally, if results were within specification, no pencilling would occur. However, she said that there were not many Certificates of Analysis that fell into this category. That said, McIntyre was unable to state or even estimate how often the pencilling would only involve 1 or 2 parameters, or a greater number of parameters.

McIntyre further explained that when pencilling results to bring them within specification, the alterations were usually towards the outer limits of a customer's specification or at a value close enough to the specification that it would pass as legitimate. Sometimes pencilling was engaged in even if the result was within specification. Some customers had targets which were higher than the specifications and alterations were made to make the result look closer to the target than what it was. Her evidence was that 'we' did not usually amend the results to be right on the specification as such reporting would look suspicious. Some results were the product of calculations from other test results. Therefore, if an alteration was made to these results, the results for other parameters would also have to be changed so the calculated result was consistent with the other relevant reported results.

Paradoxically, sometimes the pencilling occurred to make the results worse than they actually were. McIntyre's evidence was that this was done so as to not heighten expectations that Joe White could consistently achieve the results in question. In addition, McIntyre attested that she inserted 'results' when, in fact, there had been no testing for the particular parameter. McIntyre said this happened frequently and that the results reported were fabricated, but not with respect to key parameters.[14]

1. Once amended, a hard copy of the pencilled Sign-Out Report was given to Stewart for his approval.[15] Stewart also had a further role which the judge described as follows:

Stewart also had a role in dealing with any fallout from the quality of malt delivered. McIntyre was the person initially responsible for dealing with customers' technical complaints. However, Stewart took responsibility for responding to more complex complaints that it was thought might expose the procedures in place. There was a considerable volume of correspondence between Stewart and Joe White's customers, examples of which were tendered. In that correspondence Stewart referred to things such as typical variations, analytical and laboratory variations, results being at the bottom or top end of a specification and the focus on seeking to provide malt that allowed the breweries to meet their specifications for the beer they produced. However, no mention was made of pencilling.[16]

1. Over time, the Operational Practices, or certain aspects of them, were documented. In either 2005 or 2006, a documented procedure referred as the 'Malt Blend Parameters Procedure' set out an approved guideline to proceed with the supply of malt outside customer specifications. Stewart reviewed the procedure two or three times a year. Hughes instructed that the Malt Blend Parameters Procedure was to be stored separately from Joe White's quality procedure manuals and that it was not to be accessible by the International Organisation for Standardisation auditors or the auditors of Joe White's customers.[17]
2. In 2010, Joe White introduced a project known as the 'Malt Cost Reduction Transformation Project'. The objective of the project was to reduce the cost of barley acquisitions by using off-grade and off-specification barley. Stewart was unhappy about the introduction of this project. He was of the opinion that Joe White would need to be pencilling results more often if it were using substandard barley. He raised his concerns with Hughes, who agreed with them, but said that the position was 'not negotiable'.[18]
3. As to testing by the customers themselves, the judge said:

Whatever the level of testing conducted by Joe White's customers, it was plainly not adequate to detect the various measures Joe White took to conceal that it was supplying malt that did not meet the specifications required. A critical piece of evidence on this topic was Stewart's evidence that Joe White was relying on the fact that it was understood that many customers did not test the malt.[19]

1. Viterra had a code of business conduct referred to as the 'Viterra Code' which was in place from at least 2008. The Viterra Code as issued in 2008, and revised in 2010 and 2011, provided that employees were to maintain superior standards of honesty, fairness and integrity.[20] In 2010, employees were required to sign the Viterra Code. Some initially refused to do so for reasons related to the Operational Practices. Two of the employees who were uncomfortable at the prospect of signing the Viterra Code were Stewart and McIntyre.[21] The judge said:

Stewart gave extensive evidence on this point. He said his concern arose from Joe White supplying malt that did not meet customer specifications, the use of the Malt Blend Parameters Procedure and the pencilling of Sign-Out Reports. Further, he said that with the adoption of the Malt Cost Reduction Transformation Project and its imperative to use more off-grade barley, this was likely to exacerbate the occasions upon which the issues that were concerning him would arise.

He said that Dr Megan Sheehy ('Sheehy'), the technical services manager at Joe White, McIntyre and Jones all approached him with concerns about Joe White's practices regarding Certificates of Analysis and having to sign the Viterra Code. McIntyre also gave evidence of her uneasiness. She said that she was not comfortable signing a statement referring to always being accurate and truthful in dealings with customers and in representing the quality, features and availability of Viterra products and services. She explained her discomfort came from her daily duties including altering results on Sign-Out Reports for Certificates of Analysis. McIntyre discussed her concerns at the time with Sheehy and Naomi Moller ('Moller'), technical centre chemist. She said they raised their concerns with Stewart and Hughes, both of whom said that they considered their concerns were fair and would do something about it. McIntyre also gave evidence of discussions with Stewart in which she told him that she did not think the pencilling policy was the right thing to do. McIntyre was not cross-examined on her evidence concerning the Viterra Code.

Under cross-examination, Stewart readily agreed that the introduction of the Viterra Code threw into sharp relief the practices that were occurring at the time concerning pencilling and Certificates of Analysis. Stewart said he discussed the concerns that had been raised with Hughes and queried how the Viterra Code could be complied with when the Malt Cost Reduction Transformation Project also had to be satisfied. Stewart said the personal discomfort he felt in signing the Viterra Code because of the conduct in which Joe White was engaged was particularly because of pencilling. Hughes told Stewart that he had already relayed some concerns to Gordon[[22]] and Malecha.[[23]] Hughes stated that Malecha had said 'my spider senses are tingling' in response to Hughes' issue. Stewart gave evidence it was important to him that Gordon and those advising Gordon agreed with the manner in which to proceed. However, Stewart was not specific with respect to Hughes providing Gordon's response.[24]

Stewart did eventually sign the code.[25]

1. In relation to the Varieties Practice and the Gibberellic Acid Practice, the judge summarised Stewart's evidence as follows:

In relation to barley varieties, Stewart fully understood that some customers specified a particular variety or particular varieties, but that Joe White was not always supplying as specified. He further understood that the customers were not only not being told, but it was also being reported the correct variety or varieties were being used. When confronted with these somewhat startling facts, Stewart gave evidence that he did not know how significant these circumstances may have been for the customers. Stewart also knew gibberellic acid was being added to malt contrary to some customers' specification, and that they were not being informed. He accepted the unauthorised additive should have been disclosed.[26]

1. The next development in the documentation of aspects of the Operational Practices was the creation in February 2011 of the first version of the 'Viterra Certificate of Analysis Procedure'. On its terms, this first version concerned only export customers.[27]
2. The Viterra Certificate of Analysis Procedure permitted changes to be made to test results 'where required' with respect to results that 'appear[ed] out of specification' by up to two standard deviations, being what was said to be the analytical error defined for that test parameter under a scheme known as the Malt Proficiency Scheme. The Malt Proficiency Scheme was a form of inter-laboratory comparison by which participant laboratories could assess the calibration and quality of their testing.[28] The Viterra Certificate of Analysis Procedure also permitted the adjustments of results beyond two standard deviations 'by the consensus of two or more General Managers [and] the Market Manager'.
3. The judge summarised Stewart's evidence as to the process as follows:

Stewart gave evidence that when he was involved in approving out-of-specification malt, he considered the test results overall, the customer's needs and whether the malt would nonetheless perform well for the customer. He further said that when he took out-of-specification malt results to Wicks[[29]] or Youil,[[30]] or if neither of them were available, Hughes, for co-approval he explained the technical aspects of the malt. Then, the commercial issues would be addressed (including the costs and production implications of withholding the shipment). Stewart said if he was satisfied as to the malt's quality, its despatch would always be approved. Further, he said even if he was not so satisfied, the despatch would be approved by Wicks, Youil or Hughes. In substance, the perceived commercial imperatives of Joe White drove the decision as to whether malt which did not comply with customer specifications would be despatched to the customer in any event.[31]

1. Under the Viterra Certificate of Analysis Procedure, all relevant results (both as reported by the laboratory and as altered) were to be recorded. They were so recorded in the Laboratory Information System ('LIS'), which was a centralised laboratory, production, and stock management software system. It generated the certificates of analysis for malt supplied to customers. McIntyre was its administrator.[32]
2. In relation to the storing of this data, the judge summarised Stewart's evidence as follows:

Stewart's evidence was that it was important that the technical team in head office saw the original results 'warts and all', so that any decision about quality and performance leading to adjustment of documentation could be made on a proper basis. Further, he instructed plant managers not to make any adjustments outside the Viterra Certificate of Analysis Procedure.[33]

1. In 2012, two issues arose in relation to the Viterra Certificate of Analysis Procedure. The first was its formal extension to domestic customers, and the second concerned the necessity to ensure that its existence was not discovered by customers or auditors. The judge described what happened as follows:

In early September 2012, Sheehy[[34]] circulated for review a draft procedure for Certificates of Analysis production and Sign-Out Reports. The main change was to incorporate Joe White's domestic customers into the procedures already in existence with respect to export customers under the Viterra Certificate of Analysis Procedure. In a follow-up email, she asked for comments or, if there were no comments, to receive that advice so that she could 'publish the procedures'.

In response, by email to Sheehy sent on 13 September 2012, Miroslav Prazak ('Prazak'), plant manager in Sydney, stated, in relation to the recent draft of the Viterra Certificate of Analysis Procedure, that 'documenting that "adjustments are authorised practice" is somewhat damning', before adding that he had no comment.

On the same date, Sheehy forwarded Prazak's email to Stewart, stating:

• A very good point from [Prazak] below. Should the [Viterra Certificate of Analysis Procedure] actually be an official TRIM procedure? We definitely need these guidelines as this is what we do, but we don't necessarily want and [sic] auditor or customer to find this in TRIM or a methods manual.

Stewart agreed with Sheehy. During his cross-examination, Stewart acknowledged that he understood both Prazak and Sheehy were stating that it would not be desirable for customers or a quality auditor to discover the document.

...

On 11 October 2012, Sheehy sent an email to certain Joe White staff, copied to others including Stewart and McIntyre, attaching both the Viterra Certificate of Analysis Procedure and a 'Document Revision Notice'. The email, updating the 'Certificate of Analysis Generation Procedure with Domestic Customers', was designated 'high' importance and was concerned with how the proposed procedure might be viewed on the Records System. It stated:

• Following some excellent feedback from [Prazak], we have decided to make this procedure obsolete in TRIM, but we can still add new revisions into the folder when required. Hence it will live in TRIM still, just unofficially, and should not be stored in any official procedure folders at your site, as we do not want customers or auditors to have access to this procedure.

The email referred to the applicability of the regime to both export and domestic customers, and noted a 3 month trial period of the procedure would commence on 1 November 2012. Stewart gave evidence that the document was marked 'obsolete' so 'it dropped below the radar, effectively'. Later in his evidence he said its existence was disguised. Further, Stewart's uncontested evidence was that, just as Hughes had directed in relation to the Malt Blend Parameters Procedure, Hughes instructed the executives that the Viterra Certificate of Analysis Procedure was not to be included in the quality procedure manual, which manual was made available to International Organisation for Standardisation and customer auditors. Similarly, Testi's[[35]] evidence was that, by placing a document in an 'obsolete folder', it was concealed on the system but could still be updated.[36]

1. Cargill's approach to certificates of analysis was quite different to that of Viterra. The means of analysis was different, but there was also a more striking difference. The judge observed:

Leaving aside the underlying difference in the means of analysis most regularly used in the respective approaches, most strikingly Cargill's approach involved open disclosure to its customers of the process adopted, whereas the Viterra Certificate of Analysis Procedure was deliberately and mandatorily covert.[37]

1. The existence of the Operational Practices was not the subject of any disclosure by the Viterra Parties to Cargill in the course of the sale process until 15 October 2013, a little more than two months after execution of the Acquisition Agreement, and approximately two weeks prior to the scheduled date for Completion.[38] The content and circumstances of that disclosure will be dealt with later. For present purposes, it is sufficient to record that questions Cargill raised as a consequence of the disclosure which was made prompted the preparation and consideration by Viterra employees, including Hughes and Stewart, of a detailed review of Joe White's ability to fully meet all customer requirements. The outcome of the review was recorded in a spreadsheet prepared by Stewart with the assistance of McIntyre, referred to as the 'Customer Review Spreadsheet'. Stewart prepared a memorandum addressing the issues raised by the review which was entitled 'Cargill Customer Review: Key Recommendations'.[39]
2. The judge reviewed the Customer Review Spreadsheet and the Key Recommendations memorandum in detail.[40] He then observed that the matters set out in the Customer Review Spreadsheet were a 'far cry' from the exhortations made in the sale process to the effect that Joe White met its customers' 'exact specifications'.[41]
3. On 22 October 2013, Hughes directed that all internal correspondence in relation to those documents was to cease[42] and that the contents of the documents were not to be discussed with Cargill employees or representatives.[43]
4. The parties provided to the primary judge an agreed list of issues requiring determination.[44] There were 145 issues on that list. After setting out the facts and some preliminary matters, the primary judgment separately addressed each issue on the parties' agreed list in part X of the primary judgment.
5. Amongst the issues the judge was required to determine were:

(a) whether Joe White, routinely and without informing customers, supplied malt that did not comply with contractual requirements and specifications and supplied certificates of analysis to customers that misstated the analytical testing results; > > (b) whether Joe White's financial and operational performance was substantially underpinned by these practices; and > > (c) whether, without the practices, Joe White could not produce and sell malt in the volumes and to the specifications required and as reflected in the financial and operational information disclosed by the Viterra Parties to Cargill in the course of the sale process.[45]

6. During the course of the trial, the Viterra Parties conceded that the Joe White business was 'generally conducted' in accordance with the Viterra Certificate of Analysis Procedure and the Malt Blend Parameters Procedure. The judge concluded, based upon the evidence of Joe White personnel, and a statistical analysis of orders for the supply of malt, that Joe White routinely and without informing customers supplied malt that did not comply with contractual requirements and specifications; and supplied certificates of analysis that misstated the results, reporting that malt complied with contractual requirements and specifications when it did not.
7. As to the evidence of Joe White personnel, the judge particularly relied upon the evidence of McIntyre and Stewart, some pertinent aspects of which have been set out above.[46] The judge concluded that 'this evidence alone', the substance of which he considered to be 'clear and unequivocal', established Cargill Australia's claim in respect of the Reporting Practice.[47]
8. As to the statistical analysis, the judge relied upon an analysis of data drawn from the LIS, data which he held to be reliable.[48] The judge found that this data 'strongly corroborated' the findings he had already made based upon the evidence of the Joe White personnel.[49]
9. The relevant statistical analysis was undertaken by Liam Ryan from KordaMentha Forensic. The parties agreed on the facts to be derived from this analysis. For present purposes, it suffices to note that of the 4,359 certificates of analysis included in Ryan's analysis, 88.05 per cent contained one or more parameter results which were outside specification on the laboratory result but which were brought within specification on the certificate of analysis.[50] The judge rejected submissions made by the Viterra Parties that this analysis did not prove that Joe White routinely failed to meet customers' specifications.
10. Ryan also undertook a further analysis seeking to identify alterations as a result of pencilling beyond two standard deviations. This analysis was prompted, the judge suggested, by the Viterra Parties' submission that the mere fact that a test result was outside specification did not necessarily imply that the malt was actually outside specification, and that due to variability in malt, it was generally accepted that a result within two standard deviations was considered statistically within specification. Amongst the relevant agreed facts derived from this analysis was that 42.9 per cent of the 3,070 certificates of analysis included in the analysis contained one or more laboratory results which were out of specification by more than two standard deviations, but which were reported as within specification on the certificate of analysis.[51]
11. One of the matters raised by the Viterra Parties in relation to Ryan's analyses was that the pertinent consideration was the proportion of the total number of results which had been altered (which was lower[52]), rather than the proportion of the number of certificates of analysis which contained a relevantly altered result. The judge rejected that approach. He observed as follows:

Of course, both must be considered but the Cargill Parties' submissions were far more compelling as to the relevant touchstone in determining the significance of the data. To misstate a single result in a Certificate of Analysis was to misstate the composition of the malt. In other words, if a Certificate of Analysis stated a parameter was within specification when that parameter was a Plus 2 Affected Result, the fact that other parameters were accurately recorded and stated, alternatively less materially inaccurately recorded and stated, did not alter the fact that the Certificate of Analysis misstated the results of the analytical testing of the malt.[53]

1. In relation to the Varieties Practice, the judge observed that eventually there was no issue that Joe White had undertaken this practice 'on occasions' without the approval of its customers.[54] In relation to the prevalence of this practice, the judge said:

Again, McIntyre was a critical witness. She gave uncontroverted evidence of a standard practice of reporting the barley variety or varieties required by the customer regardless of whether or not the required varieties were used. Further, the interviews conducted with some of the Joe White executives in October 2013 confirmed the existence of the Varieties Practice. Their accounts disclosed Joe White used barley varieties inconsistent with customer contracts on a significant level, and that there was an awareness that Joe White was breaching customers' contracts without informing them.

Further, a review of Joe White's ability to fully meet customer requirements in October 2013 revealed not only an inability to do so, but that varieties of barley were being supplied to customers on a routine basis in breach of contract. This conclusion as to what the Customer Review Spreadsheet indicated on its face was not seriously disputed by the Viterra Parties; rather they sought to attack the reliability of the information it contained. The attack was not successful.

The Viterra Parties submitted that, if the document was to be considered reliable, the issue was confined to a small number of customers and was therefore unlikely to have had a significant impact upon the Joe White Business. This submission did not reflect the evidence. Further, it was entirely contrary to Stewart's assessment at the time, which was that 6 months 'for most' (and 12 months for 'others') was required before Joe White would be in a position to achieve barley variety compliance. He gave unchallenged evidence that a 6 month transition period in which procurement and planning could take place was appropriate because an immediate change without advance preparation would have been disruptive to customer relationships and hard to manage. Wicks put it more bluntly. As Joe White's commercial general manager, he told Fitzgerald[[55]] in late October 2013 that to attempt to supply barley varieties from 1 November 2013 in accordance with customer contracts would be commercial suicide and Joe White's brand would be decimated.[56]

1. The judge observed that the evidence reflected a 'brazen approach at times to the issue of non-compliance on occasions'.[57]
2. Ryan also carried out an analysis of the LIS data on the issue of the Varieties Practice. Again, facts were agreed as to the outcome of that analysis. Not every certificate of analysis reported a barley variety and not every customer order specified a barley variety. Ryan's analysis revealed, amongst other things, that:

(a) Of the 4,171 unique orders where the customer had required at least one specific variety of barley to be used, 3,236 of those orders (or 77.58 per cent) contained a variety or varieties which were not the customer's required varieties. > > (b) Of the 2,788 unique orders where there was at least one reported variety written on the certificate of analysis, there were 2,457 orders (or 88.13 per cent) where not all varieties used were reported on the certificate of analysis. > > (c) Of the 2,753 unique orders where the customer had required at least one specific variety to be used and where there was at least one barley variety reported on the certificate, 2,429 orders (or 88.23 per cent) contained a variety or varieties which were not the customer's required varieties, and/or contained a variety or varieties which were not reported on the certificate of analysis.[58]

3. The judge said that the evidence, without taking into account Ryan's statistical analysis, established that Joe White routinely, and without informing customers, supplied malt contrary to the requirements of customers who specified the barley variety to be supplied.[59] The judge nevertheless addressed the statistical analysis, given the substantial attention which had been given to it in the trial.
4. The judge said that reaching a conclusion about the statistical analysis on this issue was not 'without its difficulties'.[60] The judge considered the analysis and also addressed in some detail specific evidence which had been led about particular customers. The judge eventually reached the following conclusion:

In conclusion, the Cargill Parties have been largely successful in establishing the underlying assumptions made by Ryan with respect to the Barley Analysis were appropriate. Although some of the Viterra Parties' submissions have been accepted, the extent of that success has been minimal and the orders that ought to have been excluded as a result, both individually and collectively, were not so material as to undermine the conclusions reached as a result of the analysis.[61]

1. The judge said that the results of Ryan's analysis of the barley varieties 'demonstrated the extensive use of the Varieties Practice in the operation of the Joe White Business, or, at the very least, strongly corroborated the finding already made as to the Varieties Practice being engaged in routinely as part of the Joe White Business'.[62]
2. In relation to the Gibberellic Acid Practice, the judge particularly relied upon the account given by Hughes in October 2013, in the course of internal investigations, to the effect that it happened routinely in all plants.[63] It routinely continued right up until Completion on 31 October 2013.[64] The judge addressed each of the particular customers who, it was alleged, had required that gibberellic acid not be used and he found that Cargill Australia had established the existence of that requirement in relation to each such customer, other than one, San Miguel.[65]
3. In contrast to the records kept concerning the Reporting Practice and Varieties Practice, Joe White did not keep records of the use of gibberellic acid contrary to a customer's requirement. The judge, however, observed that the Customer Review Spreadsheet shed considerable light on the prohibited use of gibberellic acid, and informative also were the statements made by Joe White personnel internally in October 2013, after questions had been asked by Cargill.[66]
4. On the issue of whether the Operational Practices substantially underpinned the financial and operational performance of Joe White, the judge concluded that they did.
5. The cessation of the Operational Practices after Cargill took over meant that Cargill Australia was required on many occasions to request what were referred to as 'derogations' from customers where the malt to be supplied did not meet the required specifications. The judge observed that it was 'incontrovertible' that the need to request these derogations was harmful to the business, whilst observing that the requests were necessary because Cargill discontinued the Operational Practices.[67]
6. The judge observed:

Joe White engaged in each of the Operational Practices, and did not disclose it to its customers, in order to achieve greater returns and avoid the repercussions of routinely not being able to produce malt that complied with customer requirements and specifications. Further, by not disclosing the Operational Practices, Joe White was able to maintain the façade of supplying malt in accordance with customer specifications when the Joe White executives involved in operations (and other employees also involved in operations) knew that this was not a fact. In particular, Hughes as chief executive officer, was instrumental in creating and maintaining this façade both in the conduct of the Joe White Business and in the contents of the Information Memorandum and other communications made in the sale of the Joe White Business.[68]

1. The judge's relevant conclusion was expressed as follows:

The evidence clearly demonstrated that the financial and operational performance of Joe White from 2010 to 31 October 2013 was substantially underpinned by the Operational Practices. By utilising the various aspects of the Operational Practices, Joe White supplied malt in a far more seamless and cost-effective manner than it would have been able to if it had complied with its contractual obligations, or had attempted to do so and been open with its customers when it could not.

The fact that the Viterra Parties were able to point to some other factors after October 2013 that may have adversely affected the performance of the Joe White Business was of little moment. None of these matters altered the fact that, at the time of the Acquisition, the Joe White Business had significant flaws with its operations and was dependent upon the Operational Practices to maintain a level of performance resembling anything like that portrayed in the Information Memorandum, the Management Presentation Memorandum and each of the other pre-contractual communications as recorded in the Acquisition Agreement.[69]

1. The judge concluded his analysis of these issues by observing that the financial and operational performance of Joe White would not have been as was reported to Cargill if Joe White had not engaged in the Operational Practices as it did between 2010 and October 2013.[70]
2. When addressing subsequent issues, the judge returned to the significance and prevalence of the Operational Practices, repeating the conclusions he had reached and, amongst other things, observing that on any view they 'involved dishonest business practices',[71] which had become 'an entrenched part' of Joe White's business operations,[72] so as to be aptly described as 'customary or widespread', and, in the case of the Reporting Practice, 'universal'.[73]
   • (2) The Financial and Operational Performance Representations and the Warranty Representations
3. Before setting out the more significant representations successfully relied upon by Cargill Australia, it is necessary to say something about the staged sale process.
4. The process began with what was referred to as the 'Phase 1 Process Letter'. The letter from Merrill Lynch on behalf of Glencore to Cargill, Inc was dated 14 May 2013. It referred to the Confidentiality Deed as having been executed (as it had been by Cargill, Inc, notwithstanding that the deed bears a later date), and it enclosed a copy of an 'Information Memorandum'. The Phase 1 Process Letter sought 'Indicative Bids' upon the basis of which Glencore intended to select a shortlist of parties to participate in Phase 2.
5. Cargill submitted an Indicative Bid and received a 'Phase 2 Process Letter' dated 14 June 2013 informing it that it had been shortlisted to participate in Phase 2. Phase 2 was a due diligence process. That process involved a virtual data room, a question and answer process, a management presentation, and site visits. The management presentation was an oral presentation with written material conducted on 26 June 2013 (the 'Management Presentation'). Access to the virtual data room was subject to a written 'Data Room Protocol'. The Acquisition Agreement included as annexures a data room index (Annexure B), a record of questions and answers submitted (Annexure C), a summary of the questions and answers in the 'Management Presentation' (Annexure D), and a summary of additional questions and answers asked in subsequent management meetings (Annexure E). At the time of Completion, being 31 October 2013, Glencore and Cargill, Inc executed a deed of release in relation to the Confidentiality Deed (the 'Deed of Release'). The Phase 2 process led to the submission by Cargill of a 'Final Bid'.
6. Cargill Australia alleged that representations referred to as the 'Financial and Operational Performance Representations' were made to it by the Viterra Parties. These representations were alleged to have been made on the basis of:

(a) express statements in the Information Memorandum; > > (b) the financial and operational information disclosed in that Information Memorandum and during the due diligence process (the 'Financial and Operational Information'); > > (c) express statements made in communications between the parties in what were referred to as the 'Operations Call' and the 'Commercial Call'; > > (d) express statements made in the Management Presentation; and > > (e) by the alleged failure to disclose that the Operational Practices were routinely carried out without informing customers (in that sense the practices were referred to as the 'Viterra Practices'), were partly recorded and endorsed in written policies, that Joe White's financial and operational performance was substantially underpinned by the practices, and that but for the practices Joe White could not produce and sell malt in the volumes and to the specifications required by customers and in the volumes and for the returns reflected in the Financial and Operational Information. The matters allegedly not disclosed were referred to as the 'Undisclosed Matters'.

7. The Financial and Operational Performance Representations were not said to be express statements. Rather, they were all alleged to be implied from the express statements, the information provided, and the failure to disclose. The ten representations alleged to be so implied were:
   • (1) The production, sales and earnings figures stated in the Financial and Operational Information were based upon strict quality control procedures and analysis.
   • (2) The production, sales and earnings figures stated in the Financial and Operational Information were based upon customer contracts including customer specifications being complied with.
   • (3) By reason of the matters set out in the two preceding subparagraphs, the production and sales figures stated in the Financial and Operational Information had been properly and lawfully achieved.
   • (4) Joe White had not withheld or concealed material information from customers.
   • (5) The assets of the Joe White business were sufficient for Joe White to sell malt in the volumes and for the returns stated in the Financial and Operational Information.
   • (6) Joe White had low future capital expenditure needs in the short to medium term.
   • (7) When procuring barley, Joe White gave priority to obtaining barley that best met its customers' specifications and requirements.
   • (8) Joe White employed technical analysis and strict quality control procedures to ensure that the malt it produced consistently met its customers' specifications.
   • (9) A central reason for Joe White's ability to achieve the performance described in the Information Memorandum was its ability to produce malt that met its customers' exact specifications and requirements, and its focus on doing so.
   • (10) The Undisclosed Matters did not exist.[74]
8. Turning then to the Warranty Representations, as indicated earlier the Acquisition Agreement expressly provided that Viterra represented and warranted to Cargill Australia a number of matters. Clause 13.1 provided under the heading 'Accuracy':

The Sellers [Viterra] represent and warrant to the Buyer [Cargill Australia] that each Warranty [defined as the warranties and representations set out in Schedule 4] is correct and not misleading on the date of this agreement and will be correct and not misleading on the Completion Date as if made on and as at each of those dates except where otherwise provided in the Warranty.

1. By cl 13.4, Cargill Australia acknowledged and agreed, amongst other things, that it did not rely upon any representation 'except the Warranties'.
2. Clause 13.7 was headed 'Sellers' acknowledgments'. It relevantly provided as follows:

Each Seller [Viterra] acknowledges that:

(a) the Buyer [Cargill Australia] has entered into this agreement and will Complete in reliance on the Warranties as they are given on the terms of this agreement[.]

1. For present purposes, it is sufficient to confine consideration to those Warranties which the judge found had been breached, and which constituted the Warranty Representations which the judge found were misleading or deceptive.[75]
2. The relevant Warranties are these:

4.2 Records

The Records:

(a) have been compiled and maintained in good faith;

(c) are complete and up-to-date in all material respects.

['Records' was widely defined and expressly included reports, manuals and policies, sales and purchasing records, and all trading and financial records.]

To the Share Seller's [Viterra Malt's] knowledge and awareness, the Company [Joe White] is not in material default of any Material Contract, nor has anything occurred or been omitted which would be a material default but for the requirement of notice or lapse of time or both.

At the date of this agreement, there are no Claims or disputes relating to the Business and, to the best of the Share Seller's knowledge and awareness, there are no facts or circumstances which may give rise to such a Claim or any legal, administrative or government proceedings.

(a) The Data Room Documentation has been collated and disclosed in good faith and with reasonable care. > > (b) To the Share Seller's knowledge and awareness no material information has been omitted from the Data Room Documentation. > > (c) To the Share Seller's knowledge and awareness the Data Room Documentation is true and accurate in all material respects.

Since the Last Balance Sheet Date the Business has been conducted in the ordinary course in a proper and efficient manner, without any interruption or alteration in its nature, scope or manner.

(a) The Business has been conducted in accordance with applicable Laws and ISO Standards in all material respects.

• (3) The disclaimers and the correspondence concerning the Indicative and Final Bids

1. The first formal step in the sales process was Cargill, Inc's execution of the Confidentiality Deed.[76] The Confidentiality Deed contained detailed provisions which will be set out more fully later, including various disclaimers. For present purposes, it is sufficient to note that the Confidentiality Deed provided that Cargill acknowledged that no representation was made by the Viterra Parties and acknowledged and agreed that they were required to rely upon their own investigations and analysis (cl 8), and provided that Cargill released the Viterra Parties from all liability in relation to the provision of the information (cl 10.3), save for representations or obligations set forth in separate written agreements between the parties in accordance with the terms of those written agreements (cl 10.4).
2. On 14 May 2013, Merrill Lynch sent Cargill the Phase 1 Process Letter. As stated above, the Phase 1 Process Letter enclosed a copy of an Information Memorandum. The Information Memorandum contained express statements and financial and operational performance information upon which Cargill Australia based its allegation that the Financial and Operational Performance Representations were made.
3. The Phase 1 Process Letter stated that it was 'an invitation to submit' an 'Indicative Bid', on the basis of which Glencore intended to select a shortlist of parties to participate in Phase 2. The letter stated that the Information Memorandum was provided on the terms outlined in that document and 'represents Confidential Information as defined in the Confidentiality Deed'.
4. The letter stated that the Indicative Bid 'should address' a number of specified areas, one of which was as follows, under the heading 'Methodology and key assumptions':

A description of the valuation methodologies you have adopted and key assumptions underpinning your Indicative Bid (including relevant commercial, financial, tax, legal and foreign exchange assumptions) and any value drivers or additional information that would allow you to improve your offer. In particular, you should note where these assumptions vary from information disclosed in the Information Memorandum.

1. The letter stated that bidders were required to make and rely upon their own investigations. It stated that no contact was permitted with Glencore or any of its related bodies corporate, or their officers or employees, without the written consent of Merrill Lynch.
2. In addition to the financial and operational performance information concerning Joe White, the Information Memorandum contained a page headed 'Legal Disclaimer'. The heading aptly described the page's contents.
3. In substance, the 'Legal Disclaimer' document relevantly asserted that 'to the maximum extent permitted by law' no representation, warranty or undertaking, express or implied, was made, and no liability accepted, as to the adequacy, accuracy, correctness, completeness or reasonableness of the document or any information provided. The document stated that the information provided should not be treated as complete and asserted the need for the recipient to make their own independent assessment. At the outset, the 'Legal Disclaimer' page stated that the Information Memorandum was provided on a confidential basis to selected recipients and that in accepting the document each recipient agreed for itself and related bodies corporate that it was provided on the terms and conditions of the disclaimer. The disclaimer's relevant terms will be set out more fully later in these reasons.
4. Cargill's Indicative Bid was submitted under cover of a letter dated 7 June 2013. The letter foreshadowed that the acquisition if it proceeded would be through a wholly owned Australian subsidiary.
5. Cargill's Indicative Bid was expressed as a range and was said to be '[b]ased on our review of the information contained within the Information Presentation ("IM") and letter to Cargill from Merrill Lynch dated 14 May 2013 ("Process Letter")'. Cargill's letter stated: 'We intend to refine our valuation with an expectation that we could enhance our value based on more detailed information provided in Phase 2'.
6. Cargill's letter addressed 'Methodology and key assumptions', as required by the Phase 1 Process Letter, stating:

Cargill has based its Indicative Bid on the information and forecasts contained within the IM and the Process Letter. In submitting this Indicative Bid, Cargill assumes that the information provided by Glencore, Joe White and Merrill Lynch is true and accurate and supported by due diligence findings. ... For the purposes of our valuation, we have based our analysis on the pro forma normalised EBITDA provided in the IM.

The Phase 1 Process Letter had required Cargill to identify any variations between the assumptions made by Cargill and the information disclosed in the Information Memorandum. None were identified.

1. Under the heading 'Due Diligence', Cargill's letter of 7 June 2013 stated:

As is usual, we would expect to have access to all material information related to Joe White, and to be able to submit questions and receive answers from Glencore and its advisers. We would also expect to undertake site inspections and to receive a presentation from Joe White's management.

1. The judge set out the passages from the Phase 1 Process Letter and from Cargill's letter of 7 June 2010 in his recitation of the relevant facts, quoting the passages set out above, as well as other passages from those letters.[77]
2. Cargill's Indicative Bid resulted in them being placed on the shortlist to participate in Phase 2. They were informed of their inclusion by the 'Phase 2 Process Letter' from Merrill Lynch which was dated 14 June 2013. In that letter Cargill was told they had been shortlisted to participate in Phase 2 'with the objective being for you to submit a final, fully financed binding offer ("Final Bid") to acquire Joe White'. The letter referred to the obligations under the Confidentiality Deed. It set out a due diligence process involving a virtual data room, a Q&A process, a management presentation, and site visits. It stated that Cargill was required to make and rely upon their own investigations. The obligations of confidentiality were referred to again with specific reference to the prohibition on contact with Glencore or any of its related bodies corporate or any of their officers or employees without Merrill Lynch's prior written consent.
3. The Management Presentation, which included both written and oral financial and operational performance information, included a 'Legal Disclaimer' document in substantially identical terms as that forming part of the Information Memorandum.
4. The Data Room Protocol regulated the terms upon which access was to be given to the data room. Its relevant terms will be set out more fully later. They included provisions under the heading 'Disclaimer and liability' which relevantly provided that, to the maximum extent permitted by law, no representations were made; and that invitees and users acknowledged and agreed that they were required to rely upon their own investigations.
5. The various disclaimers described above, which were documented in the course of the sale process, were referred to by the judge as the 'Sale Process Disclaimers'.
6. Cargill's Final Bid was submitted under cover of a letter dated 29 July 2013. After some formal parts, the letter stated:

Based on the due diligence that we have undertaken and discussions with Joe White management, we have confirmed our view that Joe White is an impressive business with a portfolio of top-tier assets and a strong strategic fit with Cargill, our global malt business, and Australian grain and food ingredient activities. We are also impressed by the quality and depth of the management team, and we sincerely appreciate the time and effort they have committed to helping Cargill better understand the business.

1. Under the heading 'Due diligence requirements', the letter stated:

Cargill confirms that it has conducted its due diligence based on the information provided to date in the process. This includes a review of the information provided in the Information Memorandum, management presentations, site visits, the Project Ballarat Dataroom (including responses provided through Q&A) and some public registers.[78]

1. The Acquisition Agreement also contained provisions relied upon by the Viterra Parties in this context, which were referred to together as the 'Acquisition Agreement Liability Terms'. Of particular relevance is cl 13.4, the terms of which will be set out in full later. By that provision Cargill Australia relevantly acknowledged and agreed that it did not rely upon any representation other than the Warranties.
2. There is a contrast between the letters written by Merrill Lynch and by Cargill and the terms of the Sale Process Disclaimers.
3. The Phase 1 Process Letter required Cargill to specify where their assumptions underpinning their Indicative Bid varied from the information in the Information Memorandum. Cargill's response expressly stated that their Indicative Bid was based on the information in the Information Memorandum and was submitted on the assumption that that information was true and accurate. No variations were notified. The Cargill response also expressly stated that they had relied upon the earnings before interest, taxes, depreciation and amortisation ('EBITDA') figures in the Information Memorandum. It foreshadowed refinement of the valuation based on more detailed information in Phase 2, and stated that Cargill expected to have access to all 'material' information in that due diligence process. This all stands in contrast to the position described in the Sale Process Disclaimers.
4. The same contrast is to be found in the correspondence concerning Phase 2. Cargill's covering letter with its Final Bid expressly stated that they had conducted their due diligence based upon the information provided 'in the process' and that, based on that due diligence, they had reached positive conclusions as to the Joe White business and its management.
   • (4) Summary of relevant findings and conclusions of the primary judge on issues of liability
5. As indicated, there are issues addressed in the primary judgment which are no longer relevant, or relevant only by way of context, given the grounds of appeal on liability. This summary, accordingly, concentrates on those aspects of the judgment that have continuing relevance.
6. The grounds of appeal 1, 2, 4, 5, 6, 7, 8 and 10, and the three contentions, all concern the significance and proper operation of disclaimers. Three authorities which are central to the eventual consideration of the issues raised are Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [No 1] ('Henjo'),[79] Butcher v Lachlan Elder Realty Pty Ltd ('Butcher'),[80] and Campbell v Backoffice Investments Pty Ltd ('Campbell v Backoffice').[81] In summarising the relevant findings and conclusions on liability, it is necessary to note the judge's reliance upon those authorities.

1. The judge found that the Information Memorandum contained the express statements relied upon both by Cargill Australia, being statements as to financial and operational performance, and by the Viterra Parties, being the disclaimers.[82]
2. The judge also found that certain express statements relied upon by Cargill Australia in the Operations Call and the Commercial Call were made, and that they were made on behalf of the Viterra Parties.[83]
3. The judge found that the express statements relied upon by Cargill Australia in the Management Presentation were made, and that they were made on behalf of the Viterra Parties; and, again, that the written material presented at the Management Presentation contained the disclaimers relied upon by the Viterra Parties.[84]
4. The judge referred to the Confidentiality Deed, and in particular to the terms relied upon by the Viterra Parties. He held that the deed bound Cargill from 13 May 2013, rather than from the date which it bears, being 27 May 2013.[85]
5. The judge referred to the Phase 1 Process Letter and the Phase 2 Process Letter, and to statements in those letters; as well as to the Data Room Protocol and its terms.[86]
6. The judge then dealt at length with an issue which was significant in the trial, but which is not the subject of any ground of appeal, although it has some tangential relevance to grounds 19 and 24. It concerned what was referred to as a 'decision rule'. In substance, it was contended that certain limitations upon the accuracy of testing meant that results could properly be adjusted by what was described as a 'decision rule'. The Viterra Parties submitted that the Viterra Certificate of Analysis Procedure was an example of such a 'decision rule'. They based their submissions on the expert evidence of Professor David Brynn Hibbert. The judge addressed the evidence on this issue in detail. Based on Hibbert's evidence, the judge identified a number of characteristics of what a scientifically justifiable decision rule might be and concluded that the Viterra Certificate of Analysis Procedure did not have those characteristics. He said that 'both in form and as it was applied in practice' the Viterra Certificate of Analysis Procedure 'did not comply with the analytical chemistry standards that were identified by Hibbert'. He accordingly rejected the submissions put by the Viterra Parties seeking to justify the Viterra Certificate of Analysis Procedure on this basis.[87]
7. In relation to the nature and prevalence of the Operational Practices, relevant parts of his Honour's analysis and conclusions have already been set out.[88] The judge addressed the issue of knowledge of the Viterra Parties concerning the Operational Practices, and what may be termed issues of 'attribution'.[89] In that regard, the judge's critical conclusion concerned Hughes. The judge concluded that Hughes had knowledge of all of the relevant matters,[90] and that his knowledge was attributable to the Viterra Parties.[91] These conclusions are particularly relevant to ground 7.
8. The primary judge found that the Undisclosed Matters were indeed not disclosed.[92]
9. The judge then dealt with a contention of the Viterra Parties that there existed practices, referred to as the 'Alleged Industry Practices', which were said to be engaged in by maltsters throughout the world, which were not ordinarily disclosed to customers, and which were known to most participants in the commercial malting industry, including Cargill. In essence, it was contended that the Operational Practices were standard industry practices. The judge reviewed the evidence in relation to these contentions in detail and rejected them.[93]
10. The judge then turned to two issues which are relevant to a ground of appeal, namely, whether the Financial and Operational Performance Representations alleged by Cargill were made, in light of the Sale Process Disclaimers; and whether they were false and misleading or deceptive, again, in light of the Sale Process Disclaimers. The judge's analysis of these issues is the subject of ground of appeal 6.

The judge's consideration of whether the Financial and Operational Performance Representations were made

1. In relation to whether the Financial and Operational Performance Representations had been made, the issue was addressed by the judge under issue 15, as formulated by the parties. The question asked by issue 15 was whether Glencore and/or Viterra had made the alleged representations 'in light of: the Sale Process Disclaimers ... the Acquisition Agreement Liability Terms ... and the Alleged Industry Practices'.
2. At the outset, the judge set out the relevant pleaded allegations and defences.[94]
3. The judge began his consideration of the issue of whether the Financial and Operational Performance Representations had been made as follows:

The first step is to ascertain whether the matters relied upon by Cargill Australia were capable of conveying, and did or would have (subject to the matters raised by the Viterra Parties) conveyed, the representations as alleged. If not, then there is no need to consider the Sale Process Disclaimers or the other matters raised in opposition.[95]

1. In a footnote, the judge noted that this approach was not that which had been adopted by the Viterra Parties in their closing submissions. The judge said the Viterra Parties had considered this question last. The judge observed in the footnote that in his opinion 'the more efficacious approach was first to identify the statements that were made and determine whether they were capable of giving rise to the representations alleged to have been implied'.[96]
2. At the outset of his analysis, the judge recorded that the parties agreed, 'correctly', that in considering whether the Financial and Operational Performance Representations were made, the overall context needed to be considered.[97]
3. The judge separately considered each alleged Financial and Operational Performance Representation and addressed the question of whether that representation had been implied by reason of the express statements which had been made, and the matters which were undisclosed. In that context he considered and rejected submissions made by the Viterra Parties that:

(a) characterised the various statements relied upon as 'aspirational'; contended that the express statements relied upon were simply not capable of bearing the inferences for which Cargill Australia contended; > > (b) rejected the interpretation placed upon express statements by Cargill Australia; and > > (c) relied upon the Alleged Industry Practices (the existence of which the judge had already found had not been established).[98]

In the course of that analysis the judge said that senior counsel for the Viterra Parties had expressly acknowledged that the sixth implied representation (concerning future capital expenditure needs) had been made.[99]

1. The judge concluded this part of his consideration of issue 15 with the statement that 'Cargill Australia has established that each of the Financial and Operational Performance Representations was made'.[100]
2. Still under the heading of issue 15, the judge then turned to the issue he described in a heading to this part of the judgment as: 'The effect of the Sale Process Disclaimers, Acquisition Agreement Liability Terms and the Alleged Industry Practices'.
3. Cargill's submission at trial, as described by the judge, was that it was 'not clear' how the matters relied upon by the Viterra Parties 'modif[ied]' or 'affect[ed] the meaning conveyed by the representations made'.[101]
4. In this context, the judge observed that the Alleged Industry Practices did not need to be addressed as they had already been found not to have existed.[102]
5. The judge also rejected submissions made in this context by the Viterra Parties as to issues of attribution, and as to whether the Undisclosed Matters had indeed been disclosed.[103]
6. The judge then recorded the Viterra Parties' three independent reasons which were relied upon for a finding that the 'Financial and Operational Performance Representations were not made',[104] which in summary were as follows:

(a) that the Sale Process Disclaimers and Acquisition Agreement Liability Terms made it clear to Cargill Australia that the statements relied upon were not capable of giving rise to the Financial and Operational Performance Representations. > > (b) that, if the Financial and Operational Performance Representations were made, then the context in which they were provided ensured Cargill knew the statements made were not statements of fact capable of being used to draw further inferences of fact, but rather were statements capable of being used as no more than the starting point for any investigation into the facts. > > (c) that the statements relied upon were not capable of conveying the implied representations as alleged, especially given Cargill's significant expertise and decades of experience in the malting industry and its knowledge of the Alleged Industry Practices, which meant that Cargill must have understood that the statements provided an unreliable basis from which to draw any inferences.

7. The judge rejected the third reason 'for the reasons already stated', cross-referencing the consideration he had given to each alleged representation and the issue of whether that representation was to be implied from the express statements made and the matters undisclosed.[105]
8. In relation to the second reason, the judge observed that on the Viterra Parties' approach, the statements made were intended to be relied upon for the purpose of formulating an indicative offer. The judge said that the Viterra Parties' contention in this regard amounted to an acceptance that conduct had been engaged in 'such that it was open to consider whether the Financial and Operational Performance Representations were made even for the limited purpose for which the Viterra Parties contended'.[106] The judge footnoted that passage referring to the observation by this Court in CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd that once conduct is engaged in subsequent events cannot change what has occurred.[107] The judge later observed that the concession that the information contained in the Information Memorandum could be relied upon as a starting point was 'plainly correct' as '[a] contrary position would have been entirely inconsistent with the Phase 1 Process Letter'.[108]
9. The judge then referred to the first reason, founded upon the Sale Process Disclaimers and provisions of the Acquisition Agreement. The judge said that before addressing that issue, it was necessary to refer to the relevant legislation and the principles applicable to the construction and operation of that legislation.[109]
10. The judge set out the relevant terms of s 18(1) of the Australian Consumer Law.[110] The judge then said:

Very broadly speaking, this proceeding involved 2 separate types of clauses that the parties collectively referred to as 'the disclaimers'. The first category comprised disclaimers as to the accuracy of information provided to Cargill. The second comprised clauses termed 'no reliance' clauses, by which Cargill agreed to accept information on the basis that it would not rely on statements made or other information provided to it in the course of the transaction (outside of the contractual Warranties).

A disclaimer as to accuracy goes towards whether the conduct complained of can be considered misleading or deceptive. The question for resolution is whether, considering the whole of the conduct including the existence and wording of any disclaimer, the conduct in question is misleading.

By contrast, ordinarily 'no reliance' clauses are particularly relevant when considering causation. The question to be answered is whether a 'no reliance' clause agreed to by a person receiving information is evidence that that party in fact did not rely on representations made by the other. This type of 'disclaimer' is considered below. It suffices to say for present purposes that, generally speaking, no reliance clauses would not alter the conduct (or the proper characterisation of the conduct) engaged in, such as the making of a representation, but rather they may be relevant to whether any loss suffered was 'because of' the relevant conduct.[111]

1. The judge observed that the authorities, to which he was about to turn, 'clearly demonstrate' that the role of disclaimers in a context of claimed misleading or deceptive conduct was primarily, if not exclusively, evidentiary. For that proposition the judge cited Campbell v Backoffice.[112]
2. The judge addressed at some length the decision of the High Court in Butcher, including McHugh J's dissent in that case.[113] The judge quoted passages from McHugh J's judgment concerning the effect of disclaimers, observing that although McHugh J had dissented on the facts, his statements about the effect of disclaimers were useful and had been cited in subsequent cases as statements of authority. In passages from McHugh J's judgment quoted by the judge, McHugh J emphasised that the conduct must be considered as a whole. The judge quoted a passage from McHugh J's judgment where he had said that a disclaimer might have the effect of 'erasing whatever is misleading ... by actually modifying the conduct'; and a passage where McHugh J said:

once misleading or deceptive conduct is shown, the [Trade Practices Act] prevails over the disclaimer. It would be contrary to the consumer protection objects of the statute and to public policy for disclaimers to deny a statutory remedy for offending conduct under the Act.[114]

1. Returning to the effect of the disclaimers relied upon, the judge said:

The existence of disclaimers as to accuracy or absence of personal responsibility, separately or in combination, are important when considering the nature of the conduct as a whole. However, although a disclaimer may alter or modify the conduct or its correct characterisation, it cannot operate to 'correct' or transform conduct that was otherwise misleading or to avoid the operation of the Australian Consumer Law. For public policy reasons, the courts will not give effect to a disclaimer that purports to exclude liability for conduct that has been found in fact to be misleading or deceptive. To put it another way, a clause which states (in whatever form) that a discloser of information shall not be engaging, or has not engaged, in certain conduct immediately before or after that conduct has actually been engaged in as a matter of fact will not operate to lead to a finding that the conduct has not been engaged in if in fact it has. Presumably, the authors of the Information Memorandum Disclaimers and the Management Presentation Memorandum Disclaimers were fully aware of this by seeking to exclude the making of or responsibility for any representation to the maximum extent permitted by law rather than to provide that no representations were being made at all (when they clearly were) or that there could be no liability in relation to any misleading representations made (when that would be contrary to law).[115]

1. The passage set out was the subject of specific consideration by senior counsel for Cargill during the hearing before us. For ease of reference it will be referred to as para [3003].
2. The Viterra Parties had relied upon a number of United Kingdom authorities, being IFE Fund SA v Goldman Sachs International ('IFE Fund'),[116] Taberna Europe CDO II plc v Selskabet AF1 ('Taberna')[117] and Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland plc ('Raiffeisen').[118]
3. The judge distinguished the United Kingdom cases. Amongst other things, he considered the applicable legislation in the United Kingdom to be relevantly different to that applying in Australia.[119]
4. The Viterra Parties had also submitted that the High Court decision in Price v Spoor[120] was relevant to the issues before the court. In Price v Spoor, it was held that a party could contract out of its right to plead a relevant statutory limitation of actions. The judge did not consider that case to be of relevant assistance.[121]
5. The judge stated that Australian courts have held that it is not possible to automatically exclude the operation of the Australian Consumer Law as to do so would impermissibly undermine the public policy of the legislation.[122]
6. The judge expressed the view that the concepts of freedom of contract and allocation of risk do not provide a 'platform' for parties to act contrary to the law whether by way of contravention of the Australian Consumer Law or by deceit.[123]
7. The judge said that for the reasons he had set out, the Viterra Parties had 'made each of the Financial and Operational Performance Representations as alleged'.[124] After briefly dealing with an issue which is no longer relevant, that completed the judge's treatment of issue 15.

The judge's consideration of whether the Financial and Operational Performance Representations were false or misleading

1. The judge then turned to the issue of whether the Financial and Operational Performance Representations were false and whether the Viterra Parties thereby had engaged in misleading or deceptive conduct, 'including in light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms, and the Alleged Industry Practices'. This was issue 16 in the parties' list of issues.
2. Amongst other things, the judge recorded the Viterra Parties as submitting that, in the entire context, each of the Financial and Operational Performance Representations was a 'starting point statement only', and that s 18 of the Australian Consumer Law did not require every representation to be accurate 'but only as accurate or reliable as it was represented to be'.[125] The judge recorded the Viterra Parties as submitting that the representations 'made as starting point statements' had to be seen in the context in which they were made, 'including the Alleged Industry Practices' (which the judge found did not exist) and that the failure to identify inaccuracies was the fault of Cargill for failing to properly complete their investigations. The judge rejected these contentions, cross‑referencing his conclusion to his subsequent treatment of the issue as to whether Cargill Australia suffered loss partly as a result of its failure to take reasonable care.[126]
3. The judge's general conclusion was expressed as follows:

The Financial and Operational Performance Representations were misleading or deceptive conduct within the meaning of section 18 of the Australian Consumer Law. Speaking generally, each of the representations made portrayed a misleading position as to the financial and operational performance of Joe White. Put simply, the Viterra Practices were utilised to underpin the production, sales and earnings figures stated in the Financial and Operational Information, as well as give the false appearance of compliance with customers' contracts, including their specifications. It followed that most of the Financial and Operational Performance Representations were necessarily misleading as a result of these circumstances.[127]

1. After that general conclusion, the judge addressed each of the individual representations separately, concluding in relation to each one that it was misleading.[128]
2. The judge referred to questions he had put to senior counsel for the Viterra Parties in the course of closing submissions. The judge described the effect of the exchange as follows:

As may be seen, none of the responses really grappled with the underlying question as to whether any of the representations made in the Information Memorandum (either expressly or implicitly) were, in themselves, misleading because they were not correct or were an inaccurate statement in relation to the Joe White Business. In short, when the Viterra Parties were given the opportunity to explain why it might be that the representations in the Information Memorandum identified by Cargill Australia were a true reflection of the Joe White Business, that opportunity was not taken.

In making this observation, no criticism is intended. On the evidence, and given the concessions properly made by the Viterra Parties with respect to the existence of each of the Reporting Practice, the Varieties Practice and the Gibberellic Acid Practice, it could not have been responsibly contended by counsel that, by way of example only, it was accurate to state that Joe White supplied the highest quality malt or that Joe White met the exact specifications and requirements of its customers.[129]

1. The judge found that the Financial and Operational Performance Representations were made in trade and commerce,[130] and that the making of those representations was relevantly Glencore's conduct within the meaning of s 139B(2) of the Competition and Consumer Act 2010 (Cth).[131] The judge reached the same conclusion in relation to Viterra.[132]

1. The primary judge then turned to an issue which is also relevant to a ground of appeal, being whether Cargill Australia entered into the Acquisition Agreement in reliance upon the Financial and Operational Performance Representations, including in the light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms, and the Alleged Industry Practices.[133] This is the subject matter of ground 8.
2. The judge set out what he described as a 'broad overview' of the pleadings,[134] and set out the legal principles applicable to the recovery of loss and damage after contravention of s 18 of the Australian Consumer Law.[135]
3. The judge observed that in this context, reliance is a 'tool of analysis'. To recover loss or damage for contravention of s 18 of the Australian Consumer Law, it must be shown that the loss or damage was 'because of' the contravening conduct. He observed that generally where the impugned conduct consisted of positive representations, the causation requirement would be met by the claimant establishing reliance upon the misrepresentation. The judge observed that it was not necessary that there be specific evidence of reliance and that in appropriate circumstances the court could draw a fair inference that the representee had relied. The judge reviewed relevant authorities in this context,[136] and set out the submissions made by Cargill Australia and the Viterra Parties on this issue.[137]
4. The judge concluded that it had been demonstrated in 'numerous ways' that Cargill Australia entered into the Acquisition Agreement in reliance upon the Financial and Operational Performance Representations.[138] In addressing this issue in detail, the judge began with the evidence of Paul Conway, corporate vice president of Cargill, Inc and a member of the Cargill leadership team. The judge said that throughout the sale process, Conway was kept informed of the progress and the key issues that arose.[139]
5. On this application for leave to appeal, the Viterra Parties are critical of the primary judge's treatment of, and reliance upon, Conway's evidence (ground of appeal 8). It is accordingly necessary to set out what the judge said about Conway:

Because of Conway's senior position, he was not fully across procedures and practices relating to how Cargill conducted Cargill Malt. For example, Conway was not aware of the expression 'theoretical blend analysis' and it never occurred to him that Cargill might have policies affecting the preparation of Certificates of Analysis that were different to other maltsters. However, Conway knew that Cargill had policies for Certificates of Analysis that required them to be true and accurate in relation to all products that left Cargill's plants. Also because of his senior position, in 2013 Conway did not read some of the critical documents in this case. He gave evidence that he did not read the Confidentiality Deed, the Information Memorandum, or the Acquisition Agreement or any draft of it. Although it was not addressed in his evidence, it was also highly unlikely he read the Management Presentation Memorandum. The means by which Conway was kept informed was by reports made to the Cargill, Inc leadership team and the board. Those reports were prepared by persons who were directly responsible for reading the relevant documentation and for being involved in the Due Diligence.

Like a number of other Cargill executives, Conway had the authority in 2013 to decide unilaterally not to proceed with the Acquisition if he had been so minded. Conway's unequivocal evidence was that if he had known in substance of the Viterra Practices before 4 August 2013 then Cargill would never have signed the Acquisition Agreement. There is always a need for caution when assessing evidence given in hindsight concerning hypothetical situations. However, Conway's evidence was not only plausible but compelling. He explained that the Viterra Practices would have had the potential to have a significant impact on the value of the Joe White Business. In addition, Conway would have been concerned about the culture of Joe White as Cargill had sent a full team down to Australia to do a due diligence and such matters had not come out during that process. Further, after the Viterra Parties had repeatedly emphasised during the earlier stages of the trial the significance of the evidence of Conway before he was called, his evidence on this point was not the subject of any challenge.

Although Conway gave no evidence directly concerning the making or otherwise of the Financial and Operational Performance Representations (which was unsurprising in circumstances where he did not read the key documents the subject of the sale process), Conway's evidence alone was sufficient to establish Cargill's reliance upon them. In essence, what was reported to Conway and other members of both the board and the Cargill leadership team was the product of what had been represented in the Pre-Execution Statements and as the result of the Due Diligence. In Conway giving evidence that knowledge of the Viterra Practices alone would have resulted in Cargill not proceeding, effectively Conway's evidence was that knowledge of a subset of the Undisclosed Matters would have been enough to undermine the transaction and Cargill's interest in it.[140]

1. The judge observed that evidence relevantly the same as Conway's was given by two other Cargill executives with authority to stop the transaction (Frank Van Lierde[141] and Doug Eden[142]) and by another senior executive involved in the transaction from its inception (Emery Koenig[143]). The judge said that if the evidence of any one of these individuals were accepted, that would relevantly establish reliance.[144]
2. The judge continued that another means by which reliance was demonstrated was the evidence concerning the way Cargill in fact assessed the Joe White business. The judge considered that the contemporaneous documentation recording that process demonstrated that Cargill did in fact rely upon the information supplied by the Viterra Parties. The judge considered that it had been demonstrated that Cargill would not have assessed the value of Joe White in the way they did, or at the figure which they eventually did, if they had not done so in reliance upon the Financial and Operational Performance Representations.[145]
3. Earlier in the primary judgment the judge had set out in some detail how Cargill had arrived at the amounts which they did for both their Indicative Bid and Final Bid. Cargill had engaged Goldman Sachs as a financial adviser on the proposed transaction. Goldman Sachs and Cargill separately prepared assessments of the value of the Joe White business. The Goldman Sachs assessment prepared in relation to the Final Bid stated that it was based upon the Information Memorandum, the Management Presentation, the data room documents and questions and answers which had been provided. Cargill did their own separate assessment for the purposes of the Final Bid, and the judge found this 'valuation model' was ultimately the basis for Cargill's Final Bid. In Cargill's valuation model the actual results for the period 2010-12 and the estimates for 2013 were taken directly from the information provided in the data room. As to projections into the future, the forecasts produced by both Cargill and Goldman Sachs used as a starting point the data which had been provided by the Viterra Parties. Cargill's forecasts were not the same as those provided in the Management Presentation.[146]
4. Returning to the judge's analysis of the issue of reliance, the judge then said that, 'on a more general level', the internal reports prepared by Cargill for the leadership team and the board were expressed in positive terms. The judge concluded that there could be 'little doubt' that if Cargill had been informed of the Undisclosed Matters or the Viterra Practices, the internal reports would have been in very different terms. The judge rejected a submission by the Viterra Parties that Cargill was so keen to acquire Joe White that they would have entered into the Acquisition Agreement regardless of whether or not the Financial and Operational Performance Representations were made.[147]
5. The judge then said:

Neither the Sale Process Disclaimers nor the Acquisition Agreement Liability Terms alter the fact that Cargill relied upon the Financial and Operational Performance Representations. This was notwithstanding the fact that I accept the submission of the Viterra Parties that the Acquisition Agreement Liability Terms, together with the negotiations leading up to their inclusion in the Acquisition Agreement, provided probative evidence of a state of mind of Cargill Australia that was inconsistent with reliance upon the Financial and Operational Performance Representations to the extent they did not fall within or overlap with the Warranty Representations. Plainly, some aspects of what was agreed to was inconsistent with such reliance. Despite this, both the contemporaneous evidence and the evidence given at trial demonstrated overwhelmingly that Cargill did in fact rely upon the Financial and Operational Performance Representations. Taking into account all the evidence that was before the court, there was a myriad of reasons why Cargill would not have proceeded with the transaction if, as a bare minimum, it had known of the Viterra Practices.[148]

1. The judge accepted that Cargill 'proactively and independently' conducted their own investigations. The judge said that if Cargill had discovered matters that were inconsistent with the Financial and Operational Performance Representations, then that 'would have severed' any reliance. The judge said, however, that 'despite some initial doubts', ultimately Cargill relevantly accepted and relied upon what had been conveyed.[149]
2. The judge concluded that the Financial and Operational Performance Representations were 'calculated to induce Cargill to purchase the shares in Joe White', and that nothing in the Sale Process Disclaimers or the Acquisition Agreement Liability Terms altered the fact that that was Glencore and Viterra's intention.[150]
3. The judge concluded that Cargill's reliance was reasonable in the circumstances. The judge observed that the 'strictures' imposed by Glencore in relation to confidentiality and access to information meant that Cargill had little alternative other than to test the information provided and, subject to appropriate investigations and analyses, to rely upon that information unless the investigations and analyses disclosed that what Cargill was being told was not correct. The judge observed that this was precisely what Glencore anticipated prospective purchasers, including Cargill, would do and he footnoted that conclusion by reference to a detailed account which he had given as to the process by which the information to be provided to prospective bidders had been compiled.[151]
4. The judge's observation concerning the 'strictures' imposed by Glencore was a reference to the restrictions imposed in the documents forming part of the sale process on access to and use of information, and on communications with Joe White employees, to which further reference will be made later.
5. The next issue dealt with was the question of the state of Cargill's knowledge of relevant matters. In substance, the judge accepted that the Viterra Parties had established that Cargill had knowledge of certain matters, but he concluded that none of those matters individually or collectively gave Cargill notice of any of the Undisclosed Matters.[152]

The judge's consideration of whether Viterra knew that the Financial and Operational Performance Representations were false

1. The judge then addressed the issue of whether Viterra knew that the Financial and Operational Performance Representations were false. This was relevant to a claim against Viterra in deceit. This deceit claim was advanced only against Viterra - it had originally also been advanced against Glencore, but that claim was expressly withdrawn. The issue of whether Glencore had acted fraudulently was nevertheless addressed by the judge later, in the context of the Viterra Parties' claim that Cargill Australia's damages should be reduced under the proportionate liability and contributory negligence provisions in ss 87CD and 137B of the Competition and Consumer Act 2010 (Cth). Pursuant to those provisions there is to be no reduction if the person who caused the loss did so fraudulently. This issue is relevant to ground 22.
2. After setting out the applicable legal principles and the submissions made,[153] the judge articulated the critical issue as being whether the Financial and Operational Performance Representations made by Viterra were fraudulent because of Hughes' knowledge as agent for Viterra.[154]
3. The judge observed that the Financial and Operational Performance Representations were 'predominantly' made by the provision of documents, coupled with some oral representations made by Hughes and, to a much lesser extent, Scott Argent.[155] The judge then observed:

However, by reason of his direct involvement in the drafting and finalising of both the Information Memorandum and the Management Presentation Memorandum, as well as his active participation in the Management Presentation, the Operations Call and the Commercial Call, to the extent that [the Financial and Operational Performance Representations] were not made by Hughes, he was fully aware of all of the statements made concerning Joe White which gave rise to the Financial and Operational Performance Representations.[156]

1. The judge observed that given those conclusions, the only matters remaining for determination were the extent of Hughes' knowledge of the falsehood and whether that knowledge ought to be attributed to Viterra.[157] The judge reviewed the evidence as to Hughes' knowledge,[158] and repeated the finding which had already been made that Hughes was Viterra's agent for the purposes of the sale process.[159]
2. The judge's relevant conclusion was as follows:

Hughes was fully aware as to the making of the Pre-Execution Statements that gave rise to the Financial and Operational Performance Representations. Accordingly, in addition to Viterra making the Financial and Operational Performance Representations, by reason of Hughes' knowledge being attributable to Viterra and his role in the sale process as explained above, Viterra knew they were false. Alternatively, in the circumstances referred to above, Hughes could not have genuinely believed any of the Pre-Execution Statements (and thus the Financial and Operational Performance Representations) were true. Even if that is incorrect, alternatively and at the very least, Hughes was reckless as to whether or not the Pre-Execution Statements (and thus the Financial and Operational Performance Representations) were true or false.[160]

1. The judge found that Viterra made the Financial and Operational Performance Representations with the intent that Cargill Australia would rely upon them.[161] For present purposes, the following passage in the course of that consideration is noteworthy:

The intention to induce prospective purchasers, including Cargill, was not displaced by the Sale Process Disclaimers. The context in which the Sale Process Disclaimers were imposed, and the regime created with respect to the extent to which the information disclosed could be verified and assessed, was entirely consistent with the intention to induce Cargill to rely upon the Financial and Operational Performance Representations. As discussed elsewhere, Cargill and other prospective purchasers had limited and very controlled means by which they could conduct their own investigations and analyses in assessing the Joe White Business.[162]

1. In the context of what the judge described as '[f]urther observations' in relation to the issue of whether Viterra made the Financial and Operational Performance Representations with the intent that Cargill Australia would rely upon them, the judge addressed the circumstance that Hughes had not been called as a witness by either side.[163]
2. Cargill Australia also made claims based upon representations referred to as the Pre-Completion Representations and the Other Bidders Representations.

The judge's consideration of the Pre-Completion Representations

1. There is a ground of appeal concerning the Pre-Completion Representations (ground 11). The issue raised is causation. The judge's significant conclusions in relation to that issue are as follows.
2. In October 2013, as a result of discussions with Hughes, Youil and Stewart, Cargill learnt something of the existence of the Operational Practices.[164] This discovery led to communications between Cargill and the Viterra Parties in the latter part of October. Cargill sent two letters, one to Viterra dated 22 October 2013, and one to David Mattiske, a Glencore executive, dated 29 October 2013. The responses to those letters were dated 25 October and 30 October 2013. In addition there were three phone calls between Mattiske and the managing director of Cargill Australia, Philippa Purser, on 29 and 30 October 2013.
3. The Pre-Completion Representations were alleged to have been made in the course of these communications in late October 2013. The representations which it is alleged that Glencore or Viterra or both conveyed, were the following:
   • (1) The Operational Practices had occurred only to an insignificant extent.
   • (2) The Operational Practices had no impact on the production, sales and earnings figures and operational performance stated in the Financial and Operational Information.
   • (3) The production and sales figures stated in the Financial and Operational Information were based upon compliance with customer contracts including customer specifications, and as a result, had been properly and lawfully achieved.
   • (4) The assets of the Joe White Business were sufficient for Joe White to sell malt in the volumes and for the returns stated in the Financial and Operational Information.
   • (5) By reason of the matters alleged in subparagraphs (1) to (4) above, Joe White had low future capital expenditure needs in the short to medium term.[165]
4. The judge found that Glencore and Viterra had made the Pre-Completion Representations alleged.[166] He found that these representations were false and that Glencore and Viterra thereby engaged in misleading or deceptive conduct.[167] The representations were made in trade and commerce.[168]
5. The judge found that Cargill Australia had not relied upon the Pre-Completion Representations in completing the Acquisition Agreement,[169] but he found that by reason of the Pre-Completion Representations Cargill Australia had been deprived of the opportunity to obtain properly informed legal advice about whether it was 'entitled to terminate the Acquisition Agreement in the period leading up to Completion'.[170] The judge found that, if Cargill Australia had obtained properly informed legal advice, it was more likely than not that that advice would have been that Cargill Australia was lawfully 'entitled to terminate' the Acquisition Agreement prior to Completion because of contraventions of the Australian Consumer Law.[171] The judge concluded that, if Cargill Australia had received that advice, it 'would have terminated before Completion'.[172]
6. In relation to Cargill's state of mind consequent upon what occurred in late October 2013, the judge's relevant conclusions were as follows:

There was no controversy that, prior to Completion, Cargill had been told of the existence of each of the Operational Practices. However, at the time of Completion Cargill did not know the extent to which any of the Operational Practices were implemented, much less the extent to which they might have impacted upon the operational and financial performance of the Joe White Business. Indeed, Cargill had not even been provided with the Viterra Policies.

Further, whatever knowledge or suspicion Cargill may have had must be seen in light of the October 2013 Responses. In particular, the final word from the Viterra Parties was that Certificates of Analysis had been issued in accordance with the accredited quality system of the International Organisation for Standardisation, that the issue with barley varieties was only short term, and that steps had been taken so it would be unnecessary to use gibberellic acid where customers prohibited it. More generally, Cargill was also told any concern about Joe White's plants' ability to meet customers' specifications was unfounded. Each of these assertions bore no resemblance to operations that incorporated the Viterra Practices.

In short, there was no real basis to suggest that Cargill knew (or had effective notice to form a basis to suspect in any substantive or material way) that Joe White was or had been engaged in the Viterra Practices in the manner in which it was when it proceeded to Completion.[173]

1. In relation to deceit, in contrast to the position in relation to the Financial and Operational Performance Representations, Cargill did not establish that there was any individual within Viterra who knew both that the Pre-Completion Representations had been made and that they were false.[174] The judge suggested that the substance of Cargill's case on this issue relied upon an aggregation of the knowledge of a number of officers or agents of Viterra and that that approach was bound to fail.[175] The judge reached the same conclusion in relation to Glencore's knowledge.[176] Thus the deceit claim based on the Pre-Completion Representations failed.
2. However, the misleading or deceptive conduct claim based on the Pre-Completion Representations succeeded. The judge found that both Viterra and Glencore made the Pre-Completion Representations intending that Cargill Australia should rely upon them.[177]

The judge's consideration of the Warranty Representations

1. The judge then turned to issues relevant to the Warranty Representations. Claims founded on the Warranty Representations were advanced only against Viterra. The Warranty Representations are in the Acquisition Agreement itself. Glencore is not a party to that agreement.
2. Certain of the Warranties warranted the truth of specified matters to the best of Viterra Malt's knowledge and awareness, including relevantly Warranties 7.3, 9.2, and 12(b) and (c), set out earlier. Clause 31.15 of the Acquisition Agreement provided that Viterra Malt 'will be deemed to know or be aware of a particular fact, matter or circumstance only if one or more of Jason Rees, Damian Fitzgerald, Matt Mann or David Mattiske are actually aware of that fact, matter or circumstance on the date the Warranty is given or would have been aware had they made reasonable enquiries'. The first issue the judge turned to (in accordance with the parties' agreed list of issues), in the context of the Warranties, was whether Viterra was deemed to have known the pleaded facts, matters and circumstances relating to the Viterra Practices, the Financial and Operational Information and the Undisclosed Matters. The judge found that Viterra was deemed to have known facts, matters or circumstances that rendered Warranties 7.3, 9.2, and 12(b) and (c) untrue and incorrect.[178]
3. Clause 13.3 of the Acquisition Agreement provided that each Warranty was to be read down and qualified by any information relevantly disclosed which was inconsistent with that Warranty. The judge held that there were no grounds for qualifying the Warranties with respect to what was alleged to have been disclosed to, or known by, Cargill Australia.[179]
4. The judge then turned to Warranties 4.2(a), (b) and (c). Cargill Australia did not press its claim for breach of Warranty 4.2(b).[180]
5. Warranty 4.2(a) was a warranty that the 'Records' (widely defined) had been compiled and maintained in good faith. The judge's conclusion was that, as a result of the materially misleading nature of the Financial and Operational Information, and to the knowledge of Viterra, 'the relevant "Records" were not compiled in good faith'.[181]
6. Warranty 4.2(c) was a warranty that the Records were complete and up to date in all material respects. The judge's conclusion was that, in circumstances where the Viterra Practices underpinned the Joe White Business, the non-disclosure of the Viterra Practices was material and thus the Records 'were not complete in all material respects, in breach of Warranty 4.2(c)'. The judge observed that the Viterra Certificate of Analysis Procedure and the Malt Blend Parameters Procedure, which he referred to as the 'Viterra Policies', had been marked and filed in a manner that meant the Records remained incomplete, and that 'there were no documents forming part of the Records which dealt with the Varieties Practice or the Gibberellic Acid Practice'.[182]
7. Warranties 12(a), (b) and (c) were warranties as to the Data Room Documentation (as defined). It was warranted that the documentation had been collated and disclosed in good faith and with reasonable care; that, to Viterra Malt's knowledge and awareness, no material information had been omitted; and that the documentation was true and accurate in all material respects. The judge found that Viterra breached Warranties 12(a), (b) and (c) on the date of the Acquisition Agreement and again at Completion.[183]
8. Warranty 7.3 was a warranty that, to Viterra Malt's knowledge and awareness, Joe White was not in material default of any material contract, nor had anything occurred or been omitted which would be a material default but for the requirement of notice or lapse of time or both. The judge focused his analysis on one particular customer, Asia Pacific Breweries. He concluded that Warranty 7.3 was breached in relation to that customer, and accordingly, considered it unnecessary to make findings about other customers whose contracts were allegedly breached.[184] The judge added that, with the possible exception of four customers whom he named, Warranty 7.3 was also breached in relation to the other customers relied upon by Cargill Australia.[185]
9. Warranty 9.2 was a warranty, relevantly, that, to the best of Viterra Malt's knowledge and awareness, there were no facts or circumstances which may give rise to a Claim (as defined) or any legal, administrative or government proceedings. The judge found that this Warranty was also breached both upon entry into the Acquisition Agreement and at Completion.[186]
10. Warranty 13.4 warranted that the business had been conducted in the ordinary course in a proper and efficient manner since the 'Last Balance Sheet Date' (being 31 October 2012), and Warranty 17 relevantly was a warranty that the business had been conducted in accordance with applicable laws. The judge found that Warranty 13.4 had been breached because the business had not been conducted in a proper and efficient manner.[187] He found that Warranty 17(a) had been breached because 'laws' within the meaning of the warranty included the Australian Consumer Law and because there had been material contractual breaches.[188]
11. Given the judge's findings about the specific Warranties, he concluded that the representation and warranty by Viterra in cl 13.1 that each Warranty was correct and not misleading was breached at the dates of entry into the Acquisition Agreement and of Completion.[189] Similarly, he held that the obligation in cl 13.8(a) to notify Cargill Australia if Viterra became aware of any matter which in its reasonable opinion would result or be likely to result in any Warranty not being correct was also breached; as was Viterra's obligation in cl 13.8(b) to use all reasonable endeavours to remedy the relevant fact, matter or circumstance before Completion.[190]
12. Notwithstanding these conclusions, Cargill's claim for breach of contract failed as a consequence of the operation of cl 15.4(b) of the Acquisition Agreement, which provided that Viterra was not liable to Cargill Australia for any claim arising out of the transaction documents if Cargill, Inc has ceased to control Joe White. Because Cargill, Inc had sold Joe White, cl 15.4(b) operated to extinguish any contractual liability Viterra may have had to Cargill Australia for breaches of the Warranties.[191]
13. The judge then addressed the question of whether Viterra had conveyed representations in the same terms as the Warranties. By reference to the terms of the Acquisition Agreement, the judge held that they had.[192] Clause 1.1 defined 'Warranties' as the warranties 'and representations' set out in Schedule 4. Clause 13.1 provided that each of the Viterra companies 'represent' and warrant the correctness of each Warranty.
14. The next issue that the judge turned to is the subject matter of a ground of appeal 9. By ground 9, it is contended that the judge had been wrong to conclude that Cargill Australia relied upon the Warranty Representations, and that he should have concluded Cargill Australia did not so rely because the representations 'were not made prior to the formation of the Acquisition Agreement'. The submission on this ground relies upon the fact that the Warranty Representations were made contemporaneously with the alleged conduct in reliance, being entry into the Acquisition Agreement.
15. Before the primary judge, the Viterra Parties contended that there was no reliance upon a number of grounds. The judge rejected all of these grounds. The primary judge described the submission put to him as to the relevant sequence of events as follows:

On the Viterra Parties' submission, the causation requirement could not be satisfied because they contended the reliance was alleged to have occurred before the conduct relied upon, so the alleged cause occurred after the alleged effect.[193]

1. The judge held that the alleged reliance had not occurred before the conduct (ie the making of the Warranty Representations). Rather, 'the act of representing occurred simultaneously with the act of warranting', and that the act of warranting occurred 'at the time of contract formation'.[194]
2. The judge then said that, 'in any event the answer to this submission by the Viterra Parties is found in clause 13.7(a)', by which Viterra expressly acknowledged that '[Cargill Australia] has entered into this agreement and will Complete in reliance on the Warranties'.[195]
3. The judge found that Warranties 4.2(a) and (c), 7.3, 9.2, 12(a), (b) and (c), 13.4 and 17(a) had all been breached and that the representations they conveyed constituted misleading or deceptive conduct under the Australian Consumer Law. The judge observed that the finding that each of these Warranties had been breached was based upon a conclusion that the statement the subject of the Warranty was incorrect at the relevant time, and he said that, in the circumstances, those incorrect representations were misleading or deceptive.[196]
4. The judge found the Warranty Representations were made in trade or commerce.[197] In closing submissions, Cargill did not press allegations that the Warranty Representations were known to have been false.[198] Thus, in the end, there was no deceit claim advanced founded on the Warranty Representations.

The judge's consideration of the Other Bidders Representations

1. The judge then turned to issues related to the Other Bidders Representations. Ground of appeal 12 concerns these representations.
2. Shortly prior to execution of the Acquisition Agreement, an executive of Glencore, Chris Mahoney, had two phone conversations with Koenig, a board member of Cargill, Inc, directed towards persuading him that Cargill should increase their offer for Joe White. The offer submitted by Cargill at the conclusion of the Phase 2 due diligence process had been $405 million. This was substantially higher than any other offer.[199] Mahoney was seeking to persuade Koenig to increase their offer to $420 million. The judge found that in the first conversation, amongst other things, Mahoney had asserted that he had other bidders 'there', 'at that number' or 'at that level'.[200] This conclusion is the subject of ground 12.
3. Cargill subsequently agreed to increase their offer. They did so on the condition that the Viterra Parties would compromise on certain terms of the Acquisition Agreement. The process by which Cargill reached that position and whether Mahoney's statements caused any loss is also the subject of ground 12.
4. The Other Bidders Representations were alleged to be that the Viterra Parties had received other Phase 2 bids which were equal to or higher than Cargill's bid; further or alternatively, that there were other bids that were close to Cargill's bid; and further or alternatively, that Cargill needed to pay an additional $15 million to secure the acquisition. The judge found a representation as to the other bids was made, accepting the formulation that such other bids were equal to or higher than Cargill's bid.[201] The judge also found that a representation that it was 'necessary' for Cargill to increase their bid was conveyed.[202] The judge held that these representations were 'demonstrably false'.[203]
5. There was no dispute that Mahoney's conduct was attributable to Glencore. There was an issue as to whether it was attributable to Viterra. The judge held that it was.[204]
6. The judge held that, because the Other Bidders Representations were demonstrably false, Glencore and Viterra had engaged in misleading or deceptive conduct within the meaning of the Australian Consumer Law.[205] The judge held that the Other Bidders Representations were made in trade or commerce, notwithstanding that the relevant telephone conversations occurred overseas.[206]
7. The judge addressed the issue of reliance at some length, concluding that Cargill did rely upon the Other Bidders Representations in raising their bid from $405 million to $420 million.[207]
8. The judge found that Glencore and Viterra both knew that the Other Bidders Representations were false, or did not genuinely believe they were true, or were reckless as to whether they were true or false.[208] The judge held that the representations were made with the intention that Cargill should rely upon them.[209] Accordingly, in relation to the Other Bidders Representations, Cargill Australia succeeded both on the basis of misleading or deceptive conduct, and deceit, against both Glencore and Viterra.
9. The loss suffered by Cargill Australia in relation to the Other Bidders Representations was the additional $15 million it agreed to pay in reliance.[210] As matters transpired, this finding was effectively overtaken by Cargill Australia's success in relation to the Financial and Operational Performance Representations, the Warranty Representations and the Pre-Completion Representations.
10. At this point in the judgment, the judge turned to address issues concerning loss and damage.[211] These matters will be addressed separately in the context of the grounds directed to those issues. However, in the course of the primary judge's analysis, he addressed some matters relevant to the grounds of appeal concerning liability.

The judge's consideration of the effect of cl 15 of the Acquisition Agreement

1. The Acquisition Agreement contained detailed provisions limiting the liability of Viterra. The provisions were in cl 15. For present purposes, the most significant of these provisions was cl 15.4(b) to which reference has already been made, and which is the subject of grounds of appeal 4 and 5 and contention 2. There were also other potentially limiting provisions including a provision limiting claims to a minimum amount (cl 15.7), a provision imposing a maximum liability on claims (cl 15.8), and a provision excluding liability for consequential loss (cl 15.9). When addressing the question of what damages Cargill Australia was entitled to pursuant to s 236 of the Australian Consumer Law and in deceit, the judge said:

[T]he amount derived using this approach need not be adjusted by reason of any of the terms of the Acquisition Agreement. This follows from the fact that, had Cargill not been misled and deceived, or alternatively been subjected to fraudulent conduct by way of deceit, Cargill Australia would never have entered into the Acquisition Agreement, or having done so acting on the impugned conduct it would never have completed the Acquisition.[212]

1. The conclusion in this quoted passage is one of the issues raised on grounds of appeal 4 and 5 and contention 2. The footnote to the quoted passage cited Henjo and the following additional authorities: Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd ('Warwick Entertainment');[213] Marks v GIO Australia Holdings Ltd;[214] Clark Equipment Australia Ltd v Covcat Pty Ltd ('Clark Equipment');[215] Petera Pty Ltd v EAJ Pty Ltd ('Petera')[216] and the cases there cited; and Commercial Banking Co of Sydney Ltd v R H Brown & Co ('Commercial Banking').[217]
2. In the course of dealing with cl 15, the judge referred to what he described as an implicit recognition in the Viterra Parties' submissions that claims for loss by reason of deceit, or because of misleading or deceptive conduct, could not be excluded by contractual provisions that had been agreed because of that conduct.[218] The judge said it would be contrary to 'long-standing authority' to permit such a denial in relation to deceit (citing Commercial Banking), and in relation to misleading or deceptive conduct (citing Henjo).[219]

The judge's consideration of ss 87CD and 137B of the Competition and Consumer Act

1. The judge addressed and rejected the Viterra Parties' contention that Cargill Australia's damages should be reduced pursuant to ss 87CD and 137B of the Competition and Consumer Act 2010 (Cth). This issue is the subject of ground of appeal 22. For present purposes, it is sufficient to note that the judge found that all of the Viterra Parties, including Glencore, had fraudulently caused Cargill Australia's loss. Hughes' knowledge, which was attributed to Viterra, was also attributed to Glencore.[220]

The judge's consideration of cl 10.4 of the Confidentiality Deed

1. The judge then turned to a series of issues concerning the Confidentiality Deed, and the Deed of Release by which obligations under the Confidentiality Deed were released, which were relevant to claims made by the Viterra Parties against Cargill but which are not the subject of any ground of appeal or contention on this application. In that context, the judge summarised the relevant provisions of the Confidentiality Deed, concluding with the observation that cls 10.2 and 10.3 were expressly subject to cl 10.4.[221] That statement contained a footnote which has significance to ground of appeal 3 concerning cl 10.4 of the Confidentiality Deed. The footnote reads:

Clause 10.4 provided that, notwithstanding anything in the Confidentiality Deed, Glencore and its Representatives would be responsible for representations or obligations set forth in separate written agreements. As a result, clauses 10.2 and 10.3 had no operation in respect of the Warranty Representations as set forth in the Acquisition Agreement.[222]

1. Cargill sought to meet the claims and the defence advanced by the Viterra Parties based on the Confidentiality Deed by relying upon the Deed of Release. For present purposes, it suffices to note that their reliance upon the Deed of Release in this respect was substantially unsuccessful.[223] There is no ground of appeal, or notice of contention, contesting this outcome.

The judge's consideration of cl 13.4 of the Acquisition Agreement

1. The judge addressed other issues concerning the Confidentiality Deed, which do not have relevance to the application and appeal now before this Court, before turning to a series of issues which are relevant to ground of appeal 10 and contention 3. These issues concern what were referred to as the 'No Reliance Representations' contained in cl 13.4 of the Acquisition Agreement.
2. By cl 13.4 of the Acquisition Agreement, Cargill Australia acknowledged and agreed (amongst other things) that in entering into the agreement it did not rely upon any representation except the Warranties (cl 13.4(a)), and that it had independently determined to enter into the agreement without the benefit of any representation other than the Warranties (cl 13.4(d)). Viterra claimed Cargill Australia and Cargill, Inc engaged in misleading or deceptive conduct if they relied upon representations other than the Warranties.
3. The judge found that by not only agreeing to, but also acknowledging, the matters set out in cls 13.4(a) and (d), Cargill Australia made the No Reliance Representations, and that this was conduct for the purposes of s 18 of the Australian Consumer Law.[224] The judge held that the conduct in question was in trade or commerce,[225] and that Viterra had relied upon the No Reliance Representations in entering into the Acquisition Agreement.[226] The judge held, in substance, that insofar as Cargill Australia had relied upon representations beyond the Warranty Representations, the No Reliance Representations were misleading or deceptive.[227]
4. On the question of what loss the Viterra Parties suffered as a consequence of misleading or deceptive conduct constituted by the No Reliance Representations, the judge held that the Viterra Parties had failed to establish any loss. This conclusion is the subject of ground 10 and contention 3.
5. According to the primary judge, the claim for loss which the Viterra Parties made was founded on the proposition that they would not have entered into the Acquisition Agreement if the No Reliance Representations had not been made, and that they would not have been 'exposed' to Cargill Australia's claims.[228] In the primary judge's view, this approach did not withstand analysis. The judge said:

The relief as sought by the Viterra Parties, if granted, would put Viterra in the position it would have been in if the Acquisition had proceeded, but Cargill Australia had never brought this proceeding. This may have been the position, subject to the Cargill Parties' other claims, that Viterra would have been in had the No Reliance Representations been true at the time the Acquisition Agreement was entered into; but this scenario was not the correct counterfactual. On the case as put by the Viterra Parties, had they known the No Reliance Representations were misleading, Viterra would not have entered into the Acquisition Agreement.

If Viterra had never entered into the Acquisition Agreement, it would never have received the purchase price paid by Cargill Australia, and its position would have been materially different than the position into which it sought to be put. In short, Viterra would have still owned the Joe White Business; a business it did not want to continue to own and operate and for which the next highest bid, which was presumably also based on the misleading information in the Information Memorandum that had been disseminated as part of the sale process, was $335 million. The Viterra Parties' position would have borne no resemblance whatsoever to the basis upon which they claimed Viterra was entitled to damages; namely, on the basis that it would have sold Joe White for $420 million (being an amount well in excess of its true value) with no exposure for the misleading conduct in which the Viterra Parties engaged.

In their submissions on the loss claimed by Cargill Australia, the Viterra Parties submitted that, since Cargill Australia had chosen to adopt only 1 measure of damages, if the approach Cargill Australia adopted was not the appropriate means of calculating the amount of loss, it would necessarily follow that Cargill Australia's claims for compensation must fail. The same reasoning applied here. No alternate measure of damages was claimed. Since the compensation claimed by the Viterra Parties was not available on the basis they adopted, and since the suggested counterfactual bore no resemblance to the circumstances that would have arisen if Cargill Australia had not engaged in misleading or deceptive conduct, the Viterra Parties' claim cannot succeed.[229]

1. The judge observed that, given this finding, it was unnecessary to address a submission made by Cargill that a fraudster cannot avoid liability by relying upon a provision in a contract which would not have been entered into if the fraudulent conduct had not occurred.[230] In an earlier footnote (n 3990) the judge had referred to a submission by Cargill that the claim had to fail because its effect would 'extinguish' Cargill Australia's statutory right to compensation, relying upon a decision of Jackson J in Venerdi v Anthony Morton Group ('Venerdi').[231] The judge had said it was unnecessary to deal with that submission given the other findings made.

The judge's consideration of cl 10.3 of the Confidentiality Deed

1. The judge then dealt with a number of issues concerning alleged breaches of the Confidentiality Deed. In the course of that consideration, he addressed the issue of whether the release provided for in cl 10.3 of the Confidentiality Deed was unenforceable as a matter of public policy insofar as it operated in relation to Cargill Australia's claims under the Australian Consumer Law and for deceit. The judge's conclusion in this regard is the subject of grounds 1 and 2.
2. The judge said:

Generally speaking, as a matter of public policy, liability for fraud, deceit or contravention of section 18 of the Australian Consumer Law cannot be excluded by a provision of a contract. Naturally, it is a question of fact as to whether a person has engaged in misleading or deceptive conduct or in deceit and the existence of a release may be directly relevant to this ultimate factual question. However, requiring a counterparty to enter into a release at the commencement of commercial dealings cannot provide a mechanism for the released party to then be absolved absolutely from subsequently engaging in misleading or deceptive conduct in trade or commerce contrary to the Australian Consumer Law.[232]

1. The judge cited a number of authorities in a footnote which reads:

In relation to liability for an action under the Australian Consumer Law, see, for example, Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246; (2018) 56 VR 557, 598-600 [113]-[116], 600-601 [118]-[120] (Riordan J); Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154, [112] (Meagher JA, with whom Beazley P and Ward JA agreed); Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40; (1988) 39 FCR 546, 561.1 (Lockhart J, with whom Burchett J agreed and Foster J relevantly agreed), in relation to s 52 of the Trade Practices Act, the predecessor of s 18 of the Australian Consumer Law. In relation to liability for an action in deceit, see, for example, Commercial Banking Co of Sydney Ltd v R H Brown & Co [1972] HCA 24; (1972) 126 CLR 337, 344.7 (Menzies J, with whom Barwick CJ, McTiernan and Gibbs JJ agreed).[233]

1. He repeated this conclusion a little later, stating that 'neither clause 10.2 nor clause 10.3 was enforceable against Cargill, Inc as a matter of public policy insofar as they would operate to prevent Cargill Australia from bringing claims for fraud, deceit or for contravention of section 18 of the Australian Consumer Law'.[234]
2. The same issue was addressed again by the primary judge in the context of the Viterra Parties' counterclaim and third party claim. In that context the judge said that the Viterra Parties 'accepted that parties to a contract cannot by agreement exclude liability for misleading or deceptive conduct'.[235] The footnote to that passage reads:

The Viterra Parties cited MBF Investments Pty Ltd v Nolan [2011] VSCA 114; (2011) 37 VR 116, 168 [217] (Neave, Redlich and Weinberg JJA); Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40; (1988) 39 FCR 546, 561.2 (Lockhart J, with whom Burchett J agreed and Foster J relevantly agreed).[236]

1. The judge went on to say that the Viterra Parties' submission was that their third party claim and counterclaim made no 'direct' attempt to modify or exclude s 18 but rather formed the foundation for a separate claim for breach of the provisions of the Confidentiality Deed.
2. The primary judgment then dealt with issues arising on the third party claims, in relation to which there is no ground of appeal. Amongst the allegations made in the third party proceeding was an allegation against the Joe White executives that the Undisclosed Matters were kept secret from the Viterra Parties and that, because they had not been revealed, the Viterra Parties lost the opportunity to disclose them to potential purchasers, amend the Acquisition Agreement, investigate the Undisclosed Matters, and cause Joe White to cease the Viterra Practices.[237] After a very detailed review of the evidence, particularly that of Mattiske, the judge was not satisfied that any of these steps would have been taken if the true extent of the Operational Practices had been revealed.[238] The judge observed that Mattiske's actions between 22 and 31 October 2013 'were not those of someone who earnestly wanted to understand and address those issues; nor of someone who intended to diligently oversee the necessary investigative process'.[239] The judge concluded that the prospect of the Viterra Parties taking the steps asserted 'appeared extremely remote'.[240]
3. After addressing the issues relevant to the third party claims, the judge returned to the issue of whether provisions of the Confidentiality Deed relied upon by the Viterra Parties were void and/or unenforceable. For the purposes of this application for leave to appeal, the relevant provision is the release provided for in cl 10.3 (the subject matter of grounds 1 and 2, and contention 1).
4. The judge referred to the submissions which had been made and then said the following:

As may be seen from the submissions, there was no real controversy that as a matter of public policy a contract will not be enforced by the court if the effect of doing so would be to prevent a person bringing a claim for loss suffered because of misleading or deceptive conduct in trade or commerce which was in contravention of section 18 of the Australian Consumer Law. Generally speaking, what has been contractually agreed between the parties, whether written or oral, must be considered as part of a determination of whether or not misleading or deceptive conduct has been engaged in. However, once it has been decided that such conduct has occurred, any loss that has been suffered because of that conduct is recoverable subject to the provisions of the statutory regime more generally.[241]

1. The judge recorded that the Viterra Parties had emphasised a submission that the case was about whether an experienced, highly sophisticated and expertly advised commercial party could succeed in claims precluded by detailed contractual arrangements. The judge then said:

Whatever might be agreed between properly advised commercial parties, no agreement can effectively permit a party to that agreement to engage in misleading or deceptive conduct in trade or commerce. In other words, even if the risk associated with the transaction has been contractually allocated to a purchaser rather than a seller before the sale is completed, that circumstance does not obviate or obscure the need for the court to determine whether there was any relevant conduct that was misleading or deceptive or likely to mislead or deceive. This determination requires the court to identify the conduct involved, and then to determine, in all the relevant circumstances (including the terms of any agreement before, at the time or after the conduct was engaged in), whether that conduct was misleading or deceptive. Having decided this, it is also necessary to determine whether the loss claimed to have been suffered was because of the impugned conduct.

In short, the question of whether or not there has been a contravention of section 18 of the Australian Consumer Law is a question of fact. That question cannot be answered merely by consideration of what the parties agreed to contractually, albeit any such agreement may be highly relevant to the question of fact.[242]

1. The judge distinguished a decision of Pembroke J, upon which the Viterra Parties relied, in Osborne v Iris Diversified Property Pty Ltd.[243]

The judge's consideration of cl 15.4(b) of the Acquisition Agreement

1. Finally, in the context of the primary judgment insofar as it is relevant to the grounds of appeal concerning liability, the judge dealt with the effect of cl 15.4(b) of the Acquisition Agreement. This issue is the subject of grounds 4 and 5, and contention 2.
2. It will be recalled that cl 15.4(b) provided that the Viterra companies would not be liable on any claim if Cargill, Inc ceased to control Joe White. The successful application to re-open concerned reliance upon this provision.
3. The judge held that cl 15.4(b) 'applied to extinguish any contractual liability' which Viterra may have otherwise had to Cargill Australia.[244] But, he went on to hold that it had 'no effect in respect of the claims for misleading or deceptive conduct or deceit on the basis that, had the conduct alleged in those claims not occurred, Cargill Australia would not have entered into the Acquisition Agreement'.[245] An authority which had been cited in the submissions of Cargill Australia on this issue, which the primary judge accepted, was Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd ('Brighton').[246]

1. The primary judge summarised his conclusions. Insofar as they are relevant to the grounds of appeal on liability, they were as follows.

(a) The claim for misleading or deceptive conduct founded on the Warranty Representations succeeded against Viterra. > > (b) The claim for misleading or deceptive conduct founded upon the Financial and Operational Performance Representations succeeded against both Viterra and Glencore. > > (c) The claim for misleading or deceptive conduct founded on the Pre-Completion Representations succeeded against both Viterra and Glencore. > > (d) The claim for misleading or deceptive conduct founded on the Other Bidders Representations succeeded against both Viterra and Glencore. > > (e) The claim in deceit founded on the Financial and Operational Performance Representations succeeded against Viterra. > > (f) The claim in deceit founded upon the Other Bidders Representations succeeded against both Viterra and Glencore. > > (g) Viterra's counterclaim against Cargill Australia and third party claim against Cargill, Inc founded on the No Reliance Representations failed, because no loss was established.

• (5) The legal principles adopted by the judge relevant to grounds 1-10

2. As has been seen in the summary of the primary judgment, the judge set out what he considered to be the legal principles to be adopted in the analysis of the operation and significance of the disclaimers. The legal principles so adopted by the primary judge in this context, which are relevant to the grounds of appeal, may be summarised as follows.
3. The judge adopted the principle that disclaimers are relevant to the consideration of claims for misleading or deceptive conduct, and deceit, insofar as they may, when considered in the entire context, result in a conclusion that a representation was not made, or was not misleading or deceptive, or was not relied upon. But, other than in that way, the judge held that such clauses cannot have the effect of avoiding liability for misleading or deceptive conduct, or for deceit, notwithstanding that their express terms might purport to do so.[247]
4. The judge adopted the principle that in determining whether conduct is misleading or deceptive, the conduct as a whole, including disclaimers, must be considered.[248]
5. The judge held that no reliance representations can themselves constitute misleading or deceptive conduct.[249]
6. The judge adopted the principle that exclusion clauses are not effective to absolve a party of liability for misleading or deceptive conduct, or for deceit, for two reasons. First, he considered that liability could not be excluded for reasons of public policy.[250] Secondly, he considered that where the exclusion clause is in a contract which the claimant had been misled (or deceived) into entering, it could not be effective because, absent the misleading conduct (or the deceit), the contract itself would not have been entered into.[251]
7. The Viterra Parties' submissions will be considered in detail below, but in broad summary, their position on these issues is as follows.
8. The Viterra Parties do not contest the judge's adoption of the principle that disclaimers, whilst relevant to a consideration of the conduct as a whole, cannot otherwise take effect in accordance with their terms. They contend, however, that the judge did not properly take the disclaimers into account and that he failed to properly consider the conduct as a whole.
9. A central authority on the role of public policy considerations in relation to disclaimers is the decision of the Full Court of the Federal Court in Henjo. The public policy considerations which have been adopted by the courts in this context have been the subject of recent academic criticism by Richard Scruby[252] and by Dyson Heydon.[253] The fact that Heydon refers to these public policy considerations as the 'Henjo doctrine'[254] is testament to the centrality of that decision. Henjo was repeatedly cited and relied upon by the primary judge in this context.[255]
10. At least in relation to ground 1, the Viterra Parties do not contest the authority of Henjo, provided it is confined to the specific circumstances addressed in that case; namely, where the contractual provisions sought to be relied upon are in an agreement the claimant has been misled into entering.[256] They contend that the principles in Henjo do not extend beyond that situation, and to the extent that Henjo itself, or cases purportedly applying it, extend the principles beyond that situation, they are wrong and ought not to be followed. On this basis they contend that the judge was wrong to apply the Henjo principles to cl 10.3 of the Confidentiality Deed, because that provision is not in an agreement Cargill was misled into entering.
11. The Viterra Parties contend that a party can contract to forgo private rights provided for by statute, unless that is expressly or impliedly precluded by the statute, which, they submit, the relevant provisions of the Australian Consumer Law do not do. They rely upon the High Court decisions in Price v Spoor[257] and in Westfield Management Ltd v AMP Capital Property Nominees Ltd ('Westfield'),[258] and the criticisms of Henjo advanced by Scruby and Heydon, as previously referred to.
12. It is necessary to set out in detail the disclaimers relied upon in this case; to review the authorities relevant to the operation and effect of disclaimers, no reliance representations and exclusion provisions; and, in that context, to then address the issues raised by the Viterra Parties in their grounds of appeal 1 and 2 and the issue raised by Cargill in contention 1.
    • (6) The disclaimers in this case

13. The first document agreed between the parties that contained relevant disclaimers was the Confidentiality Deed. It was provided to Cargill, Inc by Merrill Lynch, on behalf of Glencore, on 1 May 2013. The Confidentiality Deed was executed by Cargill, Inc on 13 May 2013; and a further version was executed by Glencore on 22 May 2013 and by Cargill, Inc on 27 May 2013.[259] The recitals recorded that Cargill, Inc 'wishes to obtain access to information' for the purpose of its 'evaluation of whether to acquire' Glencore's malt business, and that Glencore had 'agreed to disclose ... certain information' to Cargill, Inc 'on the terms and conditions set out' in the Confidentiality Deed.
14. The Confidentiality Deed contained the following relevant disclaimers:

8 No reliance

8.1 Acknowledgment

The Recipient [Cargill, Inc] acknowledges and agrees that:

(a) most or all of the Confidential Information consists of data prepared in the ordinary course of business and has not been prepared with the intention that the Recipient should rely on it in connection with the Approved Purpose or the Transaction;

(b) except where expressly identified as such, the Confidential Information has not been audited or independently verified;

(c) neither the Discloser [Glencore] nor its Representatives gives any assurances as to the degree of care or diligence used in compiling or preparing the Confidential Information;

(d) the Discloser or its Representatives may not have provided all information that may be required by the Recipient to achieve the Approved Purpose or the Transaction;

(e) nothing contained in the Confidential Information constitutes an offer, recommendation or invitation by the Discloser or its Representatives to any person;

(f) this deed does not grant to the Recipient or its Representatives any licence or other right in relation to the Confidential Information except as expressly provided in this deed; and

(g) certain Confidential Information may have been disclosed with the consent of third parties and may be subject to conditions imposed by those parties.

8.2 No representations or warranties given

The Recipient acknowledges that neither the Discloser nor any of its Representatives:

(a) has made or makes any representation or warranty, express or implied, as to the accuracy, content, legality or completeness of any Confidential Information;

(b) is under any obligation:

(i) to notify the Recipient or its Representatives; or

(ii) to provide any further information to the Recipient or its Representatives,

if the Discloser or its Representatives become aware of any inaccuracy, incompleteness or change in the Confidential Information.

8.3 Recipient to make its own assessment

The Recipient agrees and acknowledges that:

(a) it must make its own assessment of all Confidential Information and satisfy itself as to the accuracy, content, legality and completeness of that information;

(b) any forecasts or estimates in the Confidential Information may not prove to be correct or be achieved; and

(c) it will rely solely on its own investigations and analysis in evaluating the Transaction.

...

10 Liability

10.1 Disclaimer by Discloser

Subject to clause 10.4 ('Representations') and any law to the contrary, and to the maximum extent permitted by law, the Discloser and its Representatives disclaim all liability for any Loss suffered by any person using, disclosing or acting on any Confidential Information and whether the Loss arises in relation to, in connection with or as a result of any negligence, default or lack of care on the part of the Discloser or any of its Representatives, or from any misrepresentation or any other cause.

10.2 No legal proceedings to be brought by Recipient

Subject to clause 10.4 ('Representations') and absent fraud or wilful misconduct by the Discloser, the Recipient agrees to:

(a) not bring or institute any legal proceedings against the Discloser or its Representatives in respect of any Confidential Information; and

(b) procure that its Representatives do not bring or institute any proceedings of the kind specified in clause 10.2(a) above.

10.3 Release by Recipient

Subject to clause 10.4 ('Representations') the Recipient unconditionally and irrevocably releases the Discloser and its Representatives from any liability which (notwithstanding the disclaimer in clause 10.1 ('Disclaimer by Discloser')) may arise, whether directly or indirectly, in relation to, in connection with, or as a result of the provision of the Confidential Information or any reliance placed by any person on any Confidential Information or the non disclosure of any Information, including any liability resulting from any negligence, default or lack of care on the part of the Discloser or any of its Representatives or from any misrepresentation or any other cause.

10.4 Representations

The Discloser and its Representatives shall be responsible for representations or obligations set forth in separate written agreements between the parties in accordance with the terms of those written agreements.

1. The term 'Confidential Information' was defined in the Confidentiality Deed widely, so as to mean all information disclosed in connection with the proposed acquisition of the malt business, including information disclosed orally, in writing or in electronic or machine readable form, disclosed or created before, on or after the date of the deed, and disclosed as a result of discussions between the parties. The term 'Representatives' was defined so as to include related companies.
2. Clause 2.1 of the Confidentiality Deed provided that Cargill, Inc gave the undertakings on behalf of itself and its Representatives. Clause 3.3 required Cargill, Inc to procure its Representatives not to do anything which would constitute a breach of the deed.

(b) The Phase 1 Process Letter and the Information Memorandum

3. On 14 May 2013 - that is, after Cargill, Inc had executed the first version of the Confidentiality Deed - Merrill Lynch sent the Phase 1 Process Letter to Cargill, Inc. The Phase 1 Process Letter stated that Cargill, Inc was required to make and rely upon its own investigations and satisfy itself in relation to all aspects of the proposed transaction, and that the contents of the letter and all discussions, communications and information relating to the proposed transaction were confidential information and subject to the terms and conditions of the Confidentiality Deed.
4. The Phase 1 Letter also enclosed a copy of a document entitled 'Information Memorandum'. The Information Memorandum contained statements relied upon by Cargill in relation to its allegation that the Financial and Operational Performance Representations were made.
5. The Information Memorandum also contained a page headed 'Legal Disclaimer'. The heading aptly described the page's contents. Relevantly, the document included the following:

No Responsibility for Contents of Document

To the maximum extent permitted by law, no representation, warranty or undertaking, express or implied, is made and, to the maximum extent permitted by law, no responsibility or liability is accepted by the Discloser [Glencore] or any other person as to the adequacy, accuracy, correctness, completeness or reasonableness of this document, including any statements or information provided by third parties and reproduced or referred to in this document, or any other written or oral communications transmitted or made available to a Recipient. To the maximum extent permitted by law, no responsibility for any errors in or omissions from this document, whether arising out of negligence or otherwise, is accepted. The information contained in this document has not been independently verified. This document contains various opinions, estimates, forward-looking statements and forecasts which are based upon assumptions which may not prove to be correct or appropriate. No representation or warranty as to the fairness, adequacy, accuracy, validity, certainty or completeness of any of the assumptions, the information, opinions, estimates, forward-looking statements or forecasts contained in this document or any written or oral information made available to any interested party[260] made by the Discloser and no liability whatsoever is accepted by any such Discloser in relation to any such information, opinion, estimates or forecasts. The information or opinions contained in this document or any written or oral information made available to any interested party does not purport to be comprehensive and has not been independently verified. The Discloser is under no obligation to correct any errors or omissions in connection with the information contained in this document.

Acknowledgments

Each Recipient acknowledges that no person has been authorized to give any information concerning the business the subject of the Proposed Transaction or the Proposed Transaction itself other than as contained in this document and, if given, that information cannot be relied upon as having been authorized by the Discloser.

Accuracy of Financial Information

In particular, no representation or warranty is given as to the accuracy, completeness, likelihood of achievement or reasonableness of any forecasts, projections or forward-looking statements contained in the document. Forecasts, projections and forward-looking statements are by their nature subject to significant uncertainties and contingencies. You should make your own independent assessment of the information and seek your own independent professional advice in relation to the information and any action taken on the basis of the information.

Date of this Document

The information contained in this document has been prepared as at 1 May 2013. The Discloser makes no representation or warranty that the information contained in this document remains correct at, or at any time after, that date. The Discloser is under no obligation to update this document or to correct any inaccuracies contained in this document at any time after that date.

(c) The Data Room Protocol

1. As part of the sale process, Glencore and its representatives prepared a 'data room', which was a virtual space by which Cargill could access documents relevant to the sale. It was given such access on or about 20 June 2013. Access to the Data Room was governed by the 'Data Room Protocol', which included the following statements under the heading 'Disclaimer and Liability':

8.1 Disclaimer

To the maximum extent permitted by law, [Glencore] and each of their respective related bodies corporate and associated entities and each of their respective officers, employees, associates, agents, contractors and advisers (together 'associates'):

(a) do not make any representation, guarantee or warranty, express or implied, of any Material or any other information (including by [presumably intended to be 'but'] not limited to any forecasts, projections or forward-looking statements made available to the Invitee or any Authorised Users or to any person as part of or in connection with the Proposed Transaction) made available in whatever form to the Invitee or the Authorised Users during or in connection with the Proposed Transaction; ...

...

8.3 Acknowledgment

The Invitee and each Authorised User acknowledge and agree that they will rely only on their own independent assessment of any information, statements or representations contained in the Material and they do not rely on any representation, guarantee or warranty (express or implied) by [Glencore] or any of their respective associates.

1. 'Material' was widely defined in the Data Room Protocol as including all information made available in the data room or otherwise in connection with the due diligence process.
2. Schedule 2 of the Data Room Protocol set out data room procedures. It included the following provision:

Nothing obliges [Glencore] to disclose any particular information to an Invitee or Authorised User ...

1. Schedule 3 of the Protocol set out the question and answer process. It contained the following provisions:

[Glencore] will determine in its absolute discretion whether or not to answer any question. ...

[Glencore] reserves its right ... not to respond to any question or request for documentation [and] if a response is given, to determine the nature and extent of the response ... .

(d) The Management Presentation

1. On 26 June 2013 a management presentation took place between representatives of Cargill and representatives of the Viterra Parties. The Management Presentation included both written and oral information. The written information included legal disclaimers in substantially identical terms as those included in the Information Memorandum.

2. The Acquisition Agreement also contained provisions relied upon by the Viterra Parties in this context, which were referred to together as the 'Acquisition Agreement Liability Terms'. Of particular relevance is cl 13.4. By that provision Cargill Australia relevantly acknowledged and agreed that:

(a) In entering into the [agreement] and in proceeding to Completion, [Cargill Australia] does not rely on any statement, representation, warranty, condition, promise, forecast or other conduct which may have been made by or on behalf of [Viterra], except the Warranties;

...

(d) Irrespective of whether or not the Due Diligence was as full or exhaustive as [Cargill Australia] would have wished, it has nevertheless independently and without the benefit of any inducement, representations or warranty (other than the Warranties) from [Viterra] or any Representatives of [Viterra], determined to enter into the [agreement].

(f) The categories of disclaimers

1. The Sale Process Disclaimers and cl 13.4 of the Acquisition Agreement contained provisions which may be characterised as follows:
   • No representation clauses: provisions whereby the Viterra Parties asserted that, to the maximum extent permitted by law, no representation was made and no responsibility was accepted as to the accuracy and completeness of information provided. The 'Legal Disclaimer' pages of the Information Memorandum and the Management Presentation, cl 10.1 of the Confidentiality Deed, and cl 8.1(a) of the Data Room Protocol fall within this category.
   • No reliance clauses: Provisions whereby Cargill acknowledged, and agreed to, the disclaimers, and agreed not to rely upon the information provided, but rather to rely upon their own investigations. These provisions might be categorised as 'no reliance clauses'. The provisions of cl 8 of the Confidentiality Deed, the 'Legal Disclaimer' pages insofar as acceptance of the documents of which they form a part constituted agreement to the disclaimers, and cl 13.4 of the Acquisition Agreement fall within this category. It should be noted that the provisions of cl 13.4 were referred to in the primary judgment, and in the submissions on this application, by the defined term 'No Reliance Representations'.
   • Exclusion clauses: Provisions purporting to exclude or release legal liability in relation to the information provided. The agreement not to bring legal proceedings in cl 10.2 of the Confidentiality Deed and the release in cl 10.3 of the Confidentiality Deed are provisions of this kind. Clause 15.4(b) of the Acquisition Agreement (which provided that Viterra was not liable to Cargill Australia for any claim if Cargill, Inc ceased to control Joe White) may also be seen as falling within this category. Similarly, provisions that limit legal liability by placing a cap on the damages that may be recovered (such as cl 15.8 of the Acquisition Agreement) may be seen as falling within this category.
2. This categorisation is not suggested to be rigid or exhaustive, and some clauses may fall into more than one category.
3. In the context of misleading or deceptive conduct, there is a relevant distinction between:

(a) provisions that seek to 'negate an integer' of liability,[261] by resulting in a conclusion that representations were not made, or were not misleading, or were not relied upon (ie no reliance clauses and no representation clauses); and > > (b) provisions that seek to absolve a party from liability for misleading or deceptive conduct which has occurred, or may occur, and for which they would otherwise be liable (ie exclusion clauses).

• (7) Review of the authorities on disclaimers

4. In order to understand the operation and effect of the disclaimers in this case, it is necessary to canvass in some detail the relevant authorities concerning such provisions. We shall substantially confine our analysis to judgments at the appellate level.

(a) Disclaimers in the context of fraud or deceit

5. It is convenient to begin with the authorities on fraud and deceit. The appropriate starting point is the House of Lords' decision in S Pearson & Son Ltd v Dublin Corporation ('Pearson').[262]
6. In Pearson, a building contractor made a claim in deceit against a public authority based upon representations made by the authority's engineers (as agent for the authority) as to the existence of a wall. There was evidence sufficient to found a conclusion of fraud, but the case was removed from the jury because of provisions in the contract.
7. The contract relevantly provided that the contractor should satisfy itself as to the dimensions, levels and nature of all existing works and other things connected with the contract works; that the public authority did not hold itself responsible for the accuracy of the information as to the sections or foundations of existing walls and works; and that no charges for extra work or otherwise would be allowed in consequence of incorrect information or inaccuracies in the drawings or specifications. The representations made by the engineers which were alleged to be fraudulent concerned matters falling within these contractual provisions.
8. The trial judge removed the case from the jury on the ground that the contractor was bound by the contractual provisions. The King's Bench Division reversed this decision finding that there was a question of fact to go to the jury. The Court of Appeal then reversed the King's Bench Division and restored the trial judge's decision. The matter then went to the House of Lords.
9. Eight judges heard the appeal in the House of Lords. Five of them, Lord Loreburn LC, the Earl of Halsbury, Lord Ashbourne, Lord James of Hereford, and Lord Atkinson gave reasons for reversing the decision of the Court of Appeal and restoring the judgment of the King's Bench Division. Three of the judges, Lord Macnaghten, Lord Robertson, and Lord Collins, simply concurred in that conclusion. Given that the matter was to be remitted for a new trial, the judges who gave reasons each said that they intended to say no more than was necessary.
10. The Viterra Parties submitted that, properly understood, the ratio of Pearson was that the contract in question, truly construed, contemplated honesty on both sides and protected only against honest mistakes.[263] So much may be accepted. Nonetheless, various members of the House of Lords made remarks about the effectiveness of clauses that purported to do more than protect against honest mistakes. In relation to that question the opinions expressed were as follows.
11. Lord Loreburn LC said:

Now it seems clear that no one can escape liability for his own fraudulent statements by inserting in a contract a clause that the other party shall not rely upon them. I will not say that a man himself innocent may not under any circumstances, however peculiar, guard himself by apt and express clauses from liability for the fraud of his own agents. Its suffices to say that in my opinion the clauses before us do not admit of such a construction. They contemplate honesty on both sides and protect only against honest mistakes.[264]

The action is based on the allegation of fraud, and no subtilty of language, no craft or machinery in the form of contract, can estop a person who complains that he has been defrauded from having that question of fact submitted to a jury.[265]

[W]ith much deference to the opinions of the Chief Baron and the learned judges of the Court of Appeal, I cannot think that in face of the evidence in the case this clause 43 should be regarded as establishing a defence. Such a clause might in some cases be part of a fraud, and might advance and disguise a fraud, and I cannot think that on the facts and circumstances of this case it can have such a wide and perilous application as was contended for. Such a clause may be appropriate and fairly applied to errors, inaccuracies, and mistakes, but not to cases like the present.[266]

1. Lord James of Hereford observed that clauses of this kind could be read as conferring advantage upon the 'designers of fraud' and that contracting parties assume they are dealing with 'honest and honourable men'.[267] He continued:

Such a clause would be good protection against any mistake or miscalculation, but fraud vitiates every contract and every clause in it. As a general principle I incline to the view that an express term that fraud shall not vitiate a contract would be bad in law, but it is unnecessary in this case to determine whether special circumstances may not create an exception to that rule.[268]

1. Finally, Lord Atkinson also observed that clauses of this kind are 'part of the fraud'.[269] He observed that the only ground upon which the removal of the case from the jury could be justified was the terms of the contract. He then said:

As at present advised I am inclined to think, on the authority of [cases cited], that such a contract would be illegal in point of law. And, with the most profound respect for the Chief Baron, I do not think that the articles of the contract relied upon can, on their true construction, be held to have had fraud, whether conscious or unconscious, within their purview or contemplation, or to apply at all to such a case of fraud as the present is alleged to be. They were, I think, intended to apply, and do apply, to inaccuracies, errors, and mistakes, or matters of that sort, but not to fraud, whether of principal or agent or of both combined.[270]

1. The opinions of the House of Lords in Pearson reveal a unanimous judicial conclusion that the contractual provisions in issue did not absolve the party from liability for the fraud of its agent, but the reasoning of the various Law Lords differed.

(a) The opinions of the Lord Chancellor and the Earl of Halsbury founded that conclusion (at least in part) upon a general principle unrelated to the specific terms of the contract. The Lord Chancellor would only admit of the possibility that an express clause might protect an innocent principal against the fraud of their agent, but not against their own fraud. The Earl of Halsbury did not seem to even admit that possibility. > > (b) Lord Ashbourne, Lord James and Lord Atkinson focused upon the issue of construction. They held that contractual provisions of this kind, notwithstanding the generality of their wording, did not extend to cover liability for fraud. Their opinions do not, however, support a conclusion that provisions which would cover liability for a party's own fraud might be devised. Lord Ashbourne considered that such provisions would themselves be 'part of the fraud', and Lord James and Lord Atkinson were 'inclined' to think that such a contract would be illegal or bad in law.

2. The opinions in Pearson were reconsidered by the House of Lords in HIH Casualty & General Insurance Ltd v Chase Manhattan Bank ('HIH v Chase').[271] The Viterra Parties submitted that this case is authority for the proposition that a contracting party cannot exclude liability for their own fraud in inducing the making of the contract - and for no more than that. It did not, they submitted, deal with a disclaimer contained in a contract that was not, itself, induced by fraud. We accept that that was the context in which HIH v Chase was decided: that is, it concerned a clause in a contract that had been induced by fraud. Again, however, several of the opinions contain statements of more general application.
3. HIH v Chase concerned an unusual type of insurance policy whereby a financing bank insured the risk of loss on advances for the production of films. The policy was arranged by an insurance broker acting as agent for the bank. Thus, like Pearson, it concerned the question whether a contractual provision could exclude liability for the fraud of an agent, not the party's own fraud. The policy contained a section addressing the insured's duty of disclosure, referred to as the 'truth of statement' clause. Relevantly for present purposes, that section contained:

(a) clause 7, which stated that the insured bank 'shall have no liability of any nature to the insurers for any information provided by any other parties'; and > > (b) clause 8, which stated that 'any such information provided by or nondisclosure by other parties ... shall not be a ground or grounds for avoidance of the insurers' obligations'.

4. Preliminary issues were argued concerning the effect of these provisions. One issue was whether the provisions were effective to preclude the insurer from avoiding the policy by relying upon fraudulent misrepresentation or non-disclosure by the insured's agent. The insurer relied upon the decision in Pearson in contending that cls 7 and 8 were not effective in preventing the insurer from avoiding liability. The relevant transactions were between sophisticated commercial parties and the clauses were said to be the product of careful legal drafting.[272]
5. The House of Lords held that the clauses were not effective to preclude the insurer from avoiding liability on the basis of fraudulent misrepresentation or non-disclosure by the insured's agent.
6. Lord Bingham, with whom Lord Steyn agreed,[273] observed that the language of cl 7, and in particular the term 'no liability of any nature', if read literally, would cover liability for fraudulent misrepresentation or deceit.[274] He said that neither the judge at first instance, nor the Court of Appeal, had accepted that that was so, and he said that he agreed with that conclusion because 'fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all'.[275] He continued:

Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal. ... It is clear that the law, on public policy grounds, does not permit a contracting party to exclude liability for his own fraud in inducing the making of the contract.[276]

1. Lord Bingham then went on to consider the question of whether this principle applied in relation to fraud perpetrated by an agent of an otherwise innocent principal. He referred to the fact that the leading authority on the point was Pearson and that the ratio of that decision was 'not easy to discern'.[277] He said that it was not necessary to finally resolve the issue in this case for the following reason:

For it is in my opinion plain beyond argument that if a party to a written contract seeks to exclude the ordinary consequences of fraudulent or dishonest misrepresentation or deceit by his agent, acting as such, inducing the making of the contract, such intention must be expressed in clear and unmistakable terms on the face of the contract. The decision of the House in the Pearson case does at least make plain that general language will not be construed to relieve a principal of liability for the fraud of an agent[.] [Here, Lord Bingham cited the judgments of Lord Loreburn LC, Lord Ashbourne and Lord Atkinson.] General words, however comprehensive the legal analyst might find them to be, will not serve: the language used must be such as will alert a commercial party to the extraordinary bargain he is invited to make.[278]

1. Lord Bingham concluded that the words used fell 'well short' of this standard.[279]
2. Lord Hoffmann also emphasised that fraud is a thing apart. In relation to the construction of contractual clauses, he said this:

[F]raud is quite different from negligence: 'Parties contract with one another in the expectation of honest dealing', particularly in an insurance context. I think that in the absence of words which expressly refer to dishonesty, it goes without saying that underlying the contractual arrangements of the parties there will be a common assumption that the persons involved will behave honestly.[280]

Your Lordships were not referred to any case in which the language of the contract has been held to bar a remedy for inducing fraud, whether by the contracting party or his agent. I do not think that this contract does so either.[281]

1. As to the position apart from the issue of construction, Lord Hoffmann said:

My view that the truth of statement clause, upon its true construction, does not exclude a remedy for fraudulent misrepresentation or non-disclosure by [the broker as agent] makes it unnecessary for me to decide whether there is a rule of law, based on public policy, which in any event would prevent it from doing so. There is no doubt that a party cannot contract that he shall not be liable for his own fraud. But whether he can contract that he should not be liable for his agent's fraud is less clear.[282]

1. His Lordship then addressed the question of exclusion of liability for an agent's fraud by reference to Pearson, quoting with approval the analysis of the Earl of Halsbury and of Lord Loreburn LC[283] (although he accepted that the opinions of the other Law Lords were 'less clear'[284]). He concluded by saying that the absence of any authority revealing the existence of an effective clause excluding liability for an agent's fraud suggests that 'it is extraordinarily unlikely that parties to a contract will agree a term which excludes liability for fraud with sufficient clarity to raise squarely the question of whether it should be lawful to do so',[285] thus returning to the question of construction.
2. Lord Hobhouse similarly held that cls 7 and 8 ought not be construed as covering fraudulent misrepresentations 'without express words which necessitate giving that meaning to them or clearly disclose such an intention'.[286] However, he went on to say that the same conclusion results from the application of 'more general principles'. He said that a contract which had been procured by material fraud was one to which the party deceived had not given a true consent. He observed that if a party elected with knowledge of the fraud to affirm the contract then they would be bound by it. Lord Hobhouse said that the public policy considerations applicable where a party seeks to absolve themselves of liability for their own fraud would also apply to the question of whether a principal should be permitted to take advantage of their agent's fraud.[287]
3. Lord Scott of Foscote dissented. In substance he concluded that the clauses were effective to preclude the insurer from avoiding liability on the basis of the agent's fraud. Lord Scott said that there were two relevant lines of argument. The first line proposed a rule of public policy. The other line was that of construction. The rule of public policy was suggested to be that a party cannot be allowed to benefit from their own fraud or from the fraud of their alter ego.[288]
4. In relation to the rule of public policy, Lord Scott said:

I would, for my part, be content to accept the need for and the existence of such a rule. If the truth of statement clause in the present case had contained a phrase expressed to exonerate [the bank, as principal] from any liability for fraudulent representations made by itself, [the bank] could not have relied on the phrase to bar an action based on its own fraudulent misrepresentation. I can, however, for my part see no reason of public policy why a party should not exclude his contractual liability for fraudulent misrepresentation by his agent. ... Public policy would, in my view, come into play only where the agent's principal knew of or was otherwise complicit in the fraud or where the agent was the alter ego of the principal, as an executive director may be of his company.[289]

1. Dealing with the question of construction, Lord Scott considered that if the public policy consideration were not applicable then there was no reason why provisions such as cls 7 and 8 should not be given their normal meaning which, in his opinion, would include fraud.[290]
2. Thus, notwithstanding Lord Scott's dissent on the questions of fraud by an agent and on the issue of construction, and the uncertainties expressed as to the extension of a public policy rule to fraud by an agent, all the Law Lords agreed that a contractual provision could not preclude liability for a party's own fraud.
3. The analysis in HIH v Chase was adopted by the Full Court of the Federal Court (Allsop CJ, Lee and Derrington JJ) in Onley v Catlin Syndicate Ltd ('Onley').[291] In that case the Full Court was determining whether an insurer was required to meet the costs of certain proceedings under the terms of the policy notwithstanding that the insured had breached its obligation to disclose criminal dishonest conduct.
4. After reviewing the judgments in HIH v Chase at some length, the Full Court said this:

The two principles which emerge from the above case are, first, public policy prevents contracting parties excluding liability for their own fraud, and, secondly, clear and unmistakable language is required in order to exclude a principal's liability for the fraud of its agent.[292]

1. The Full Court said that the first principle was determinative of the matter before them, because the construction advanced by the insureds would mean that they were relieved of the consequences of their own fraud. That construction accordingly could not be accepted. The Court went on to observe that the same result would follow if the fraudulent party was an agent of the insured because, in the particular case, there was an absence of the 'clear or unmistakable words' which 'might eschew the consequence of the agent's fraud'. The Full Court said:

There are no words which might alert the insurer that it was entering into an extraordinary bargain, being one it would be required to perform despite being fraudulently induced to enter into it. No exculpatory words expressly referring to 'dishonesty' or 'fraud' by the agent are used.[293]

1. The authorities thus reveal the following propositions, insofar as fraud and deceit are concerned.

(a) A party may contract to exclude liability for their agent's fraud, but clear and unmistakable words are required, sufficient to alert the other party to the extraordinary bargain into which they are entering. > > (b) In contrast, a term in a contract that is induced by fraud cannot be relied upon by a party to exclude liability for their own fraud regardless of the language used.

2. Further, in our opinion the broader principle underlying the second proposition above is that, as a matter of public policy, a party cannot contract that they shall not be liable for their own fraud (to use Lord Hoffman's distillation of the principle).

(b) Disclaimers in the context of misleading or deceptive conduct

1. Turning then to relevant Australian cases on misleading or deceptive conduct, an appropriate starting point is the decision of Sweeney J in PJ Berry Estates Pty Ltd v Mangalore Homestead Pty Ltd ('PJ Berry'), a case relied upon to some extent by the Viterra Parties. In that case PJ Berry Estates Pty Ltd ('PJ Berry') had purchased a business from Mangalore Homestead Pty Ltd ('Mangalore'). The purchase agreement contained a clause to the effect that the business was sold 'without any warranties or conditions other than those specifically contained herein'. Sweeney J found that Mangalore had engaged in conduct that was misleading or deceptive (without considering the effect of the disclaimer). He further held that 'the necessary nexus' had been established between the contravention of the Trade Practices Act ('TPA') and PJ Berry's execution of the agreement and the payment of monies under it (again, without considering the effect of the disclaimer). He then turned to consider the disclaimer, and said as follows:

In my opinion, this clause cannot operate so as to oust the effect of the Act, to affect the nexus between the contravention of the Act and the execution of the agreement and the payment of moneys under it, or to deprive the applicant of its remedies under the Act.[294]

His Honour cited no authorities in support of these propositions.

1. We note that, before us, the Viterra Parties emphasised the second statement in the above passage - that the disclaimer did not affect the nexus between contravention and the execution of the agreement. But in our view the first and third propositions are apt to reflect the proposition that a party cannot 'contract out of' the TPA, or exclude remedies otherwise available under the Act. We also observe that Sweeney J appears to have given the disclaimer no evidentiary role to play, considering it only after he had made the relevant factual findings as to misleading or deceptive conduct and reliance, and stating that the clause 'cannot ... affect the nexus' between the conduct and the purchaser's execution of the agreement. That is apparently inconsistent with later authorities in this area, as we discuss below.
2. The next relevant case is Petera, a judgment of Wilcox J.[295] Petera concerned a claim for both misleading or deceptive conduct and deceit, in relation to the sale of a restaurant. The proprietors were keeping two sets of books. The takings as represented did not align with the takings recorded in books maintained for the purpose of preparation of tax returns, but they did accord with the other set of books. It was held that the other set of books accurately recorded the true takings. The claim for misleading or deceptive conduct, and deceit, made by a purchaser of the restaurant accordingly failed.
3. The contract under which the restaurant had been purchased included a provision concerning reliance, in which the purchasers 'acknowledge[d]' that they had not relied upon any relevant representation. Wilcox J concluded that that provision would not have enabled the vendors to escape liability. Citing Pearson (and two Western Australian first instance decisions), Wilcox J stated:

It is clear law that an exclusion clause ... does not operate to defeat an action in deceit in relation to conduct antecedent to the contract.[296]

1. Wilcox J observed that 'in principle' the same approach must apply to s 52 of the TPA (the equivalent provision to what is now s 18 of the Australian Consumer Law). He said that Lord Loreburn LC had pointed out in Pearson that such clauses 'contemplate honesty on both sides and protect only against honest mistakes', and that conduct falling within s 52 'will often be conduct actionable in deceit'. In support of that proposition, he cited various authorities referring to the close relationship between actions under s 52 and actions for deceit in the context of damages,[297] and observed as follows:

To permit such a clause to defeat such a claim would be to accept the possibility that a vendor might exacerbate his deception, as by actively misleading a purchaser as to the existence or nature of such an exclusion, and thereby ensure that he would escape liability.[298]

1. A majority of the Full Court of the Federal Court endorsed Wilcox J's approach in Petera in Clark Equipment.[299] Sheppard J said this:

Parties may agree that statements and representations made antecedently to their entering into a contract are not to form the basis of any remedy in the event of there being a subsequent disagreement. Except in cases of fraud, the common law will give effect to their contract. But the remedy conferred by s 52 of the Trade Practices Act will not be lost, whatever the parties may provide in their agreement. If a vendor of goods has engaged in misleading or deceptive conduct, the law makes him accountable for loss and damage suffered as a result of his unlawful conduct. That conduct will usually have been committed, as in this case, prior to the signing of any contract. If, as a result of the conduct, a person is induced to enter into a contract and suffers loss, an action to recover it lies. The terms of the contract are irrelevant.[300]

1. However, his Honour accepted that the particular clause in question there (a form of no reliance representation) did have an 'evidentiary' role to play, that is, it could be taken into account in determining whether the claimant had in fact entered into the relevant contract relying upon the representations complained of.[301]

1. It is convenient to turn now to Henjo, which was also an appeal to the Full Court of the Federal Court from a first instance decision of Wilcox J. In that case a vendor sold a restaurant that had been operating in a way that was non-compliant with applicable regulations, but had represented that it was compliant. The contract of sale contained:

(a) a no reliance clause, in which the purchaser acknowledged that it had not relied upon any statement, representation or warranty in relation to certain specified matters, and that the only statements, representations and warranties on behalf of the vendor were those set out in the contract (special condition 6); and > > (b) an entire agreement clause (special condition 7).

2. At first instance Wilcox J said that 'there is now abundant authority in this court that [such conditions] do not operate to defeat a claim under s 52',[302] citing six cases in support of that proposition.[303] His Honour said that the reason why that is so was that given by Sweeney J in PJ Berry, and further observed as follows:

If in fact the misleading conduct of the respondent has induced an applicant to enter into an agreement, that inducement is not negated because, in the agreement itself, the applicant says to the contrary. Of course, the fact that the applicant so says may bear upon the question whether he or she should be believed in asserting that the misleading conduct was an inducement; although in the case of a printed exclusion clause this may be of little moment. And, once it is found as a fact that the conduct induced the transaction, the Act itself gives a remedy.[304]

1. On the appeal, Lockhart J (with whom Burchett J and Foster J agreed), addressed the issue of the effect of the contractual provisions as follows:

I turn now to the two special conditions, 6 and 7. The trial judge considered the effect of special condition 6 and 7 of the contract for sale and found that they did not operate to defeat a claim under s 52, whatever effect they may have in the law of contract, because an exclusion clause of that kind cannot oust the effect of the Act or deprive an applicant of remedies under it. If in fact there was misleading conduct by Henjo which induced Collins Marrickville to enter into the contract, that inducement was not negated because in the agreement itself the parties may have said to the contrary.[305]

1. Lockhart J considered the terms of the special conditions and concluded that, as a matter of construction, the claims made did not fall within their ambit.[306]
2. There then followed two key paragraphs that it is appropriate to set out in full:

Irrespective of the construction of these two special conditions it does not matter ultimately whether the impugned conduct with which this case is concerned falls literally within them or not. Section 52 is a section in the consumer protection provisions of an Act concerned to protect the public from misleading or deceptive conduct and unfair trade practices which may result in contravention of the Act. It has been held that exclusion clauses, of which special conditions 6 and 7 are examples, cannot operate to defeat claims under s 52. It may be, as the judgment of Sweeney J in P J Berry Estates Pty Ltd v Mangalore Homestead Pty Ltd suggests, that such exclusion clauses will generally be ineffective because they cannot break the nexus between the conduct in contravention of s 52 and the making of the agreement in issue. Where the conduct of the defendant is alleged to be fraudulent in character, then an exclusion clause will be no more effective to defeat the action than it would be effective if the action were brought in the tort of deceit in relation to conduct antecedent to the contract.

There are wider objections to allowing effect to such clauses. Otherwise the operation of the Act, a public policy statute, could be ousted by private agreement. Parliament passed the Act to stamp out unfair or improper conduct in trade or in commerce; it would be contrary to public policy for special conditions such as those with which this contract was concerned to deny or prohibit a statutory remedy for offending conduct under the Act. There are various judgments of judges of this Court where this approach has been adopted and they are collected in the judgment of the trial judge, so I need not repeat them.[307]

1. It is apparent that the Full Court of the Federal Court in Henjo articulated two distinct bases upon which they concluded that, apart from the construction issue, the clauses in that case did not have the effect of absolving a party from liability for misleading or deceptive conduct. The first was the adoption of the reasoning of Wilcox J at first instance. At least in part this appears to have been because the clauses were in a contract the claimant was misled into entering. Then, a separate 'wider' basis, founded on public policy, was set out. We discuss further below whether that wider basis is properly regarded as part of the ratio decidendi of the case, or whether it was by way of obiter dicta.

1. Henjo - including the wider basis identified above - has since been followed in several cases.
2. In Netaf Pty Ltd v Bikane Pty Ltd ('Netaf'), Wilcox J, as a member of the Full Court of the Federal Court, with whom on this issue Sheppard and Pincus JJ agreed, endorsed the analyses in both Clark Equipment and Henjo.[308]
3. The contract in issue in Netaf contained a no reliance clause. The appellants did not argue that that clause precluded a claim under s 52. Citing Clark Equipment and Henjo, Wilcox J said that any such contention would be 'untenable'. The appellants did argue, and the Court accepted, that the no reliance provision was relevant to the question of whether a representation was made and whether the claimant should be believed in asserting that the misleading conduct was relied upon.[309] That is, the Court accepted that a no reliance clause had an evidentiary role to play in determining whether the s 52 claim was made out.
4. In Lezam Pty Ltd v Seabridge Australia Pty Ltd ('Lezam'), the Full Court of the Federal Court dealt with a claim for misleading or deceptive conduct in relation to a lease which contained a disclaimer. Sheppard J (with whom Hill J agreed) took the disclaimer into account on the question of whether, considering all of the conduct as a whole, the disclaimer led to a conclusion that the claimant had not relied upon the representations made. He rejected that contention in the particular circumstances.[310] This approach represented what had become, by this point, the conventional approach to disclaimers.
5. The third member of the bench in Lezam was Burchett J. He reached the same conclusion. In doing so he cited with approval the decisions in Clark Equipment, Henjo, and an earlier decision of his own in Benlist Pty Ltd v Olivetti Australia Pty Ltd ('Benlist').[311] Burchett J said this:

Once misrepresentation has been shown, the statute prevails over a formal disclaimer. If such a clause is to be effective, it must be by enabling the conduct as a whole (including in it the provision to the complainant of the document containing the clause) to be seen as not misleading. In the present case, the misleading conduct complained of was not rendered blameless by the words in small print at the bottom of a page otherwise reiterating the misrepresentation.[312]

1. The next decision to which reference should be made is another decision of the Full Court of the Federal Court in IOOF Australia Trustees (NSW) Ltd v Tantipech ('IOOF').[313]
2. In that case the complainant, Mr Tantipech, had entered into a lease for retail premises in a shopping centre. He was told by the agent that the shopping centre was 'about 80% pre-leased or committed'. That statement was not accurate. Mr Tantipech executed both a lease and a separate deed of acknowledgment. The lease contained a no reliance provision. The separate deed made provision for Mr Tantipech, as the prospective lessee, to write out representations relied upon, which he had done without referring to the 80% representation. The deed also set out a list of representations requiring the prospective lessee to tick 'yes' or 'no' to indicate what representations had been made and relied upon. Mr Tantipech had ticked yes and no in relation to various representations, and relevantly had ticked 'no' in relation to a statement concerning the number or proportion of leases or proposed leases that had been entered into in relation to the shopping centre. The deed provided that all representations not referred to were 'cancelled', and it also contained an acknowledgment that no other statements had induced or influenced Mr Tantipech to enter into the lease.
3. On appeal the shopping centre owner accepted that the no reliance clause in the lease could not preclude a claim for misleading or deceptive conduct because it was contained in an agreement entered into in reliance upon the misleading or deceptive conduct. However, it argued that that was not so in relation to the deed: there was no evidence that there had been any misleading or deceptive conduct in reliance upon which the separate deed had been executed.[314]
4. The Full Court of the Federal Court (Lee, Nicholson and Sundberg JJ) rejected this contention. The Court observed that if the provisions of the deed had been incorporated into the lease, they would have been ineffective. Given that, it would be 'strange' if the consequence that a representor could not rely upon a provision in a contract entered into in reliance upon misleading or deceptive conduct could be avoided by the 'simple device' of putting the clause in a separate document.[315] The judgment continued:

However, the public policy which lies behind the court's refusal to allow a party to contract out of liability under s 52 of the Act is not exhausted by application to the case of an exculpatory provision which is contained in a document into which the complainant has been induced to enter by a misrepresentation. It must extend to any document which purports to excuse a misrepresentor from liability for contravention of s 52. Statements in the cases that a party in breach of s 52 cannot rely on an exculpatory provision of the very agreement into which the other party has by the breach been induced to enter do not expose the full ambit of the principle, which is based on more general considerations.[316]

1. The Full Court judgment then quoted the passage from Henjo (quoted above) where Lockhart J set out the 'wider objections' to allowing effect to such clauses.[317]
2. The Full Court continued:

Although the clause in question in Henjo was part of the contract the applicant had been induced to enter into by representations in contravention of s 52, the public policy basis for the denial of its effectiveness is applicable to a case such as the present where the exculpatory clause is found in another document.[318]

1. The court also accepted that, whilst an 'exculpatory provision' could not be relied upon as an answer to a claim under s 52, it was relevant to the question of whether the claimant had in fact been induced to enter into the agreement in reliance upon the representations alleged.[319]
2. In Scarborough v Klich ('Scarborough'), the New South Wales Court of Appeal said that a plaintiff who, in deciding to enter into a contract, was acting on a representation made fraudulently is not to be bound by exclusion provisions in the contract, citing Pearson. The Court further said that attempts to exclude liability for breach of s 52 of the TPA will also be unsuccessful, citing and quoting at length from Clark Equipment and Henjo.[320] The Court of Appeal in Queensland similarly endorsed both Clark Equipment and Henjo in JJMMR Pty Ltd v LG International Corp ('JJMMR').[321]
3. Very detailed disclaimers were considered by the Queensland Court of Appeal in Downey v Carlson Hotels Asia Pacific Pty Ltd ('Downey').[322] The material said to contain misrepresentations in that case included a number of disclaimers asserting that no liability would be accepted, that no responsibility would be taken, that no representation or guarantee was given, that investors should make their own inquiries, and that no responsibility was taken for errors or omissions.
4. Keane JA (with whom Williams JA and Atkinson J agreed) considered it to be 'well established' that exclusionary and disclaimer clauses 'cannot override the statutory prohibition against misleading or deceptive conduct or prevent the grant of appropriate statutory relief where loss and damage is, as a matter of fact, caused by a contravention of the statute'.[323] Keane JA went on to say that it has been 'recognised' that disclaimers can be effective if they have the effect of erasing whatever is misleading in the conduct. Keane JA cited Benlist and Henjo in that regard. He then referred to the High Court decision in Butcher (discussed below) as a case where disclaimers had had that effect.[324]
5. In Warwick Entertainment, the Court of Appeal in Western Australia considered another claim for misleading or deceptive conduct in relation to entry into a lease.[325] The lease contained a provision that it constituted the 'entire agreement' between the parties and contained all the representations in relation to the subject matter. It provided that any oral statement or representation made prior to the date of the lease and not contained in the lease was 'void'. In argument before the Court of Appeal, reliance was placed on the High Court decision in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd, where it had been held that where a document is known and intended to effect legal relations, signing it conveys a representation that the person has read and approved of its contents.[326] Steytler P, with whom McClure and Pullen JJA agreed, said:

What was there said is of limited assistance in the circumstances of this case. In the case of a claim arising out of a contravention of s 52 of the Act the relevant question, in this context at least, is always one of reliance or inducement. If, as a result of misleading conduct, a person is induced to enter into a contract and suffers loss, the right to a remedy will subsist whatever the parties may provide in their agreement [Clark Equipment, Petera and another first instance decision of Wilcox J cited]. Exclusion clauses in a contract will only preclude a remedy under the Act when those clauses demonstrate that the party in question did not, in fact, rely on the conduct or where the conduct could not, as a whole, have been seen to be misleading [Lezam and another authority cited].[327]

1. Steytler P went on to observe that at the time the agreement was signed the claimants were unaware that they had been misled. Consequently their cause of action was not precluded by anything contained within the provisions relied upon.[328]
2. In MBF Investments Pty Ltd v Nolan ('MBF Investments'), this Court, in the course of dealing with exclusion clauses in an entirely different context, observed:

Similarly s 52(1) of the Trade Practices Act 1974 (Cth) cannot be circumvented by an exclusion clause, no matter how widely drafted. Once an applicant establishes that the respondent's conduct was misleading or deceptive, and that the applicant suffered loss as a result, no exclusion clause can operate to prevent liability.[329]

Amongst the cases cited in support of that observation was Henjo.

1. In Mark Bain Constructions Pty Ltd v Avis ('Mark Bain'), the Court of Appeal in Queensland considered a claim for misleading or deceptive conduct and the effect of contractual provisions on that claim.[330] The relevant contractual provisions in that case included a no representation clause, an agreement that the buyer had not relied upon any representations other than those contained within the contract, and a provision which read as follows:

The Buyer waives any claim or right inconsistent with this acknowledgment [a reference to the acknowledgment of not relying on any representations] and agrees to indemnify the Seller from any claim brought by the Buyer in breach of this clause and the Seller's costs of resisting any such claim calculated on a solicitor and own client basis.

1. In a judgment by Fraser JA (with whom Chesterman JA and Fryberg J agreed), the Queensland Court of Appeal applied the principles already discussed - whereby such contractual provisions are treated as effective only to the extent that they lead to a characterisation of the conduct as not being misleading, or to a conclusion that the claimant did not rely upon the misleading conduct - to those contractual provisions, including the provision whereby the claimant purportedly waived any claim or right inconsistent with the acknowledgment of non-reliance.
2. Fraser JA set out at some length the trial judge's analysis of the impact of the relevant contractual provisions. The trial judge had held that the provisions could not 'without more, exclude the operation' of the TPA. In that respect the trial judge had cited and relied upon a number of cases, including Henjo and Downey, had quoted the relevant passage from the judgment of Steytler P in Warwick Entertainment, and had cited the judgments in Benlist and Campbell v Backoffice.[331]
3. Fraser JA referred to one case where contractual provisions, amongst other things, had led to a conclusion that the conduct was not misleading,[332] before observing that the case before the court was 'very different'.[333] Fraser JA considered the contractual provisions and in particular, the clause which contained the waiver, and said this:

[The clause] is an acknowledgment and agreement upon three matters. First, 'to the fullest extent permitted by law', all representations made by or on behalf of a seller are as set out in the contract. The effect of the trial judge's findings is that this statement is wrong. That conclusion was plainly open on the evidence. Secondly, it is agreed that the contract constitutes the only agreement. That is not inconsistent with the misleading representations having been made. The third agreement is that the buyer waives any inconsistent claim or right and agrees to indemnify the seller against any such claim brought in breach of the clause. That was legally ineffective for the reasons given by the trial judge, and Mark Bain Constructions did not submit to the contrary. As the trial judge recognised, the real question was whether the clauses actually had the effect of 'erasing whatever is misleading in the conduct'.[334]

Fraser JA cited Warwick Entertainment, Benlist and Downey.

1. The decision in Mark Bain is noteworthy in that the so-called 'Henjo doctrine' was applied not just to no representation clauses and no reliance clauses, but also to a clause which purported to waive any claim and to indemnify the representor against any claim.
2. In JM & PM Holdings Pty Ltd v Snap-On Tools (Australia) Pty Ltd ('JM & PM') the New South Wales Court of Appeal quoted and adopted the relevant analysis in Netaf, including that court's reliance upon Clark Equipment and Henjo.[335]
3. In Secure Parking Pty Ltd v Woollahra Municipal Council,[336] Meagher JA (with whom Beazley P and Ward JA agreed) cited Henjo in rejecting a submission that a requirement to make own enquiries would displace a need to disclose information otherwise arising.[337]
4. The final relevant authority at an intermediate appellate level to which reference should be made is Ireland v WG Riverview Pty Ltd ('Ireland'), a decision of the New South Wales Court of Appeal.[338] The claimants in that case purchased a bull. The pre-sale brochure misstated the bull's sire. A subsequent DNA test revealed the error. The bull was less valuable as a consequence. The pre-sale brochure which contained the erroneous statement of the bull's sire contained a disclaimer which read:

Whilst all due care and attention has been paid to accuracy in the compilation of this catalogue and the information neither the vendors, selling agents or representatives thereof assume any responsibility what so ever [sic] for the correctness, use or interpretation of the information of animals included herein.

1. The principal judgment was delivered by Macfarlan JA. Bell ACJ agreed adding 'supplementary observations in relation to disclaimers and misleading or deceptive conduct'.[339] Barrett AJA agreed with Macfarlan JA and with Bell ACJ's additional observations.[340]
2. Macfarlan JA said that the High Court decisions in Butcher and Campbell v Backoffice established three propositions:

(a) First, when considering whether conduct is misleading or deceptive, it is necessary to consider that conduct from the perspective of a reasonable person in the position of the person complaining. > > (b) Secondly, the conduct of the person alleged to have engaged in misleading or deceptive conduct must be viewed as a whole. > > (c) Thirdly, a disclaimer is part of the conduct that is required to be considered.[341]

3. Macfarlan JA analysed the conduct as a whole by reference to the nature of the parties, the character of the transaction, and the contents of the catalogue. The parties were intelligent, experienced commercial people and the buyers were aware that problems could occur with identifying sires. The character of the transaction was a sale by experienced commercial parties in which it could be reasonably expected that a purchaser would read the whole catalogue. The disclaimer was a prominent part of the catalogue and was clearly expressed.
4. Macfarlan JA's conclusion was that, assessing the conduct of the whole, there was no representation, as a matter of certain fact, as to the bull's sire. There might be a representation that all reasonable care had been taken to identify the sire and that the sellers believed the sire to be as represented, but Macfarlan JA observed that neither of those representations would have been untrue.[342] Macfarlan JA said:

The disclaimer clause was important, not because it excluded liability which otherwise arose, but because it was an integral part of the [sellers'] conduct, as it was in relation to the real estate agent's conduct in Butcher.[343]

1. Bell ACJ referred to a submission that had been made on behalf of the sellers criticising the primary judge who had structured the judgment in such a way that the conclusion that the representation relied upon was misleading or deceptive was reached before consideration was given to the disclaimer. Thus, it was submitted, the judge had failed to consider the disclaimer when characterising the conduct or the representation in question. Bell ACJ accepted that submission.[344]
2. Bell ACJ concluded that the disclaimer itself altered the character of the representation made. The disclaimer 'turned what were bald statements of fact as to the Bull's sire into statements of the appellants' belief as to the identity of its sire'.[345] He found, just as Macfarlan JA had, that a representation as to the sellers' belief concerning the bull's sire would not, on the facts, have been misleading or deceptive.[346]

(c) High Court authority on disclaimers and misleading or deceptive conduct

3. We turn now to relevant High Court authority concerning disclaimers and misleading or deceptive conduct, some of which we have touched on above.
4. In Burke v LFOT Pty Ltd ('Burke'), Callinan J cited Henjo for the proposition that '[a] person may not contract out of the [TPA]'.[347] Shortly thereafter the High Court analysed the effect of a disclaimer in this context in Butcher.
5. Butcher concerned a representation alleged to be impliedly made in a sales brochure for a residential property, in relation to the position of a swimming pool. The brochure contained a disclaimer in small print in two places. The disclaimer stated that the information contained in the brochure had been gathered from sources believed to be reliable, but its accuracy could not be guaranteed and interested persons should rely upon their own enquiries.
6. Proceedings were issued against both the vendor of the property and against the agent who had distributed the brochure, and who had met with and discussed relevant matters with the claimants during inspections at the property.
7. The claimants bought the property at auction. When the implied representation as to the position of the swimming pool was found to be inaccurate, the claimants refused to complete the contract and issued proceedings. The purchasers succeeded against the vendor, at least to the extent of recovering the deposit. The claim which reached the High Court was that against the agent. At first instance before Austin J, and on appeal to the New South Wales Court of Appeal, the purchasers failed against the agent. In the High Court their appeal was dismissed.
8. The majority, Gleeson CJ, Hayne and Heydon JJ, analysed the conduct as a whole, including the disclaimers, and concluded that, in the circumstances, all that the agent had represented was that it was passing on information supplied by others, the accuracy of which it could not guarantee.[348] In relation to the role of the disclaimers, they observed as follows:

It is not right to characterise the problem as one of analysing the effect of [the agent's] 'conduct' divorced from 'disclaimers' about that 'conduct' and divorced from other circumstances which might qualify its character.[349]

1. In the course of the majority's analysis of the matters relied upon by the purchasers, they referred to Burchett J's decision in Benlist and quoted a passage from his judgment where he had said that disclaimer provisions cannot 'evade the operation of' the TPA, although they might have the effect of erasing whatever is misleading 'by actually modifying the conduct'.[350] The majority observed that the conclusions of Burchett J were no doubt open to him on the facts of that case, but that different conclusions were open in other cases.[351] In the majority's view, the disclaimers did 'modify' the conduct in this case.
2. McHugh J and Kirby J dissented in Butcher. Their approach, however, was essentially the same as that adopted by the majority. They considered the entirety of the conduct, including the disclaimers, in order to determine whether that conduct had been misleading or deceptive. In that context, McHugh J particularly emphasised that all of the 'conduct' had to be considered, not just the representations made. Amongst the circumstances he considered to be important were inspections held at the property in the company of the agent at which the purchasers' plans were discussed.[352] Kirby J was particularly influenced by what he considered to be the very small size and inconspicuous locations of the disclaimers.[353]
3. McHugh J endorsed the same passage from Burchett J's judgment in Benlist that had been quoted by the majority.[354] His Honour concluded his judgment as follows:

Moreover, as Burchett J acknowledged in Lezam, once misleading or deceptive conduct is shown, the Act prevails over the disclaimer. It would be contrary to the consumer protection objects of the statute and to public policy for disclaimers to deny a statutory remedy for offending conduct under the Act.[355]

1. McHugh J footnoted that passage by reference to the passage of Lockhart J in Henjo previously quoted and to Burchett J's judgment in Lezam.
2. We observe, in passing, that Butcher was not a case where the disclaimer relied upon was contained in the contract that was said to be induced by the alleged misrepresentation. Rather, it was in a sales brochure that lacked contractual effect, and preceded the entry into the contract. But it was contemporaneous with the allegedly misleading representation.
3. In Campbell v Backoffice, the High Court considered a claim for misleading or deceptive conduct in contravention of s 42 of the Fair Trading Act 1987 (NSW), an equivalent provision to s 52 of the TPA and s 18 of the Australian Consumer Law.[356] The misleading or deceptive conduct was alleged to have been relied upon in entering into a share sale agreement. The share sale agreement contained an entire agreement clause and a provision denying that the purchaser relied upon any warranty made by or on behalf of the vendor, except those set out in the agreement.
4. The judgment of the plurality (Gummow, Hayne, Heydon and Kiefel JJ) adopted McHugh J's analysis in Butcher concerning the need to consider the whole of the relevant conduct.[357]
5. The contractual provisions referred to had been given little attention at first instance or before the Court of Appeal. The defendants had accepted that the provisions were 'not definitive', but had submitted that their presence militated against reliance.[358]
6. In the High Court the plurality observed that it was unnecessary to resolve the question of the effect of the contractual provisions because the claims for misleading or deceptive conduct failed for other reasons.[359] The plurality then said:

It is as well to add, however, that, of itself, neither the inclusion of an entire agreement clause in an agreement nor the inclusion of a provision expressly denying reliance upon pre-contractual representations will necessarily prevent the provision of misleading information before a contract was made constituting a contravention of the prohibition against misleading or deceptive conduct by which loss or damage was sustained. As pointed out earlier, by reference to the reasons of McHugh J in Butcher, whether conduct is misleading or deceptive is a question of fact to be decided by reference to all of the relevant circumstances, of which the terms of the contract are but one.[360]

1. In a separate judgment, French CJ observed that a 'contemporaneous disclaimer' is likely to go to the 'characterisation' of the conduct, and a subsequent declaration of non-reliance is more likely to be relevant to the question of causation.[361] French CJ also adopted the plurality's analysis of Butcher concerning the need to consider the conduct as a whole.[362]
2. French CJ explained that 'contractual disclaimers of reliance' might be evidence of non-reliance and of the want of a causal link between the impugned conduct and the loss, but that the person making the declaration of non-reliance may nevertheless be found to have been actuated by the misrepresentations in entering into the contract. French CJ said the question is not a question of law, but of fact.[363]

(d) The difference between disclaimers and settlement agreements

3. It is necessary also to observe that, although a person cannot contract out of liability for fraud or deceit, or out of certain statutory rights or entitlements, it generally remains possible for parties to a dispute about fraud, deceit or breach of such statutory rights to compromise the dispute. The distinction between the compromise of a dispute, through a settlement agreement, and the impermissible bargaining away of liability for fraud, or of statutory rights, is well recognised. As this Court observed in MBF Investments, the public policy considerations applicable to an attempt to contract out of a statutory duty in advance are different from those that apply to a release contained in a deed executed to resolve a dispute about the operation of the relevant statutory provision.[364]
4. The ability of a person to compromise a claim based on statutory rights that cannot themselves be bargained away was recently the subject of consideration by the Full Court of the Federal Court in Wardman v Macquarie Bank Ltd ('Wardman').[365] The Court there referred to various examples where parties who were in dispute over statutory entitlements that may not be bargained away could, nonetheless, effectively contract to compromise the dispute. Two such examples may be mentioned here, by way of illustration:

(a) In Qantas Airways Ltd v Gubbins the New South Wales Court of Appeal held that persons affected by discriminatory practices prohibited by the Anti-Discrimination Act 1977 (NSW) could not bargain away those rights in advance, but that the position was otherwise once a dispute had arisen, because the Act encouraged settlement of disputes, and that it was clear that it did not preclude complainants from compromising or releasing accrued claims for damages.[366] > > (b) Similarly, in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd, the Full Court of the Federal Court stated that it is true that certain statutory rights 'cannot be waived or compromised'. The Court went on, however, to observe that 'this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation'.[367] > > > (e) Construction of releases in settlement agreements

5. In Wardman the Full Court (Wheelahan J, with whom Bromberg J and Snaden J relevantly agreed) observed that the question whether a release effects a permissible bona fide settlement of a claim to a statutory entitlement, or amounts to an impermissible contracting out of a statutory entitlement, is to be resolved by the application of the principles relating to the construction of contracts, and in particular those aspects of the principles that relate to the construction of releases.[368]

(a) As to the former, the principles are well established: contracts are to be construed objectively, by ascertaining what a reasonable person in the position of the parties would have understood the words of the contract to mean, having regard to such matters as the surrounding circumstances known to the parties and addressed by the contract, and the purpose or objects to be secured by the contract.[369] > > (b) As to the latter, the construction of releases was the subject of consideration by the High Court in Grant v John Grant & Sons Pty Ltd ('Grant').[370] Relevantly, Dixon CJ, Fullagar, Kitto and Taylor JJ observed that 'the general words of a release should be restrained by the particular occasion' (including recitals in the release), and that 'general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given'. The difference between the two in that case lay in the difference between controlling general words by reference to an express recital and controlling general words by reference to the disputes which existed between the releasor and the releasee.[371] The joint judgment in Grant also referred to principles of equity that protect persons from unconscientious reliance upon general words of a release. In relation to the latter, their Honours observed that:

a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.

However, they considered that it was possible for a release to be framed in general terms

in the hope of blotting out ... all conceivable grounds of further disputes or claims between all or any two or more parties to the deed, whether in respect of matters disclosed by a party against whom a claim might be made or undisclosed, of matters within the knowledge of a party by whom a claim might be made or outside it.

Such a clause would fall within the notion that a release may, by 'particular and solemn composition ... expressly agree to release uncertain demands. But, they observed, such an intention would not be presumed in equity, and was not made good in the instant case.[372]

1. It is also necessary to refer to some United Kingdom authorities concerning the construction of releases in settlement agreements, which were relied upon by the Viterra Parties.
2. The first of these is MAN Nutzfahrzeuge AG v Freightliner Ltd ('MAN'), a decision of Moore-Bick LJ in the Queen's Bench Division of the High Court.[373] The decision concerned a settlement agreement and the issue was whether the terms of that agreement should be construed as extending to a claim of fraud. Those seeking to avoid that conclusion cited and relied upon HIH v Chase. Those contending that fraud was covered relied upon a more recent decision of the House of Lords, which concerned the construction of a settlement agreement, in Bank of Credit and Commerce International SA v Ali ('BCCI v Ali').[374]
3. In BCCI v Ali, the House of Lords considered the width of a general release in a settlement agreement. It held that such releases were to be construed in the same way as any other contractual provision and that no special rules applied. To that extent, BCCI v Ali appears to us to diverge from Grant. However, the House of Lords also emphasised that however wide the language was cast, it was always necessary to understand the context in which a release had been agreed in order to decide its true scope.
4. In considering the contending propositions in MAN, Moore-Bick LJ addressed the context and then said:

I find it more difficult to say that they intended to release Western Star from liability from claims arising out of its own fraud, however. I am satisfied that neither party had the possibility of fraud in mind. As Rix LJ said in [HIH v Chase], fraud is a thing apart because parties contract with one another in the expectation of honest dealing.[375]

1. On this basis, Moore-Bick LJ held that the settlement agreement in that case was not intended to deprive the releasing party of its right to pursue a claim in fraud.
2. Satyam Computer Services Ltd v Upaid Systems Ltd is a decision of the Court of Appeal of England and Wales, on appeal from a decision of Flaux J in the High Court.[376] It also concerned the construction of a settlement agreement. Collins LJ (with whom Rimer LJ and Waller LJ agreed) endorsed Moore-Bick LJ's view in MAN that fraud is 'a thing apart because parties contract with one another in the expectation of honest dealing'. He upheld Flaux J's conclusion that the exclusion of fraud-based claims could only be achieved 'through the use of the clearest possible specific language'.[377] The language in issue in MAN did not meet that standard.
3. Maranello Rosso Ltd v Lohomij BV ('Maranello') is another decision of the High Court of England and Wales concerning the construction of a settlement agreement and whether that agreement released claims in fraud.[378] After reviewing the relevant authorities, Judge Keyser QC said that there was no principle of law that express words were required for the release of claims in fraud, but he said that the fact that parties generally contract with one another in the expectation of honest dealing is a matter which may be taken into account as part of the context and may consequently affect a contract's interpretation. He summarised the position as follows:

First, there is no rule of law requiring that express words referring to claims based on fraud or dishonesty be used if a release is to extend to them. As a matter of common sense, in the absence of such words one will not readily conclude that a reasonable person would understand a release to refer to such claims. However, if the normal principles of construction lead to the conclusion that the release does indeed extend to such claims, the conclusion must be respected.[379]

1. In the context of the construction of settlement agreements, the United Kingdom authorities relied upon by the Viterra Parties reveal that careful attention is given to the disputes which were in contemplation at the time, as well as to the consideration of factors such as the existence or otherwise of an intention to bring all disputes, known or unknown, to an end.
2. Returning to Grant, the principles for which it stands are sometimes described more widely than is justified.[380] However, Grant confirms that in Australia, as in the United Kingdom, an important relevant consideration when construing a release in a settlement agreement that is expressed in general terms is the identification of the disputes within the contemplation of the parties at the relevant time.

3. On the basis of this review of the authorities, in our opinion the current position is as follows:
   • (1) Contractual provisions cannot absolve a party from liability for the party's own fraud (Pearson, HIH v Chase, Onley and Scarborough; and Henjo itself insofar as reference was made to misleading or deceptive conduct which was fraudulent). That is so whether the provision is contained in a contract induced by fraud, or in a separate contract not induced by fraud. Further, if we are wrong in this regard, we consider that any contractual exclusion for fraud would need to be clear and unmistakable: general words would not suffice. The language would have to be such as would alert a commercial party to the extraordinary bargain that party was invited to make.
   • (2) Contractual provisions might be effective to absolve a party from liability for the fraud of that party's agent, but again general words would not suffice. The exclusion of liability for fraud would have to be clear and unmistakable. Again, the language would have to be such as would alert a commercial party to the extraordinary bargain that party was invited to make (HIH v Chase, Onley).
   • (3) No representation clauses and no reliance clauses and other forms of disclaimers can have an evidentiary effect that negates an integer of liability in relation to misleading or deceptive conduct. They may alter the character of a representation which was made. They may render conduct not misleading or deceptive. They may lead to a conclusion that a claimant did not rely upon the conduct or did not suffer loss because of the conduct. Such provisions, however, cannot otherwise have the effect of absolving a party from liability for misleading or deceptive conduct, even where their express terms purport to do so (Clark Equipment, Henjo, Netaf, Lezam, Butcher, Downey, Warwick Entertainment, Campbell v Backoffice, Mark Bain).
   • (4) The potential for no representation clauses, no reliance clauses and other disclaimers to have the effect of negating an integer of liability emphasises the importance of assessing the entirety of the relevant conduct as a whole (Butcher, Campbell v Backoffice, Ireland).
   • (5) Exclusion clauses which purport to absolve liability under the Australian Consumer Law for misleading or deceptive conduct which has occurred and has caused loss cannot have effect in accordance with their terms where they are contained in a contract which the claimant has been misled into entering (Henjo, Scarborough, Warwick Entertainment, Mark Bain). This principle extends to any contract which purports to absolve a misrepresentor from liability for misleading or deceptive conduct, even if the claimant was not misled into entering into the contract (IOOF).
   • (6) Although a person cannot contract out of liability for fraud or deceit, or out of certain statutory rights or entitlements, it generally remains possible for parties to compromise a dispute about fraud, deceit or breach of such statutory rights (Grant, MBF Investments, Wardman). The question whether a particular contractual provision is properly characterised as a compromise of a dispute or as an attempt to contract out of liability for fraud, deceit or statutory rights is a question of construction of the provision in question.
   • (8) Ground 1: Is cl 10.3 of the Confidentiality Deed unenforceable in relation to misleading or deceptive conduct?
4. We now turn to ground 1, which raises the question of the correctness, extent and application of the public policy principle identified in Henjo.
5. By ground 1, the Viterra Parties contend that the judge erred in holding that cl 10.3 of the Confidentiality Deed was unenforceable insofar as it purported to prospectively release Viterra from liability for misleading or deceptive conduct under the Australian Consumer Law.

1. Beginning with the judge's treatment of Henjo and other associated cases, the Viterra Parties submitted that the judge failed to properly analyse these authorities; and that he failed to recognise the key distinguishing feature between those cases and the instant case, being the 'prospective' nature of cl 10.3. They submitted that Lockhart J's statement in Henjo that there are 'wider objections' to allowing contractual clauses to exclude liability for misleading or deceptive conduct needed to be read in the light of the facts of that case, and in particular the fact that the relevant contractual clauses in Henjo had been procured by the alleged misleading conduct. They submitted that Henjo does not apply to 'prospective clauses', like cl 10.3, which were not procured by misleading or deceptive conduct.
2. The Viterra Parties submitted that courts have often read Henjo too widely. By way of example, the Viterra Parties quoted this Court's comment in MBF Investments that s 52(1) of the TPA cannot be circumvented by an exclusion clause, no matter how widely drafted.[381] The Viterra Parties submitted that there is no High Court decision supporting a proposition of that width.
3. On the role of public policy, the Viterra Parties relied upon the High Court decision of Miller v Miller.[382] There, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that 'the relevant principles are not ... identified by asserting, without further explanation, that public policy "requires" that such a plaintiff have no claim'. The 'principles' to which their Honours were referring were those governing 'whether and how the fact that a plaintiff acted illegally in the course of, or in connection with, events said to give rise to liability in negligence bears upon the liability of the defendant to the plaintiff'.[383] The Viterra Parties submitted that Miller v Miller was apposite here, and that the primary judge had been too cursory in his public policy analysis of cl 10.3.
4. The Viterra Parties submitted that a proper analysis of whether cl 10.3, as a clause operating 'prospectively' and not one agreed to as a consequence of misleading or deceptive conduct, contravened public policy required application of the principle articulated by the High Court in Westfield that 'a person upon whom a statute confers a right may waive or renounce his or her rights unless it would be contrary to the statute to do so'.[384] It was submitted that the 'right' in question was that conferred upon Cargill Australia by s 236 of the Australian Consumer Law to recover losses or damages because of conduct contravening s 18 of the Australian Consumer Law.
5. As to whether waiving this right was contrary to the statute, the Viterra Parties submitted that s 18 of the Australian Consumer Law was a norm of conduct only and that it specified no remedy. They submitted that this is why parties cannot agree that particular conduct does not contravene the norm, and why whether the norm is contravened is always a question of fact. They submitted that a range of remedies (including those in ss 236-41, 246) are available for breach of s 18; and that exactly who has standing to exercise each of these remedies varies. Once this statutory scheme was appreciated, the Viterra Parties submitted, it followed that s 236 conferred a right that was for the benefit of claimants only; and accordingly, it was a private right capable of being renounced.
6. The Viterra Parties submitted that the ability to renounce this right was consistent with the public policy of the Australian Consumer Law. They submitted that there was little difference between this case and Price v Spoor, where the High Court held that a party was permitted to forgo its right to raise a limitation of actions defence conferred by statute.[385] They submitted that cl 10.3 does not impinge on the statutory norm in s 18 of the Australian Consumer Law; and that cl 10.3 also left intact the regulator's ability to seek other remedies under pt 5-2 of the Australian Consumer Law.[386]
7. The Viterra Parties relied upon the importance of freedom of contract.[387] They submitted that to impede cl 10.3's full operation would amount to undue judicial intervention, and that this would be inconsistent with the courts' role of fostering certainty of contract.[388]
8. Finally, the Viterra Parties submitted that if Henjo did in fact foreclose the Viterra Parties' arguments as advanced above, then Henjo was 'plainly wrong' to that extent and should be overruled. In that connection, the Viterra Parties relied upon the Scruby and Heydon articles and in effect incorporated them as part of their submissions.

1. Cargill framed the Henjo doctrine as one which sits within the pre-existing framework of illegal contracts, as set out by Jacobs J in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd ('Yango'). There, his Honour set out three situations where an agreement may be unenforceable for illegality.

(a) The first is where an agreement is expressly prohibited by statute. > > (b) The second is where the agreement is impliedly prohibited by statute. > > (c) The third is where the agreement is 'associated with or in the furtherance of illegal purposes'.[389]

2. Cargill submitted that the third Yango category takes into account the public policies that are reflected in statutes. They submitted that this has led to a class of illegal contracts known as 'contracts that are contrary to the policy of a statute'.[390] Cargill submitted that where a statute prescribes a norm of conduct or a duty to be performed in the public interest, it cannot be circumvented by private agreement. They submitted that a person may only forgo a right conferred solely for their private benefit.
3. Cargill relied upon authorities which described the relevant provisions of the Australian Consumer Law as involving matters of 'high public policy';[391] 'concerned primarily with the protection of the public interest in the prevention of anti-competitive conduct in markets within Australia ... and the fair treatment of consumers';[392] and constituting a 'fundamental piece of remedial and protective legislation'.[393] In this context, Cargill also quoted Lockhart J's observation in Henjo that there were 'wider objections to allowing effect to ... special conditions ... which ... deny or prohibit a statutory remedy for offending conduct under the [TPA]', because the TPA is a 'public policy statute ... passed ... to stamp out unfair or improper conduct'.[394]
4. Cargill submitted that Lockhart J's analysis in Henjo has been endorsed by state and federal intermediate appellate courts, and by a justice of the High Court (a reference to Callinan J in Burke).
5. In response to the Viterra Parties' submission that the Henjo doctrine applied only to clauses procured by misleading or deceptive conduct, Cargill relied upon IOOF where, they submitted, the Full Court of the Federal Court had said that the public policy which lies behind the court's refusal to allow a party to contract out of liability under s 52 of the TPA was not limited to clauses in documents whose execution had been procured by misrepresentation; but rather, it 'extend[s] to any document which purports to excuse a misrepresentor' from liability under s 52.
6. Cargill submitted that the right in issue here was relevantly analogous to the voting rights under s 601NB of the Corporations Act 2001 (Cth) that the High Court had held could not be contracted out of in Westfield, and was not analogous to the right to plead a limitation period which the High Court had held could be contracted out of in Price v Spoor.
7. Cargill submitted that the statutory scheme of the Australian Consumer Law is such that litigants vindicate their private rights concurrently with the public interest, in order to fulfil Parliament's objective of stamping out bad behaviour.[395]
8. Finally, Cargill submitted that as a matter of precedent, Henjo stated a general statement of principle which was capable of applying to facts other than those of Henjo. They submitted that to distinguish Henjo on the basis that cl 10.3 was a prospective clause would be unprincipled, and that the relevant public policy considerations apply irrespective of whether the contractual clause is prospective.

(b) Is this court required to follow Henjo unless it is 'plainly wrong'?

9. It is necessary to consider a preliminary question as to the nature of the task confronting this court in relation to ground 1, namely: are we required to follow the Full Court's articulation of the public policy principle in Henjo unless we are persuaded it is 'plainly wrong'?
10. We note that the Viterra Parties do not, at least in the first instance, invite this Court to decline to follow Henjo. Instead, they contend that the principles in Henjo are to be confined to a circumstance where the contractual clause relied upon is in a contract which the claimant has been misled into entering. In the alternative they suggest that if the principles are not so confined, then Henjo is plainly wrong. In our opinion, however, to accept the contention that the public policy analysis in Henjo is so confined would be inconsistent with the analysis in Henjo, because it would ignore the 'wider objections' there articulated. It would, in effect, remove from consideration the public policy issue. Further, the Viterra Parties' contention in that regard is directly inconsistent with the decision of the Full Court of the Federal Court in IOOF (which itself rested upon the articulation of the public policy principle in Henjo). We do not consider that the Court's conclusion in IOOF that the deed in that case was unenforceable for reasons of public policy is appropriately regarded as dicta. It is thus necessary to consider whether IOOF was plainly wrong (although the answer to that question will be informed by whether we consider Henjo to be wrong).
11. Henjo is a decision of the Full Court of the Federal Court. It has been adopted and applied in the Full Court of the Federal Court (Netaf, Lezam, IOOF) and by Courts of Appeal in New South Wales and Queensland (Scarborough, JM & PM, Downey, Mark Bain). It has also been cited with approval in this Court (MBF Investments). The applicable principles were applied without citing Henjo in Warwick Entertainment by the Court of Appeal in Western Australia.
12. The public policy principle identified in Henjo has not been the subject of express consideration in the High Court. The case was cited with apparent approval by Callinan J in Burke and McHugh J in Butcher. Although McHugh J was in dissent in Butcher, he did not differ from the majority on the relevant legal principles; rather, he differed on the application of the principles to the facts. McHugh J's identification of the legal principles was adopted by the plurality and by French CJ in Campbell v Backoffice, which may be seen as an implicit endorsement of the Henjo approach. Nonetheless, we do not consider that the public policy principle identified in Henjo and applied to the Australian Consumer Law has been endorsed by the High Court such that we are required to follow it for that reason.
13. This Court is required to follow decisions of other intermediate appellate courts unless satisfied that they are plainly wrong.[396] However, this Court is not bound to follow obiter dicta of other intermediate appellate courts, although we would ordinarily be expected to give 'great weight' to them.[397] The parties differed as to whether the public policy reasoning in Henjo was part of the ratio, or obiter dicta.
14. As discussed earlier, the Full Court's analysis in Henjo advances two reasons why the clauses in issue in that case could not be effective to defeat claims for misleading or deceptive conduct.

(a) The first, based on the Full Court's endorsement of Wilcox J's analysis at first instance, is, at least in part, based on the fact that the clauses relied upon were in an agreement which the claimant had been misled into entering. > > (b) The second was what the Full Court identified as 'wider objections'. It was in relation to those 'wider objections' that the public policy principle that liability for misleading or deceptive conduct cannot be ousted by private agreement was articulated.

15. However, before reaching that conclusion the Full Court had concluded that the contractual clauses in issue there did not, as a matter of construction, cover claims for misleading or deceptive conduct. For that reason, the better view is that the subsequent analysis was obiter dicta, even though that subsequent analysis was expressly said to be 'irrespective' of the construction issue. That it was obiter dicta is further supported by the absence of detailed reasoning underpinning the court's conclusion, a matter that has been the subject of comment in the Scruby article and the Heydon article. But, even accepting that this aspect of the Court's reasoning was obiter, we must of course give it great weight. That, together with the observation that this aspect of Henjo has been followed by several intermediate appellate courts, is our starting point.
16. We note that Henjo has been subject to recent academic criticism in the Scruby article and the Heydon article. But, as the review of the authorities reveals, it has been extensively cited, relied upon and applied in intermediate appellate courts, both state and federal. The High Court has not addressed the issue in any detailed way, but references have been made to Henjo without criticism or qualification, and the analyses of the plurality and of French CJ in Campbell v Backoffice in characterising the relevance of such clauses as being relevant to issues of fact is consistent with the approach adopted in Henjo and might be seen as an implicit endorsement.
17. We were invited by the parties to undertake our own detailed analysis of the public policy issue in the context of the Australian Consumer Law, in particular by reference to the decisions of the High Court in Westfield and Price v Spoor and by reference to the Scruby and Heydon articles. One criticism of Henjo, levelled in the Scruby and Heydon articles,[398] is that the Court there failed to undertake a careful, detailed analysis as required by the High Court in Miller v Miller.[399] Heydon also suggests that later cases that have followed Henjo have done so 'routinely, incuriously, perfunctorily and without fresh analysis'.[400] Whether or not that is so, we consider it appropriate to undertake a detailed analysis of the operation of the public policy principle in the context of attempts to contract out of the Australian Consumer Law.

(c) Is cl 10.3 unenforceable as a matter of public policy?

1. We take as our starting point the accepted proposition that a contractual provision may be unenforceable in three circumstances:

(a) if it is expressly prohibited by statute; > > (b) if it is impliedly prohibited by statute; or > > (c) if it is 'associated with or in furtherance of an illegal purpose'.[401]

2. There was no dispute between the parties that neither the first nor the second category is presently relevant. Rather, the question is whether the third category is engaged.
3. The third category was explained by French CJ, Crennan and Kiefel JJ in Equuscorp Pty Ltd v Haxton ('Equuscorp') as follows:

In the third category of case, the court acts to uphold the policy of the law, which may make the agreement unenforceable. That policy does not impose the sanction of unenforceability on every agreement associated with or made in furtherance of illegal purposes. The court must discern from the scope and purpose of the relevant statute 'whether the legislative purpose will be fulfilled without regarding the contract or the trust as void and unenforceable'. As in the case when a plaintiff sues another for damages sustained in the course of or as a result of illegal conduct of the plaintiff, 'the central policy consideration at stake is the coherence of the law'.[402]

1. Similarly, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ explained in Miller v Miller, adopting what had been said in Yango, that 'in addition to, and distinct from, cases where a statute expressly or impliedly prohibits the making or performance of a contract, are cases "where the policy of the law renders contractual arrangements ineffective or void"'. In such cases, the refusal to enforce the contract stems from public policy, but nonetheless, the scope and purpose of the statute are central to the question of whether the legislative purpose is such as to require such a conclusion.[403]
2. The third category includes contractual provisions that are contrary to the policy or purpose of a statute. As French CJ, Crennan, Kiefel and Bell JJ explained in Westfield, it is the 'policy of the law' that a contractual provision will not be enforced where it operates 'to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest, rather than for the benefit of an individual alone'. Such provisions are 'ineffective or void, even in the absence of a breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text'.[404]
3. It is also necessary to observe that, as the Scruby and Heydon articles point out, the High Court has, from time to time, emphasised the importance of freedom of contract.[405] Nonetheless, it is plain that the importance of freedom of contract does not displace the common law principle that the three categories of contractual provision identified above are void or unenforceable. The very point of those categories is that they provide exceptions to freedom of contract. It is also important not to gather a selection of statements concerning freedom of contract from varying contexts, and to conclude from such statements that freedom of contract is an overarching principle that requires the conclusion that parties may contract out of s 236. That would be to fail to undertake the analysis required by Miller and Equuscorp.
4. In the light of the above, the question in the present case is whether the Australian Consumer Law confers statutory rights - in particular, the right to sue for damages in s 236 - in the public interest, rather than for the benefit of the individual alone, so as to invoke the public policy principle articulated above. In answering that question it is appropriate to consider the following matters:

(a) the relevant express terms of the Australian Consumer Law; > > (b) the purpose (or 'policy') of the relevant provisions and of the Act as a whole; and > > (c) the nature of the right conferred by s 236 of the Australian Consumer Law.

5. We note at this point that the Viterra Parties did not contend that it was permissible to 'contract out' of s 18 of the Australian Consumer Law; rather, they contended that a person could 'contract out' of s 236 by, in effect, agreeing to waive or forgo the personal right to seek relief conferred by that section.

1. The relevant express terms of the Australian Consumer Law include, in particular, ss 18 and 236, being the particular provisions invoked in the present case. However, it is also necessary to consider various other provisions of the Australian Consumer Law, in particular the other remedial provisions found in pt 5-2.
2. Section 18(1) sets out a norm of conduct. It is in materially the same terms as s 52 of the TPA.[406] It provides that a person 'must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive'. However, it provides no consequences for breach of the norm. Those are found elsewhere, in pt 5-2.
3. Part 5-2 contains a variety of remedies available when a person has contravened s 18:

(a) Under s 232(1) a court may grant an injunction if it is satisfied that a person has engaged in, or is proposing to engage in, conduct that contravenes s 18.[407] An injunction may include a requirement that a person refund money (s 232(6)(a)). Either the regulator or any other person may seek such an injunction (s 232(2)). > > (b) Under s 236 a person who suffers loss or damage because of conduct of another person that contravened s 18 may recover the amount of the loss or damage from the other person.[408] > > (c) Under s 237 a court may make a compensation order to compensate a person who has suffered loss or damage because of the conduct of another person that contravened s 18. Either the regulator on behalf of an injured person (with their written consent: s 242(2)), or the injured person, may seek such an order (s 237(1)). > > (d) Under s 239 a court may make a redress order (other than an award of damages) if a person has contravened s 18 and the contravening conduct caused or is likely to cause non-party consumers to suffer loss or damage. Such an order may be sought only by the regulator. > > (e) Under s 246 a court may make a 'non-punitive order' in relation to a person who has contravened s 18. Such an order may be sought only by the regulator.

4. Examples of the kinds of orders a court may make under ss 237(1), 238(1) or 239(1) are set out in s 243,[409] relevantly including the following:

(a) an order declaring all or part of a contract to be void, either ab initio or from a specified date (s 243(a)); > > (b) an order varying a contract (s 243(b)); > > (c) an order refusing to enforce any or all of the provisions of a contract (s 243(c)); > > (d) an order for the refund of money or for the return of property, or for the payment of an amount of loss or damage (ss 243(d) and (e)).

5. In addition, pt 5-2 provides remedies for breaches of other provisions of the Australian Consumer Law, including the prohibition on unconscionable conduct found in pt 2-2. Those additional remedies include:

(a) pecuniary penalties (s 224), which may be sought only by the regulator (s 228); and > > (b) adverse publicity orders (s 247), which may be sought only by the regulator.

6. The Australian Consumer Law also contains express prohibitions on 'contracting out' of certain provisions. Thus:

(a) section 64 provides that a term of a contract is void to the extent that it purports to exclude, restrict or modify the application of the provisions of div 1 of pt 3-2, concerning consumer guarantees; > > (b) section 67 provides that certain choice of law provisions of a contract are ineffective to preclude the application of div 1 of pt 3-2 in relation to the supply of goods or services to a consumer; > > (c) section 89 provides that certain provisions of unsolicited consumer agreements are void to the extent that they have the effect of excluding, restricting or modifying the effect of div 2 of pt 3-2; > > (d) section 90 provides that a consumer under an unsolicited consumer agreement is not competent to waive any right conferred by div 2 of pt 3-2 (and s 183 provides that a supplier under such an agreement commits an offence if they induce the consumer to waive such a right); > > (e) section 150 provides that any term of a contract that purports to exclude, restrict or modify the application of the provisions of pt 3-5, or the exercise of any right conferred by those provisions, is void; > > (f) section 276 provides that any term of a contract that purports to exclude, restrict or modify the application of the provisions of pt 5-4, or the exercise of any right conferred by those provisions, is void.

7. There are no provisions in the Australian Consumer Law that expressly prohibit 'contracting out' of either s 18 or s 236. That fact might appear to support the Viterra Parties' contention that it is permissible for a person to waive the right conferred by s 236 to obtain damages for a contravention of s 18. However, as the plurality made clear in Westfield, the fact that a statute does not contain an express prohibition on a person contracting not to exercise a right does not conclude the question as to the enforceability of such an agreement.[410] Indeed, that must follow from the tripartite analysis set out above, and the existence of the third category.
8. We note, too, that the Corporations Act 2001 (Cth) (the legislation in question in Westfield), like the Australian Consumer Law, contained provisions that prohibited 'contracting out' of other aspects of the Corporations Act 2001 (Cth),[411] but no such provision in relation to Ch 5C, the chapter in issue in Westfield. Yet that did not prevent the High Court from concluding that '[a]n agreement between the members of a scheme and the responsible entity which purports to deprive members of the rights given by Ch 5C would be prejudicial to their interests and contrary to the protective purposes which inform the regulatory scheme of Ch 5C'.[412]

1. Turning to the relevant legislative purpose or policy, we commence with the following observation in Westfield:

Some statutes may, by their nature and purpose, more readily suggest inconsistency with an individual's liberty to forego statutory rights. Some statutes which have a regulatory and protective purpose may fall into this category.[413]

1. In our opinion the Australian Consumer Law is of that character: it is a statute that has a regulatory and protective purpose. This emerges from the terms and operation of the legislation, and from the cases on the relevant provisions and their predecessors, in particular ss 52 and 82 of the TPA.[414]
2. The Australian Consumer Law is found in the Competition and Consumer Act 2010 (Cth), which has as its object 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection'.[415] It is well established that the TPA - and, we interpolate, the Australian Consumer Law as the successor legislation to the TPA - is concerned with the protection of the public interest in the prevention of practices and conduct that are contrary to the public interest.[416] The TPA was described by Gummow J in Marks v GIO Australia Holdings Ltd ('Marks') as a 'fundamental piece of remedial and protective legislation which gives effect to "matters of high public policy"'.[417] That applies equally to the Australian Consumer Law. More specifically, s 18 of the Australian Consumer Law is remedial and protective in nature. That is borne out by a consideration of the conduct that is prohibited by s 18, namely conduct in trade and commerce that is misleading or deceptive. There is a clear public interest in prohibiting conduct of that kind.
3. There are a number of aspects to the way in which the Australian Consumer Law regulates misleading or deceptive conduct. First, there is the prohibition itself, in s 18. It is not possible for a person to 'contract out' of s 18, as the Viterra Parties accepted. As Gummow J observed in Marks (in relation to s 52 of the TPA), s 18 'establishes a norm of conduct but imposes no sanction and specifies no remedy'.[418] It does not purport to create liability, nor does it vest in any party any cause of action; rather, a failure to observe that norm has consequences provided for elsewhere in the Act.[419] The Australian Consumer Law thus imposes an obligation on persons engaged in trade and commerce not to engage in misleading or deceptive conduct; but the mechanisms by which that obligation is enforced are found elsewhere in the Australian Consumer Law.
4. In that regard, as explained above, pt 5-2 of the Australian Consumer Law provides for various remedies in relation to such conduct, including:

(a) injunctions under s 232; > > (b) orders for damages under s 236; > > (c) compensation orders under s 237; > > (d) third party redress orders under s 239; and > > (e) non-punitive orders under s 246.

5. Some of these remedies may be obtained only by the regulator (such as third party redress orders and non-punitive orders). Some may be obtained by the regulator or another person (such as injunctions and compensation orders). In contrast, an order for damages under s 236 may be obtained only by the person who has suffered loss or damage because of the misleading or deceptive conduct.
6. As we understood their argument, the Viterra Parties appeared implicitly to accept that a person cannot contract out of a remedy that the regulator can seek.[420] But, they contended, s 236 is different. Because it is available only at the suit of an affected person, it is a provision that is capable of waiver by the affected person, including by contractual waiver in advance (just as a person can choose not to seek a remedy under s 236 after misleading or deceptive conduct has occurred). In that regard, they relied upon Price v Spoor.[421]

1. Price v Spoor concerned a mortgage, cl 24 of which purported to exclude the provisions of all statutes that 'curtailed, suspended, postponed, defeated or extinguished' the mortgagee's powers and rights 'insofar as this can lawfully be done'. Following default by the mortgagors, the mortgagee's successors in title sought to recover the monies owed and possession of the land. The mortgagors pleaded that the claims were statute-barred by ss 10(1) and 13 of the Limitation of Actions Act 1974 (Qld) ('Limitations Act'). In response, the mortgagees' successors relied upon cl 24 of the mortgages. The mortgagors contended that cl 24 was void or unenforceable because it was contrary to the public policy manifested in the Limitations Act against the contracting out of its terms, or the public policy of the common law itself.
2. The High Court rejected that contention, in three separate judgments with somewhat different emphases. In summary:

(a) Kiefel CJ and Edelman J held that a policy of finality of litigation underpins statutory limitation periods, and that such provisions 'are conducive to the orderly administration of justice and are in the public interest, as it may be expected many statutes are'.[422] However, they observed that the issue is not whether the provisions are 'beneficial to the public', but whether the benefit 'is personal or private or whether it rests upon public policy or expediency'.[423] They concluded that a limitation provision is not 'dictated by public policy to the exclusion of individual rights' and that 'the benefit conferred by statute on a defendant was of a nature that it can be given up'.[424] > > (b) Gageler and Gordon JJ 'substantially agreed' with Kiefel CJ and Edelman J, but added their own reasons.[425] They observed that the Limitation Act contained no express prohibition on contracting out, and held that, read as a whole, the Act did not compel any different conclusion.[426] They said this:

The way that ss 10 and 13 of the Limitation Act give effect to the Act's legislative purpose of ensuring finality in litigation - a legitimate public policy objective - is by conferring a right on an individual defendant in a particular case to elect to plead a limitation period. Once this is properly understood, enforcing a contractual agreement not to plead a limitation period is entirely compatible with the terms of the Limitation Act and the policy underpinning it: because it is always left to an individual to choose whether to forgo the right conferred by statute.[427]

(c) Steward J 'substantially' agreed with Kiefel CJ and Edelman J and with Gageler and Gordon JJ, but also added his own reasons.[428] He held that, once it is accepted that the policy of finality in litigation is one that is statutorily entrusted to each defendant, it follows that the limitation defences may be waived. It also follows, as a matter of logic and principle, that a party may agree to promise not to invoke those defences as part of the contractual bargain.[429] In response to the public policy argument, he said this:

The proposition that because the Limitation Act serves, in part, a public policy - viz finality in litigation - the effect of its provisions cannot be adjusted or disturbed by contract, is not correct. The contention ignores the legislative choice made to implement that policy, which is to confer, effectively, an option on defendants either to invoke or not to invoke the benefits of the Limitation Act. In other words, the legislature has chosen to serve the public policy through the conferral of purely private benefits. In that sense, the benefits of the Limitation Act can correctly be seen as purely private in nature.[430]

1. The Viterra Parties contended that the reasoning in each of these judgments was applicable to s 236 of the Australian Consumer Law.
2. It is true that, if considered in isolation, it might appear that s 236 is on all fours with the limitation provisions concerned in Price v Spoor. Thus, to adapt Steward J's language, it could be said that the legislature has chosen to implement the policy in question by conferring on a party an option to invoke or not to invoke the remedy for which the section provides. Or, to adapt the language of Gageler and Gordon JJ, the way that s 236 gives effect to the Australian Consumer Law's legislative purpose of prohibiting misleading or deceptive conduct - a legitimate public policy objective - is by conferring a right on an individual person in a particular case to choose to make a claim for damages. So understood, enforcing a contractual agreement not to make such a claim could be said to be compatible with the terms of the Australian Consumer Law and the policy underpinning it, because it is always left to an individual to choose whether to exercise or to forgo the right conferred by statute.
3. However, we consider that, properly analysed by reference to its place in the statutory scheme effected by the Australian Consumer Law, s 236 of the Australian Consumer Law is fundamentally different from the provision considered by the High Court in Price v Spoor.

Why s 236 of the Australian Consumer Law is different from a limitation of actions provision

1. We accept that an order for damages under s 236 is in the nature of a benefit to the individual who obtains the award of damages. And we accept that a person affected by misleading or deceptive conduct may choose not to pursue a remedy under that section. However, as Westfield makes clear, neither of those matters is determinative of whether a person can contract with another person not to exercise that remedy such that the other person can enforce that agreement, as a matter of contract law.[431] In our opinion, when the provisions of the Australian Consumer Law are considered as a whole, it is apparent that the legislature has selected a range of mechanisms by which the public interest in preventing misleading or deceptive conduct is to be achieved - one such mechanism being the remedy for which s 236 provides. Adapting what was said by the Full Court of the Federal Court in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations ('Tobacco Institute'),[432] in a passage quoted with approval by Gummow J in Marks,[433] what follows from the conjunction between s 18 and the remedial provisions (including s 236) is not simply the imposition of a duty upon particular persons in respect of misleading or deceptive conduct, coupled with a right to enforce that duty, vested in those persons to whom the duty is owed. The Australian Consumer Law has as a primary objective the protection of perceived public interests, and there is a 'complex interrelation' between s 18 and the remedial provisions of pt 5‑2.
2. In our opinion, it is not appropriate to separate out s 236 from the suite of remedies Parliament has provided in relation to a contravention of s 18. Section 236 is not divisible from the provisions that engage it; rather, it is inextricably entwined with those provisions, including s 18. In that regard, if it is the policy of the statute that s 18 (and other norms of conduct) cannot be contracted out of, which was common ground, then it is equally the case that the remedies that follow a contravention cannot be contracted away.
3. The inextricable link between the norm found in s 18 and the remedy available under s 236 is made clear by Gleeson CJ's observations in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd:

The relationship between conduct of a person that is in contravention of the statute, and loss or damage suffered, expressed in the word 'by', is one of legal responsibility. Such responsibility is vindicated by an award of damages. When a court assesses an amount of loss or damage for the purpose of making an order under s 82, it is not merely engaged in the factual, or historical, exercise of explaining, and calculating the financial consequences of, a sequence of events, of which the contravention forms part. It is attributing legal responsibility; blame. This is not done in a conceptual vacuum. It is done in order to give effect to a statute with a discernible purpose; and that purpose provides a guide as to the requirements of justice and equity in the case. Those requirements are not determined by a visceral response on the part of the judge assessing damages, but by the judge's concept of principle and of the statutory purpose.[434]

1. The remedies are properly seen as a collection of mechanisms by which the Parliament has sought to make effective various norms of conduct set out in the Australian Consumer Law, including but not limited to the prohibition in s 18. In that regard, the remedies themselves play an important role in achieving the Act's purposes. In Henville v Walker, McHugh J noted that 'the objects of the Act indicate that a court should strive to apply s 82 [of the TPA] in a way that promotes competition and fair trading and protects consumers'.[435] In light of this, his Honour held that an applicant's negligence should not diminish the quantum of damages available to them, stating: '[The Act's] purposes are more readily achieved by ensuring that consumers recover the actual losses they have suffered as the result of contraventions of the Act'.[436]
2. The remedies in the Australian Consumer Law provide for a variety of potential consequences for contravention of the various norms of conduct. The efficacy of s 18 would be undermined by removing from the collection of mechanisms one of those remedies.[437] That is particularly so in a context where it is unlikely that the regulator would be able to step in and respond to every alleged contravention of s 18.[438] Even where an alternative remedy, such as an injunction, may be available, including at the hands of the regulator, the recovery of actual loss by an individual 'may render the statutory remedy even more complete'.[439]
3. In our opinion the legislature can be understood as having selected, as one of the enforcement mechanisms for s 18, the bringing of a private action for damages, by a person with an interest in bringing such an action. That remedy is a powerful tool for the enforcement of the norm of conduct found in s 18, and an important part of the scheme Parliament has adopted. As the Full Court of the Federal Court observed in Tobacco Institute, in relation to s 80 of the TPA (concerning injunctions):

Undoubtedly, contravention of s 52 may have an impact not only upon the public interest but upon private rights, and what the Parliament has done in s 80 is to provide the means for the vindication of the public interest at the private expense of the litigant who vindicates his private rights concurrently with the public interest ... .[440]

1. We observe that it might be said that an injunction ordered pursuant to s 232 is 'in its nature, one for the protection of public interest',[441] whereas an award of compensatory damages is, on its face, a benefit to an individual. However, as in Westfield, the intention of the legislative scheme, considered as a whole, is that it is in the public interest that consumers are provided the right to seek damages for loss and damage suffered.
2. That is, contrary to the Viterra parties' submissions, an award of damages under s 236 is not solely for the private benefit of the claimant. It is also for the benefit of the community generally. The removal of the remedy found in s 236, by permitting a person to agree, by way of an enforceable contract, not to pursue an action for damages, would in our opinion undermine the efficacy of s 18 and the purposes of the Australian Consumer Law in prohibiting that form of conduct in trade and commerce.
3. The interconnectedness of the remedy in s 236 and the norm of conduct in s 18, to the breach of which the remedy is directed, is an important difference between s 236 and the limitation provisions in issue in Price v Spoor. Limitation provisions are not inextricably linked to a particular substantive norm of conduct. They are not enacted as a statutory mechanism by which a specific statutory prohibition is to be made efficacious. Rather, they are better characterised as directed to a more general objective of finality of litigation. True it is that there is a public interest in finality of litigation; but as Kiefel CJ and Edelman J observed, many (if not all) statutes are enacted in the public interest. That public interest is quite different from the selection of a remedy, enforceable at the suit of an individual, as a mechanism to ensure the efficacy of a substantive norm of conduct, such as that found in s 18.

Two further responses to the Scruby and Heydon articles

1. It is necessary to respond to two further matters raised in the Scruby and Heydon articles. First, we note that Scruby contends that Henjo and IOOF 'cannot stand' in the light of Miller v Miller, Equuscorp and (perhaps) the authorities that emphasise freedom of contract (discussed above). Miller v Miller was not, of course, a case concerning the enforcement of contractual terms, it was a case concerning whether an offender owed to a co-offender a duty to take reasonable care. However, it contained a discussion of the 'third category' identified in Yango, by way of analogy. The plurality's articulation in Miller v Miller of the principles applicable in the context of the third category (to which reference is made earlier in these reasons) is, in our opinion, entirely consistent with the conclusion we have reached.
2. Further, Cargill submitted, and we accept, that Scruby's view is incorrect when one has regard to the reasoning of the plurality in Westfield. In that case, when explaining the third category of unenforceable contracts their Honours referred to Miller v Miller and Equuscorp in support of the proposition that such arrangements are ineffective or void 'even in the absence of a breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text'.[442] Thus neither of those cases undermine Henjo. To the contrary, they support it in so far as they confirm the public policy principle (although they do not confirm that the proper analysis of either the TPA, or the Australian Consumer Law, is such as to engage the third category). And, for the reasons we have already given, we do not think that statements in disparate cases concerning the importance of freedom of contract lead to the conclusion that Henjo 'cannot stand'.
3. Secondly, both the Scruby and Heydon articles referred to the existence of the broad power in s 237 for a court to 'make such ... orders as the court thinks appropriate' (including a power to vary or avoid contracts[443]) in the event that a person has suffered loss or damage as a consequence of misleading or deceptive conduct. The argument was that, if those powers were not exercised by a court to avoid or remove an exemption clause, then 'it is hard to see how public policy can have any further role to play'.[444] There is, in our opinion, a significant flaw in this argument. It appears to assume that a person cannot contract out of s 237, and thus would remain able to bring a proceeding seeking to avoid or vary a contract containing an exclusion clause. But, if their approach to the public policy issues were to be adopted, it is not clear that is correct. If a person can contract out of s 237, all that remains is that the regulator can bring a proceeding to vary a contract. That would significantly weaken the enforcement regime for which Parliament has provided (for the reasons already discussed). Alternatively, if a person cannot contract out of s 237, why is that so? It must be for public policy reasons - in which case the question arises as to why s 237 is different from s 236. These issues were not addressed in the Scruby or Heydon articles.

The Henjo principle, IOOF and prospective 'contracting out'

1. As the Viterra Parties emphasised, the contractual clause in issue in Henjo was one found in a contract that was itself induced by misleading or deceptive conduct; and that is not this case (insofar as cl 10.3 is concerned). However, we further consider that, once the public policy analysis above is accepted, it must follow that a party cannot 'contract out' of s 236 in advance of any misleading or deceptive conduct having occurred. IOOF so held, and we agree with the reasoning there articulated. That is, it would be strange if a party could avoid the operation of s 236 by contracting in advance that the other party would not bring proceedings under that section. That would permit private parties to undermine the operation of s 18, by removing an important aspect of its enforcement, albeit in advance of any contravention. Thus, if accepted, the Viterra Parties' approach would undermine the important public policy of ensuring the fair treatment of those engaged in trade and commerce.
2. In that regard, we accept Cargill's submission that to permit a 'prospective' exclusion clause would create an unprincipled distinction between waiving liability for past misleading or deceptive conduct, and waiving liability for future misleading or deceptive conduct, for which there is no sound reason in policy. The policy considerations identified above apply whether or not the contract in question was entered into before or after the occurrence of the contravening conduct.
3. We observe that this does not mean that a party cannot compromise a claim, or potential claim, based upon a breach of s 18 of the Australian Consumer Law. A person can release another person from liability in a settlement agreement, as discussed in the review of the authorities. But that is not what cl 10.3 seeks to do. Clause 10.3 does not seek to compromise a claim, or potential claim, for misleading or deceptive conduct under the Australian Consumer Law. It seeks to prevent liability for such a claim ever arising. We consider that this is something that cannot be done for public policy reasons, as explained above.

4. In the light of the above analysis, we have concluded that the Full Court of the Federal Court was correct in Henjo to conclude that liability for misleading or deceptive conduct - including the right to an award of damages under s 236 - cannot be ousted by private agreement, and correct in IOOF to conclude that the public policy principle applies to a clause in a contract not itself induced by the misleading or deceptive conduct.
5. Given that, we consider that cl 10.3 of the Confidentiality Deed is unenforceable to the extent that it purports, as a matter of legal operation, to preclude Cargill Australia from seeking and obtaining a remedy under s 236 of the Australian Consumer Law. Of course, in the light of the review of the authorities undertaken above, cl 10.3 retains an evidentiary role in determining whether the pleaded representations were made, whether they were misleading or deceptive, and whether Cargill relied upon them. These issues are discussed when we deal with Ground 6.
6. Ground 1 of the appeal thus fails.
   • (9) Ground 2: Is cl 10.3 of the Confidentiality Deed unenforceable in relation to deceit?
7. It was common ground that a contractual clause procured by fraud cannot be relied upon as an answer to a claim founded on that same fraud. The issue raised by ground 2 is whether, as a general proposition, a party can contract out of liability for fraud where the contract itself is not procured by fraud. Cargill accepted that cl 10.3 was not procured by fraud.

8. The Viterra Parties submitted that the judge's reliance upon Commercial Banking was misplaced as that case does not stand for the proposition that fraud cannot be contracted out of even where the contract was not itself procured by fraud. Cargill correctly conceded that that was so.
9. The Viterra Parties submitted that, in the absence of authority for a public policy prohibition against contracting out of fraud generally, the relevant principles are as follows:

(a) Party A may release Party B from any liability for claims in deceit.[445] > > (b) Party A may release Party B before a breach of contract or any other facts giving rise to a dispute.[446] > > (c) Party A may release Party B from any liability for claims of which Party A is not aware at the time that the release is given.[447]

10. The Viterra Parties submitted that whether a clause has one or more of the three effects listed above is a matter of construction. They submitted that the primary judge correctly construed cl 10.3 as having all three of these effects.
11. The Viterra Parties submitted that there is authority tending against the proposition that, as a matter of public policy, cl 10.3 is unenforceable against deceit claims. The Viterra Parties referred to Grant, and submitted that that case illustrated that the correct approach to considering whether a release clause is unenforceable for being 'unconscionable' is to consider, amongst other things, the 'subject matter' of the release, and whether the defendant was being opportunistic by relying upon the release. They submitted that this approach had nothing to do with 'public policy'.
12. The Viterra Parties acknowledged that Grant was not a case concerning fraud. However, they cited and relied upon the authorities from the United Kingdom previously referred to for the proposition that release clauses may, if properly drawn, be effective in relation to fraud claims.
13. Cargill submitted that the principles cited by the Viterra Parties were inapplicable to cl 10.3, because cl 10.3 was not a true 'release' clause. Cargill submitted that cl 10.3 did not settle any dispute. They submitted that cl 10.3 was properly characterised as an exclusion clause.
14. Cargill submitted that different public policy considerations apply depending on whether the clause is a 'true' release or an exclusion clause. This Court's comments in MBF Investments were cited for that proposition.[448]
15. Cargill relied upon Pearson and HIH v Chase. They submitted that Pearson stood for the proposition that a party cannot contract out of liability for its own fraud. They submitted that HIH v Chase affirmed the generality of this rule, and that their Lordships' approval of the rule did not turn on whether the exclusion clause was in the contract procured by fraud. Rather, Cargill submitted, the rule was based on the 'common law's intolerance of fraud as a matter of public policy'.
16. Cargill submitted that this rule, in all its generality, also applied in Australia, citing Scarborough[449] and Onley.[450]
17. Finally, Cargill referred to authorities from New Zealand,[451] Canada,[452] and the United States[453] in support of their submissions about the rule and its generality.

18. As the authorities previously referred to demonstrate, there is a public policy prohibition on a party contracting out of liability for its own fraud: Pearson, HIH v Chase, Onley and Scarborough. The judge held that cl 10.3 was not effective in relation to deceit claims for that reason.
19. We agree that cl 10.3 is not effective in relation to the deceit claims against Glencore or Viterra[454] in relation to their own frauds. In our opinion that follows from the authorities discussed above. At the risk of repetition, we refer in particular to the following statements:

(a) 'no one can escape liability for his own fraudulent statements by inserting in a contract a clause that the other party shall not rely upon them' (Lord Loreburn LC in Pearson[455]); > > (b) '[t]here is no doubt that a party cannot contract that he shall not be liable for his own fraud' (Lord Hoffman in HIH v Chase[456]); and > > (c) 'public policy prevents contracting parties excluding liability for their own fraud' (the Full Court of the Federal Court in Onley[457]).

20. The Viterra Parties submitted that there was no authority for the proposition that a contract not itself induced by fraud can be void or unenforceable on public policy grounds. That is, they sought to confine the ambit of the principle by reference to the circumstances in which it had been applied in the decided cases, which all concerned exclusion clauses in contracts induced by fraud.
21. We reject that approach. The statements in the authorities are, in our opinion, deliberately broad in scope and capable of applying to an attempt to contract out of fraud in advance, as well as after the fraud has been committed. The public policy underpinning the law's attitude to fraud supports that conclusion. Indeed, a prospective contracting out of fraud is, in some respects, more antithetical to that public policy than a retrospective contracting out, because a prospective provision seeks, in effect, to establish a zone of lawlessness, in which a party may defraud another party at will, without consequences (subject to any relevant statutory provisions). We do not consider that the law has, or should, countenance such a state of affairs.
22. We observe that, for the reasons previously set out, this does not mean that a party cannot settle a claim, or potential claim, based upon fraud. As discussed above, a person may compromise a claim that cannot itself be contracted out of, by appropriately clear language in a settlement agreement. That was what the contracts in issue in the United Kingdom cases upon which the Viterra Parties relied sought to do.[458] But that is not what cl 10.3 seeks to do. The United Kingdom authorities are thus irrelevant to the present analysis. Clause 10.3 does not seek to settle a claim, or potential claim, for fraud. It seeks to prevent liability for such a claim ever arising. On the relevant authorities, this is something that cannot be done for public policy reasons.
23. In that regard, we do not accept the contention that Party A may release Party B from a claim in fraud before any facts have occurred giving rise to a dispute. Viterra cited Mac Developments (Gold Coast) Pty Ltd v Rams Financial Group Pty Ltd ('Mac Developments')[459] as authority for that proposition.
24. Mac Developments was a first instance decision of Margaret Wilson J in the Queensland Supreme Court concerning the construction of a deed of settlement entered into between a franchisee and a franchisor. The franchisor had engaged, and was continuing to engage, in a course of conduct which the franchisee claimed was in breach of the franchise agreement. A settlement agreement was entered into. The relevant issue was whether that agreement covered conduct in which the franchisor continued to engage after the settlement agreement. The relevant principle was stated by the trial judge as follows:

Parties to a dispute about a continuing course of conduct may enter into a compromise agreement not only with respect to past breaches, but also with respect to future breaches. The ambit of a compromise agreement necessarily turns on its proper construction.[460]

1. Mac Developments thus does not support the proposition advanced by the Viterra Parties on the appeal. It may be distinguished because at the time the Confidentiality Deed was executed the parties were not in a dispute about anything, and the Confidentiality Deed did not involve an agreement to compromise a dispute.
2. We did not consider the comparative material from New Zealand, Canada and the United States, to which Cargill referred, to be of assistance. We observe that the extract from The Laws of New Zealand referred to Pearson in relation to the common law, but then considered the operation of the Contract and Commercial Law Act 2017 (NZ), which has substantially modified the common law[461] (as Cargill accepted). The American authorities concern a set of jurisdictions that differ too greatly from each other, and from the Australian common law. And the Canadian authorities to which we were referred did no more than affirm Pearson, in relation to the effect of fraud on a clause in a contract induced by the fraud.[462] They did not grapple with a clause that purports prospectively to release liability for fraud.
3. One final observation is apposite. A contractual provision seeking to preclude liability for events which have not yet arisen may, in a particular context, be described as a 'release',[463] but the issues of construction in such a situation are quite different to those which apply in relation to settlement agreements, where the relevant considerations are those set out in Grant.
4. Ground 2 of the appeal thus fails.
   • (10) Contention 1: Construction of cl 10.3 of the Confidentiality Deed
5. By ground 1 of the notice of contention, Cargill contended that, properly construed, cl 10.3 of the Confidentiality Deed did not operate on liability for fraud or deceit or misleading or deceptive conduct and, as a consequence, was not a defence to its claims.[464] Given our views about grounds 1 and 2, to the effect that as a matter of law cl 10.3 cannot be effective to exclude liability for fraud or deceit or misleading or deceptive conduct, it is not strictly necessary for us to address ground 1 of the notice of contention. However, since the issue was fully argued before us, we will address it briefly, for completeness.
6. It is appropriate to consider the construction of cl 10.3 in relation misleading or deceptive conduct, on the one hand, and fraud or deceit, on the other hand, separately.

(a) Does cl 10.3 purport to exclude liability for fraud?

1. Cargill relied upon HIH v Chase for the proposition that general words will not preclude liability for fraud, and that 'clear and unmistakable terms' must be used. Cargill submitted no such words are to be found in cl 10.3. Cargill submitted that there are matters that indicate that cl 10.3 does not, as a matter of construction, preclude liability for fraud.

(a) First, cl 10.2 contains an express carve-out, the effect of which is to permit proceedings to be brought for fraud in respect of the Confidential Information. They submitted that if cl 10.3 were to release claims for fraud, then the express carve-out in cl 10.2 would be rendered otiose. > > (b) Secondly, cl 10.3 contains the word 'misrepresentation', but that word is not qualified in any way - for instance, it is not preceded by the word 'fraudulent'. Cargill submitted that commercial people would recognise that there is a material difference between misrepresentation and fraud. > > (c) Thirdly, Cargill submitted that parties can be taken to have held an assumption of honest dealing when contracting, relying again on HIH v Chase, and that this bore upon the construction of cl 10.3.

2. Cargill further submitted that, if the actual intention of the releasor is a relevant consideration, 'it is clear beyond any reasonable doubt' that Cargill did not subjectively intend to release the Viterra Parties from claims for future fraudulent conduct which could cause Cargill significant loss.
3. In contrast, the Viterra Parties contended that, read literally and according to the plain meaning of its terms, cl 10.3 extended to claims based on fraud. In summary, they submitted that cl 10.3 is drawn widely; that it refers to 'any misrepresentation'; that it is subject to an express carve-out in the form of cl 10.4, and does not specify any other exclusions; and that it should be read in the light of cl 10.2, which does contain an express carve-out for fraud and wilful misconduct.
4. In response to Cargill's submission that clear words are needed to exclude liability for fraud, the Viterra Parties submitted that there is no rule to this effect. The Viterra Parties relied upon MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) ('MWH Australia'), where Buchanan and Nettle JJA said that although in the past, clear words were necessary to exclude liability for negligence, this is no longer the case in the light of modern High Court authority.[465] Relying upon authorities from the United Kingdom decided since HIH v Chase, being Maranello[466] and Solland v Watkins ('Solland'),[467] the Viterra Parties submitted that the same is true for fraud.
5. In response to Cargill's submission about cl 10.2 being rendered otiose, the Viterra Parties submitted that cls 10.2 and 10.3 were not co-extensive. That is, they covered different fields. The Viterra Parties submitted that there is a difference between a release (cl 10.3) and a covenant not to sue (cl 10.2). They submitted, by way of example, that the carve-out in cl 10.2 would have been relevant if Cargill had commenced proceedings to rescind the Acquisition Agreement for fraudulent misrepresentation. They submitted that because the relief in such a proceeding would not have been directed to establishing 'liability', cl 10.3 would not have been engaged and the carve-out in cl 10.2 would have applied.
6. The Viterra Parties focused on the words 'any liability' and 'any misrepresentation or any other cause' in cl 10.3. They submitted that the word 'any' is of the widest import,[468] and there was no valid basis for reading down 'any misrepresentation' to mean only some misrepresentations; likewise for 'any other cause'.
7. As to Cargill's submission about a presumption of honest dealing between the parties, the Viterra Parties submitted that this was at best a contextual factor which, alone, could not displace the plain meaning of the words of cl 10.3.
8. The Viterra Parties submitted that whether the releasor's actual intention could be taken into account was an unsettled question of law. In any case, they submitted that Cargill had never advanced a case based on an 'equitable construction' of cl 10.3, and Cargill had led no evidence as to the releasor's subjective intention.

1. Cargill contended, and we accept, that the approach to construction adopted in the cases concerning the purported exclusion of liability for the fraud of an agent is apt to apply in considering whether cl 10.3 should be construed so as to exclude liability for fraud. As discussed above, in the review of the authorities, that approach requires clear and unmistakable language in order to exclude liability for fraud, so that the other party is aware of the 'extraordinary bargain' they are being invited to make.[469] General words will not be sufficient.[470] Indeed, Lord Hoffman suggested that express words are required.[471]
2. If express words are required, then it is plain that cl 10.3 does not purport to release[472] Glencore and its representatives from liability for fraud, for it does not expressly refer to fraud or dishonesty at all. As noted above, the Viterra Parties referred to two United Kingdom cases in support of a submission that there is no rule of law requiring express words in order to release a party from liability for fraud: Maranello (a decision of a single judge of the High Court of Justice) and Solland (a decision of a Deputy Master of the High Court of Justice). Those cases concerned releases in the context of the settlement of a dispute. That context is important, because there has never been any doubt that a party can settle a claim or potential claim for fraud, provided it is sufficiently clear that that was the parties' intention, as expressed in the words they used in the relevant context.[473] In contrast, when cl 10.3 was agreed, there was no dispute.
3. As touched on above, there may be a divergence between the Australian authorities on the construction of releases in a settlement agreement (as explained by the High Court in Grant) and the United Kingdom authorities on that issue (as reflected in BCCI v Ali[474]). However, it is not necessary to consider whether that is so. We accept that there is no rigid rule that requires, in all cases, the use of express words in order to release a person for fraud. In our opinion the appropriate question is whether the words in question clearly and unambiguously convey to the reader that the clause will operate to exclude liability for fraud or deceit. That may occur through the use of express terms such as 'fraud', but it may also occur as a consequence of the proper construction of the clause, in the context in which it is found and, in the context of the nature of the dispute being settled.[475]
4. Returning to cl 10.3, the objective of that clause was not to 'release' a party from a known or apprehended existing liability, it was to prevent any such liability arising. The applicability of authorities concerning settlement agreements is thus tangential, at best. It is therefore squarely within the terms of what was said on issues of construction in HIH v Chase and later cases to the same effect.
5. Assuming that express words are not required, the question then is whether, construed in context, cl 10.3 contains clear and unmistakable language excluding liability for fraud. We consider that it does not.
6. The Viterra Parties submitted that cl 10.3 ought to be construed to encompass fraud for four reasons:

(a) its language is broad and is capable of encompassing fraud-based claims; > > (b) it expressly refers to claims based on 'misrepresentation', without qualification such as 'negligent' or 'innocent'; > > (c) it contains an 'express carve-out' for claims within the scope of cl 10.4, but no other exclusions; and > > (d) the relevant context includes cl 10.2, which expressly carves out claims based on 'fraud or wilful misconduct'.

7. The first three reasons are unpersuasive, and fail to reflect the insistence in the authorities on 'clear and unmistakable language', and the proposition that general words will not suffice. The terms of cl 10.3 are expressed widely, but they do not refer to dishonesty or fraud, either expressly or by implication. The breadth of the language and the reference to misrepresentations is apt to capture errors and omissions, even negligent errors and omissions. But, as the House of Lords has stated, parties contract with one another 'in the expectation of honest dealing'. In the absence of words which are clearly apt to encompass dishonesty, underlying the contractual arrangements is 'a common assumption that the persons involved will behave honestly'. Commercial parties might be taken to understand that in the course of a negotiation things might be represented which are inaccurate, which are negligent, which are exaggerated, which amount to 'puffery', or which might be hard to justify. They do not usually have in contemplation that they will be deliberately defrauded. In order for a provision to cover such a situation, words which alert the other party to the 'extraordinary bargain' proposed to be entered into are required. In our opinion, such words do not appear in cl 10.3.
8. As for the fourth reason, it is true that cl 10.2 contained an express carve-out permitting a party to institute proceedings where there has been fraud or wilful misconduct. But that does not, in our opinion, suffice to make clear that cl 10.3 operates to release Glencore and its representatives from any claim based on fraud.

(a) First, the carve-out in cl 10.2 tends to confirm to the reasonable commercial reader that claims based on fraud will be maintainable. It does not put the reader on notice that such claims are to be excluded elsewhere under the Confidentiality Deed. In that regard, it is notable that the only reference to fraud in the Confidentiality Deed is a reference that permits such claims. > > (b) Secondly, if cl 10.3 operates to release Glencore from liability for fraud, then that leaves no work for the carve-out in cl 10.2 to perform; for if cl 10.3 releases Glencore from liability for fraud, then the institution of proceedings for fraud, as permitted by cl 10.2, would be futile.

9. The Viterra Parties sought to refute this second proposition by pointing to the fact that cl 10.2 is in terms directed only to fraud by Glencore (and not to fraud by its representatives). But that does not alter the fact that cl 10.3 purports to release Glencore from liability for fraud (as well as its representatives). They also contended that there could be proceedings that could be instituted under the carve-out from cl 10.2 that do not involve 'liability' on the part of Glencore, such as seeking to have a contract rescinded. However, in our opinion that is a narrow and strained reading of 'liability'. Rescission for fraudulent misrepresentation would require repayment of the purchase money. That must be a 'liability' arising 'directly or indirectly' from the misrepresentation. In any event, even if it be accepted that the carve-out in cl 10.2 is left with some work to do, we nonetheless consider that the reference to fraud in cl 10.2 is insufficient, alone, to clearly indicate that cl 10.3 embodies the 'extraordinary bargain' of releasing Glencore and its representatives from any liability for fraud.
10. Accordingly, we do not consider that, as a matter of construction, cl 10.3 covers claims for fraud or deceit.

(b) Does cl 10.3 purport to exclude liability for misleading or deceptive conduct?

11. Again, it is not strictly necessary to consider this aspect of the notice of contention, but we will make some remarks for completeness.
12. In contrast to our view about the construction of cl 10.3 in relation to the exclusion of fraud, we consider that, properly construed, cl 10.3 does purport to exclude liability for misleading or deceptive conduct under s 18 of the Australian Consumer Law. That is because it applies in terms to exclude liability for 'any misrepresentation'. That term is apt to encompass misleading or deceptive conduct falling within s 18, because such conduct does not require dishonesty; misleading or deceptive conduct encompasses innocent misrepresentations.
13. Cargill sought to draw an analogy between the exclusion of liability for fraud or deceit and the exclusion of liability for misleading or deceptive conduct, and suggested that if the clause did not, properly construed, purport to exclude liability for fraud or deceit then the same result ought to be applied in relation to a claim for misleading or deceptive conduct under s 18. They further sought to support that construction by reference to the important public policy underpinning s 18. We do not accept that argument because, as noted above, s 18 encompasses non-fraudulent misrepresentations, so that the analogy does not hold. Nor do we think that the public policy argument assists, given that we are, in the present context, analysing s 18 on the basis that there is no public policy exception that precludes persons from contracting out of s 236 of the Australian Consumer Law.
14. Cargill also advanced, as a fall back submission, a narrower proposition, to the effect that cl 10.3 would not exclude liability 'in the event and to the extent that the conduct covered by s 18 is in fact sufficiently analogous to a fraud, in that there is an intent involve[d], even though, for instance, it might not be necessary to establish liability under the section'. That is, cl 10.3 would be effective to exclude liability for a claim under s 18 based on an innocent misrepresentation, but ineffective to exclude a subset of claims under s 18, namely dishonest misleading or deceptive conduct claims. We do not accept that cl 10.3 ought to be interpreted in that fashion. It is artificial to construe the clause in such a manner so as to permit some claims under s 18 but to exclude others. It leaves a degree of uncertainty about the operation of the clause in varying circumstances. Indeed, Cargill quite properly accepted as much, observing that it leaves 'a commercial person reading the document ... to guess that forms of action under the ACL which are analogous to deceit and dishonesty aren't affected by this exclusion but other forms are', and described it as an 'arcane distinction'. In our opinion, cl 10.3 is either effective, as a matter of construction, to exclude claims under s 18, or it is not.
15. For the reasons given above, we have concluded that, as a matter of construction, cl 10.3 would extend to claims under s 18 for misleading or deceptive conduct; however, we have, of course, concluded that it is not effective in that regard, as a consequence of the public policy principle established in Henjo.
    • (11) Remaining grounds and contentions concerning the Financial and Operational Performance Representations
16. Grounds of appeal 1, 2, 4, 5, 6, 7 and 8, and the three contentions, all concern the significance and operation of disclaimers in relation to the Financial and Operational Performance Representations. We have dealt with grounds 1 and 2 and contention 1. The remaining grounds concerning the Financial and Operational Performance Representations are the following.
17. The Viterra Parties (all four applicants including Glencore) contend that the judge made errors in concluding that the claims for misleading or deceptive conduct under s 236 of the Australian Consumer Law founded on the Financial and Operational Performance Representations should succeed, in that he:
    • failed to properly consider the Sale Process Disclaimers and thereby failed to consider and assess the conduct as a whole: ground 6; and
    • failed to properly consider the Sale Process Disclaimers and thereby, for that and other reasons, erroneously concluded Cargill Australia had relied upon the Financial and Operational Performance Representations: ground 8.
18. Viterra only (Glencore not being a party to the Acquisition Agreement) contend that Cargill Australia's claims under s 236 of the Australian Consumer Law founded on the Financial and Operational Performance Representations ought to have failed by reason of cl 15.4(b) of the Acquisition Agreement: ground 4 and contention 2.
19. Viterra contend Cargill Australia's claims in deceit founded on the Financial and Operational Performance Representations ought to have failed by reason of:

• the matters relied upon in grounds 6 (conduct as a whole) and 8 (reliance);
  • clause 15.4(b) of the Acquisition Agreement: grounds 5 and contention 2;
  • a failure to prove the requisite subjective intent: ground 7.

• (12) Ground 6: Financial and Operational Performance Representations - conduct as a whole

20. By ground 6, the Viterra Parties contend that the judge erred in finding that the Financial and Operational Performance Representations had been made; and that they were false, and misleading or deceptive.

21. The Viterra Parties submitted that the judge erred by finding that the representations had been made without considering the Sale Process Disclaimers at the same time; and by finding that the representations were false, and misleading or deceptive, without considering the Sale Process Disclaimers at the same time.
22. The Viterra Parties relied upon Butcher and the High Court's emphasis on the need to examine the 'conduct as a whole', as opposed to analysing the conduct divorced from disclaimers and other circumstances which might qualify its character. They submitted a decision had to be made 'in one blow [as to] whether the representations were made and whether they were misleading or deceptive'. They submitted that by not adhering to these principles, the judge had committed an error of the kind identified by the New South Wales Court of Appeal in Ireland.[476]
23. The Viterra Parties submitted that relevant disclaimers were made prior to the matters relied upon by Cargill Australia (the Confidentiality Deed), as well as contemporaneously (the Information Memorandum and Management Presentation). They submitted that none of the matters relied upon could be properly understood other than in the context of these disclaimers.
24. The Viterra Parties submitted that the disclaimers conveyed that the materials were to help Cargill Australia decide whether it wanted to proceed in the sale process; and to make an Indicative Bid, rather than a binding offer. They submitted that the disclaimers were not intended to 'correct' the statements and information provided, but rather they clearly conveyed that no implied representations at all were made; and, to the extent that any express statements were made, the Viterra Parties did not 'vouch for' the accuracy or completeness of those statements.
25. The Viterra Parties referred to authorities from the United Kingdom, submitting that they supported a conclusion that sophisticated commercial parties may clearly state, and understand, that representations as to fact have not been made, or are not to be relied upon.[477] They submitted that whilst the judge had dismissed those authorities on the basis that different legislation applied in Australia, those authorities were nonetheless relevant when answering the questions of fact raised by the Australian Consumer Law.
26. The Viterra Parties relied upon various contextual factors, including that the sale of Joe White was a 'Wall Street deal'; that the parties were sophisticated, well-resourced and well-advised multinationals; that Cargill Australia knew Glencore had no experience in running a maltster and that it had not conducted vendor due diligence; that Cargill Australia knew Glencore was reliant upon Joe White for information; and that Cargill Australia understood that the Management Presentation was given by Joe White employees.
27. After the conclusion of oral argument, the Viterra Parties referred this Court to the decision of the High Court in Self Care IP Holdings v Allergan Australia Pty Ltd ('Allergan'),[478] which set out the relevant principles in relation to determining whether a person has breached s 18 of the Australian Consumer Law in the context of representations directed to consumers.
28. Cargill accepted that the judge took a 'staged approach' to considering whether the representations were made, but submitted that the judge did not fail to take into account the whole of the Viterra Parties' conduct.
29. Cargill submitted that neither Butcher nor Ireland precludes a court from considering whether a representation was made before characterising the representation as false, or misleading or deceptive. The Viterra Parties accepted that. The parties themselves had separated those two issues in the list of issues submitted to the judge (whether the representations were made was issue 15, and whether the conduct was misleading or deceptive was issue 16).[479]
30. Cargill submitted that what was done here was not like what had occurred in Ireland, where the trial judge had found that the conduct was misleading or deceptive, and had been relied upon, before having regard to the effect of the disclaimers. They submitted that no such error had occurred here.
31. In the course of oral submissions, senior counsel for Cargill accepted that the manner in which the judge dealt with this issue of whether the representations were made given the Sale Process Disclaimers was not always easy to follow, but he submitted that that was a consequence of the manner in which the issues had been presented to the judge and argued by the parties.
32. Cargill submitted that there was nothing wrong with the judge separately addressing the question of whether the express statements relied upon were capable of conveying, and did or would have conveyed, the implications alleged in a discrete manner before addressing the effect of the Sale Process Disclaimers. They submitted that it was clear that that was what the judge was doing in the first part of his treatment of issue 15. When he stated a conclusion that the representations had been 'made' for the first time, Cargill submitted that that was a conclusion about that part of the consideration. They submitted that it was clear that the judge had not concluded his treatment of the issue at that point and that he then did specifically consider the Sale Process Disclaimers. He understood that it was necessary to consider the conduct as a whole and that disclaimers could, in the words of McHugh J, whom the trial judge had quoted, 'eras[e]' what was misleading by 'modifying' the conduct.
33. The Court raised with senior counsel for Cargill para [3003] of the primary judgment. Potentially, there were two issues in relation to para [3003]. First, certain passages could be interpreted as asserting that disclaimers could not vary the relevant meaning of a representation. Secondly, if the judge accepted that disclaimers could vary the meaning, whether the judge had addressed the potential for that variation by a consideration of the specific disclaimers relied upon by the Viterra Parties.
34. Senior counsel for Cargill said that there were 'infelicities' of expression in para [3003], but submitted that the judge clearly understood the applicable principles. He had set them out a number of times, quoting extensively from McHugh J in Butcher. Cargill accepted that the judge had not addressed each alleged representation in the light of each disclaimer and that he had dealt with the effect of the disclaimers in a 'rolled up' way. In the circumstances, Cargill submitted that there was nothing wrong with the judge addressing the question in that way given the following considerations.
    • (1) Many of the disclaimers were not relevant to the issue of whether a representation had been made but were rather relevant to the issue of whether it had been relied upon. It was submitted that the submissions of the Viterra Parties often 'slid' between the issue of whether the representation was made and whether it was relied upon.
    • (2) In substance, the case put to the judge by the Viterra Parties at trial was that the effect of the disclaimers was to qualify what was said as being nothing more than a 'starting point'.
    • (3) Certain of the disclaimers were qualified by reference to the 'maximum extent permitted by law'.
    • (4) The foundation of the deceit, and of the misleading or deceptive conduct, was the Undisclosed Matters. By its nature, and in the circumstances here, the disclaimers could not 'erase' or 'modify' that conduct.
35. Senior counsel for Cargill placed particular emphasis on a submission that the case put to the judge by the Viterra Parties was that the effect of the disclaimers was that the relevant statements could not be relied upon as anything more than a 'starting point'. In that respect, senior counsel relied upon the Viterra Parties' closing submissions, and upon the judge's treatment of the 'starting point' contention.

36. In determining whether the Financial and Operational Performance Representations had been made, and whether they were misleading or deceptive, the judge was required to consider the conduct as a whole. The Viterra Parties contend he did not do so.
37. Three preliminary matters are important.
38. First, it is appropriate to note the principles set out by the High Court in Allergan:

Determining whether a person has breached s 18 of the ACL involves four steps: first, identifying with precision the 'conduct' said to contravene s 18; second, considering whether the identified conduct was conduct 'in trade or commerce'; third, considering what meaning that conduct conveyed; and fourth, determining whether that conduct in light of that meaning was 'misleading or deceptive or ... likely to mislead or deceive'.

The first step requires asking: 'what is the alleged conduct?' and 'does the evidence establish that the person engaged in the conduct?'. The third step considers what meaning that conduct conveyed to its intended audience. As in this case, where the pleaded conduct is said to amount to a representation, it is necessary to determine whether the alleged representation is established by the evidence. The fourth step is to ask whether the conduct in light of that meaning meets the statutory description of 'misleading or deceptive or ... likely to mislead or deceive'; that is, whether it has the tendency to lead into error. Each of those steps involves 'quintessential question[s] of fact'.

The third and fourth steps require the court to characterise, as an objective matter, the conduct viewed as a whole and its notional effects, judged by reference to its context, on the state of mind of the relevant person or class of persons. That context includes the immediate context - relevantly, all the words in the document or other communication and the manner in which those words are conveyed, not just a word or phrase in isolation - and the broader context of the relevant surrounding facts and circumstances. It has been said that '[m]uch more often than not, the simpler the description of the conduct that is said to be misleading or deceptive or likely to be so, the easier it will be to focus upon whether that conduct has the requisite character'. That said, the description of the conduct alleged and identified at the first step should be sufficiently comprehensive to expose the complaint, because it is that conduct that will ultimately, as a whole, be determined to be or not to be misleading or deceptive.[480]

1. Secondly, in the present case the third and fourth steps are to be undertaken bearing in the mind the authorities concerning the evidentiary effect of disclaimers. The disclaimers in Ireland and in Butcher had the effect of altering the content of what was conveyed so as to render the message truthful. In Ireland, the disclaimer changed what would otherwise have been a statement of fact into a statement of opinion. Considering the conduct as a whole, the relevant representation was an opinion as to the bull's sire, not a statement of fact. The statement of opinion was true: it was the representors' opinion. Similarly, in Butcher, consideration of the conduct as a whole led to the conclusion that the implied representation in the brochure as to the pool's position was not a statement of fact by the agent, but a statement that that was what the agent had been told by others. That was true: it was what the agent had been told.
2. No alteration of this kind to the content of the message was contended for by the Viterra Parties here. They did not contend that the judge should have found that any representation was made which was, by reason of disclaimers, in fact true.
3. As to the effect of the disclaimers, two relevant contentions have been advanced by the Viterra Parties. The first is that the effect of the disclaimers is that no implied representations were made and that the Viterra Parties did not 'vouch for' the accuracy or completeness of any express representations. The second is that, if representations were made, they were merely a 'starting point'. As will be seen, senior counsel for Cargill's submission that the case put to the trial judge on this issue by the Viterra Parties was founded upon, or at least emphasised, the second approach was well founded. Before us, the Viterra Parties advanced the first approach.
4. The third important matter is that the Financial and Operational Performance Representations were all alleged to be implied from express statements which had been made and from financial and operational performance information which had been provided. Thus, at some point the judge had to decide whether those implications were properly to be drawn, not just in the light of the Sale Process Disclaimers, but by reference to the express statements and other material relied upon. There is no reason why the judge could not address this issue discretely, provided he did not reach a final conclusion without considering the conduct as a whole.

1. The judge expressed a conclusion that the Financial and Operational Performance Representations had been 'made' at two points in his analysis.[481] He first determined whether the Financial and Operational Performance Representations were capable of being implied, and were implied, from the express representations which had been made and the information provided, apart from the Sale Process Disclaimers.[482] The Viterra Parties had discrete submissions on that issue which were unrelated to the Sale Process Disclaimers and which had to be addressed. The judge then turned to whether the Financial and Operational Performance Representations had been 'made' by reference to the Sale Process Disclaimers, addressing the submissions put by the Viterra Parties as to the effect of those disclaimers (and other matters including the Alleged Industry Practices).[483]
2. The Viterra Parties' closing submissions at trial had asserted that there were three reasons why the Financial and Operational Performance Representations were not made. They were the three reasons which the judge also set out in the primary judgment, as quoted earlier. In summary:

(a) the first reason was that the various disclaimers made it clear that the statements made were not capable of giving rise to the Financial and Operational Performance Representations; > > (b) the second reason was that the context was such that Cargill knew that any statements were 'not made as statements of fact capable of being used to draw further inferences of fact, but rather as statements that were capable of being used as no more than the starting point for any investigation into the facts'; and > > (c) the third reason was that the express statements relied upon were not capable of conveying the Financial and Operational Performance Representations, being implied representations.

3. The Viterra Parties submit that the judge did not adequately deal with the first reason, namely that, viewed in the light of the Sale Process Disclaimers, the express statements were not capable of giving rise to the Financial and Operational Performance Representations (all of which were said to be implied from the express statements).
4. The judge chose to address the reasons in reverse order. In relation to the third reason, he rejected that for reasons he had already given in the first part of his consideration of issue 15.
5. The judge rejected the second reason because he considered this to be a concession both that representations had been made, and that they were to be relied upon at least for the limited 'starting point' purpose. As set out earlier, the judge considered that this concession was plainly correct as a contrary position would have been entirely inconsistent with the Phase 1 Process Letter.
6. The judge then turned to the first reason. But before he addressed that reason, he set out the legislation relied upon by Cargill (that is, the relevant provisions of the Australian Consumer Law) and the principles applicable to the construction and operation of that legislation, including a consideration of relevant authorities.[484] The judge also considered s 4(2) of the Competition and Consumer Act 2010 (Cth) and authorities concerning that section.[485] He concluded that s 4(2) was 'not determinative of the issues' in the case. He then, under a heading 'Other matters', returned to the effect of the disclaimers.[486]
7. Although the judge did not, at this point in his reasons, refer expressly to the 'first reason' relied upon by the Viterra Parties, it appears that this is the part of the judgment where he addressed the effect of the disclaimers on the issue of whether the alleged representations were made and how they were to be characterised. After dismissing an analogy the Viterra Parties offered, of a person who was selling a used car which she or he had inherited from a family member's estate, the judge's reasoning culminated in para [3003]. Given the significance of this paragraph, it is appropriate to repeat it again here:

The existence of disclaimers as to accuracy or absence of personal responsibility, separately or in combination, are important when considering the nature of the conduct as a whole. However, although a disclaimer may alter or modify the conduct or its correct characterisation, it cannot operate to 'correct' or transform conduct that was otherwise misleading or to avoid the operation of the Australian Consumer Law. For public policy reasons, the courts will not give effect to a disclaimer that purports to exclude liability for conduct that has been found in fact to be misleading or deceptive. To put it another way, a clause which states (in whatever form) that a discloser of information shall not be engaging, or has not engaged, in certain conduct immediately before or after that conduct has actually been engaged in as a matter of fact will not operate to lead to a finding that the conduct has not been engaged in if in fact it has. Presumably, the authors of the Information Memorandum Disclaimers and the Management Presentation Memorandum Disclaimers were fully aware of this by seeking to exclude the making of or responsibility for any representation to the maximum extent permitted by law rather than to provide that no representations were being made at all (when they clearly were) or that there could be no liability in relation to any misleading representations made (when that would be contrary to law).

1. The judge then considered the United Kingdom position concerning alleged misrepresentations in commerce, but concluded that those authorities were of no real assistance in the context of the operation of the Australian Consumer Law.[487]
2. The Viterra Parties submitted that the judge had failed to properly consider the first reason advanced in reliance upon the Sale Process Disclaimers when he considered whether the representations were made and how they were to be characterised. Senior counsel for Cargill referred the Court to the Viterra Parties' closing written submission to the trial judge in relation to this first reason. It relevantly reads as follows:

First Reason: The effect of the Pre-Contractual Disclaimers is that the First Tier Statements were not capable of giving rise to the Financial and Operational Performance Representations

1. The Pre-Contractual Disclaimers, consisting of the Confidentiality Deed Terms, the Phase 1 Process Letter Terms, the Information Memorandum Disclaimer, the Phase 2 Process Letter Terms and the Data Room Protocol Terms are set out at Facts Section A [37]. By these terms, Cargill Inc was informed, and expressly agreed by signing the Confidentiality Deed twice, that all information provided to it in the sale process (including any of the First Tier Statements) was and could be nothing more than a Starting Point Statement only, and were not Statements of Fact.
2. In particular, by the Confidentiality Deed Terms, Cargill Inc (on behalf of Cargill Australia) agreed that it would not draw any inferences of fact about the Joe White business from the information provided to it in the sale process. The defendants made plain that none of the information provided had been sufficiently verified (in terms of accuracy or comprehensiveness) so as to make it reliable for any inference (including such as the alleged Financial and Operational Performance Representations) to be drawn from that information.
3. At the very beginning of the transaction, by clause 8.3 of the Confidentiality Deed, Cargill Inc agreed that any information provided prior to completion of any acquisition agreement (which information would include each of the First Tier Statements) comprised no more than Starting Point Statements, and not Statements of Fact from which Cargill Australia could reliably draw inferences.

1. The term 'First Tier Statements' was defined in the submission as the express statements relied upon by Cargill Australia. The term 'Starting Point Statements' was defined in the submission as 'statements which were capable of being used as no more than the starting point for any investigation into the facts relevant to Cargill Australia's decision to acquire the business'.
2. The quoted passage from the submission bears out Cargill's submission as to the central importance which the Viterra Parties placed on the 'starting point' contention before the judge even in relation to the 'first reason'.[488] But a contention that, apart from that, the judge ought to have found that the representations alleged were not made by reason of the Sale Process Disclaimers is also there.
3. The position contended for by the Viterra Parties before this Court was that the effect of the Sale Process Disclaimers was that no implied representations at all were made, and that the Viterra Parties did not 'vouch for' the accuracy or completeness of any express representations. However, whilst the Viterra Parties asserted error by the judge on this issue, they did not themselves address the issue of how the Sale Process Disclaimers had any relevant effect on the specific alleged implied representations. They adopted a 'rolled up' approach, submitting that the overall effect of the disclaimers was that no implied representations were made, and that the Viterra Parties had not 'vouched for' the accuracy or completeness of any express representations.
4. As noted earlier, Cargill accepted that there were 'infelicities' in the language used in para [3003], but submitted that the judge had nonetheless undertaken the requisite analysis. Cargill submitted that the judge had addressed the effect of the disclaimers in a 'rolled up' way, and that there was no error in doing so in the circumstances, given the way the matter had been addressed by the Viterra Parties and in particular their reliance upon the 'starting point' contention.
5. The judge clearly understood the relevant principles. He had set them out. He had just undertaken a detailed review of the relevant authorities, including Butcher. What he said in para [3003] must be understood as stating that, unless disclaimers had the effect of, to use McHugh J's expression, 'erasing' the misleading or deceptive conduct by 'modifying' it, disclaimers could not have the effect of precluding a court from finding conduct to be misleading or deceptive. That is, once a conclusion of fact based on the conduct as a whole is reached that misleading or deceptive conduct has occurred, disclaimers cannot then 'transform' that conduct.
6. The issue then to be addressed is, having recognised that relevant disclaimers must be taken into account in considering the conduct as a whole, whether the judge ought to have specifically addressed the relevant disclaimers and their potential effect upon each of the alleged implied representations.
7. Whilst the Viterra Parties asserted error by the judge on this issue, they did not themselves address the issue of how the Sale Process Disclaimers had a relevant effect on the specific alleged implied representations. They also adopted a 'rolled up' approach, submitting that the overall effect of the disclaimers was that no implied representations were made, and the Viterra Parties did not 'vouch for' the accuracy or completeness of any express representations.
8. Cargill's submission that the judge's approach was a consequence of the way the matter was put to him, and, in particular, the emphasis placed on the 'starting point' contention, may well be correct. But the submission the Viterra Parties emphasised before us was made in the written submissions advanced before the judge, notwithstanding the emphasis before him placed on the 'starting point' contention.
9. Ultimately, given the way the matter was argued before us, it is necessary for this Court to undertake a consideration of the relevant disclaimers and their potential effect upon the alleged implied representations. As we explain below, we have concluded that in this case the disclaimers did not have any relevant modifying effect, so that the judge's conclusion that the Financial and Operational Performance Representations were made and were misleading or deceptive was correct.

Were the Financial and Operational Performance Representations made?

1. The first step is to identify those disclaimers which might be relevant to a consideration of whether the alleged implied representations were made.
2. The assertions in cl 10.1 of the Confidentiality Deed and in the 'Legal Disclaimer' documents that the Viterra Parties 'disclaim' or do not 'accept' liability or responsibility for representations made can be set to one side. A party can rely upon a disclaimer so as to render conduct not misleading, but it cannot disclaim or absolve itself from liability for conduct which is found to be misleading after a consideration of the conduct as a whole. Such a clause does not alter the content of any of the express statements, or affect the question whether particular representations are to be implied from such express statements.
3. Clauses 10.2 and 10.3 of the Confidentiality Deed are contractual provisions which purport to exclude liability. Again, these clauses do not relevantly affect the issue of whether representations had been impliedly made, save to the extent that they could be seen as 'fortifying' the no representation clauses found elsewhere.
4. Clause 8 of the Confidentiality Deed, which is headed 'No reliance' is concerned with reliance, save for cl 8.2(a) where the recipient 'acknowledges' that the discloser has not made any representation or warranty, express or implied, as to the accuracy, content, legality or completeness of relevant information. Whilst the 'acknowledge[ment]' indicates that the provision is directed at reliance, there is an implicit assertion that representations as to accuracy, content, legality or completeness, whether express or implied, have not been made.
5. The 'Legal Disclaimer' pages of the Information Memorandum and the Management Presentation contain numerous statements directed at reliance. They can be put to one side to be considered in the context of ground 8, save to the extent that a statement that the recipient of information should not rely and must make their own investigations might again be seen as 'fortifying' the no representation clauses found elsewhere.
6. There are statements in the documents containing the Sale Process Disclaimers which assert that representations are being made. The 'Legal Disclaimer' documents state that the information in the documents of which they form a part was prepared to 'provide background information to assist the recipient in deciding whether to further consider the possible acquisition', and also state that no person has been authorised to give any information concerning the business other than as contained in the document itself. Thus, there is a statement that information is being provided for the specified purpose and that the provision of that information is authorised.
7. The key parts of the Sale Process Disclaimers which have significant potential relevance to whether the alleged representations were made, assessing the conduct as a whole, are as follows:

(a) The implicit assertion in cl 8.2(a) of the Confidentiality Deed that no representations, express or implied, were made. > > (b) The statement in the 'Legal Disclaimer' documents that the respective documents were prepared to 'provide background information to assist the recipient in deciding whether to further consider the possible acquisition'. > > (c) The section of the 'Legal Disclaimer' documents headed 'No Responsibility for Contents of Document' insofar as it was stated that to the 'maximum extent permitted by law' no representation, express or implied, was made as to the adequacy, accuracy, correctness, completeness or reasonableness of the document (an assertion the substance of which is repeated later in the same section in the sentence which appears to make sense only if the missing word 'is' is inserted), together with the statements that the information does not purport to be comprehensive and has not been independently verified, and that the discloser is under no obligation to correct any errors or omissions. > > (d) The acknowledgement in the 'Legal Disclaimer' documents that no person has been authorised to give any information concerning the business other than as contained in the document itself. > > (e) The statement in the 'Legal Disclaimer' documents that no representation is given as to the accuracy of forecasts. This particular disclaimer could only be relevant to the sixth alleged implied representation concerning future capital requirements. > > (f) The statement in cl 8.1(a) of the Data Room Protocol that to 'the maximum extent permitted by law' the specified parties 'do not make any representation ... express or implied, of any Material or any other information' would be relevant if it could be given a comprehensible meaning. But what it means to make or not make a representation 'of' Material or 'of' information is unclear. > > (g) The provisions in the schedules to the Data Room Protocol whereby Glencore and its related corporate entities are said to be not obliged to disclose any particular information (sch 2, cl 2) and reserve a right not to respond to any question or request for documentation in the Q&A process (sch 3, cls 4 and 6).

8. When the aspects of the Sale Process Disclaimers that might bear upon the question of whether a representation was made are set out and considered in the context of the process undertaken in Phase 1 and Phase 2, it readily becomes apparent why the Viterra Parties emphasised before the judge the submission that the representations made were merely a 'starting point'.
9. It could not be credibly contended that no representations had been made. The 'Legal Disclaimer' documents themselves, which are part of the Information Memorandum (which was at the 'starting point') and also the Management Presentation (which was not) each expressly state that information was being provided to assist Cargill's consideration of the acquisition. That information constituted representations about the Joe White business. Further, each document states that no person was authorised to give information other than that in the document, from which it must follow that the information in the document was authorised.
10. In the correspondence between Merrill Lynch and Cargill in relation to the Phase 1 process culminating in the Indicative Bid, and in relation to the Phase 2 process culminating in the Final Bid, as previously referred to, Merrill Lynch made it quite clear that information was being provided which Cargill was expected to use for the purpose of formulating their bids, and Cargill's responses were equally clear in stating that that was both their understanding and what they had done.
11. In the context, asserting that no express statements had been made was untenable and no submission of that kind was made. Plainly, statements were made. The 'starting point' contention was an implicit recognition of this reality. If express statements were in fact being made, notwithstanding assertions to the contrary, matters properly to be implied from what was expressly stated were also being stated, notwithstanding assertions to the contrary. Express statements almost invariably (perhaps always) carry implications of some kind. The contention that the relevant disclaimers meant that no implied representations at all could be found cannot be accepted. But that is not to say that particular implications might not be affected by a relevant disclaimer.
12. As to the express statements, what is submitted by the Viterra Parties is that the relevant disclaimers meant the Viterra Parties did not 'vouch for' the accuracy or completeness of what was stated. That is not a contention that the statements were not made. It is a contention that Cargill were told the statements could be inaccurate or incomplete. But that does not require the conclusion that no representations could be implied from the express statements.
13. Turning back to the potentially relevant disclaimers, the position is as follows:

(a) Statements that no representations, express or implied, were made cannot be given effect when, as a matter of fact, representations were made. > > (b) The statements concerning the provision of background information and authorisation support the conclusion that representations were made. > > (c) The potentially operative provisions in this context are those stating that to the 'maximum extent permitted by law' no representation, express or implied, was made as to the accuracy or completeness of the representations made or the information provided. Disclaimers to that effect are to be found in the 'Legal Disclaimer' documents under the heading 'No Responsibility for Contents of Document' and in the schedules to the Data Room Protocol.

14. The qualification 'to the maximum extent permitted by law' must be seen as a recognition of the limited effect which the authorities, including Butcher and the cases applying the 'Henjo doctrine', have held that disclaimers can have in this context.
15. It is significant in the present case that the relevant disclaimers are all of a generalised character. Some, such as the 'Legal Disclaimer' documents, are contained in what are sometimes described as 'boilerplate' documents.[489] None of them address in specific terms any of the express statements relied upon or the Undisclosed Matters. This was not a case where the disclaimers made clear that the representor was passing on information from an arm's-length third party: Joe White was a subsidiary of Viterra Malt, which was (ultimately) a subsidiary of Glencore, and Hughes's conduct was attributable to each of those entities. Nor did the disclaimers purport to convert statements of fact into statements of opinion. In those respects they were quite different from the disclaimers considered in Butcher and Ireland.
16. Having identified the disclaimers which might bear on the issue of whether the implied representations were made, we turn to the implied representations themselves. We will deal with them by reference to the judge's analysis in the first part of his treatment of issue 15, where he analysed the alleged implied representations by reference to the express statements relied upon.
17. It is appropriate to begin with the tenth alleged representation. This was the most important representation upon which Cargill Australia relied, and, in substance, its falsity was the foundation for the falsity of the other alleged representations.
18. The tenth implied representation was that the Undisclosed Matters did not exist. The judge observed that he had already found that the Undisclosed Matters did exist and that they had not been disclosed.[490]
19. The Undisclosed Matters were that the Operational Practices were routinely carried out without informing customers, that they were partly recorded and endorsed in written policies, that Joe White's financial and operational performance was substantially underpinned by the practices, and that but for the practices Joe White could not produce and sell malt in the volumes and to the specifications required by customers and in the volumes and for the returns reflected in the Financial and Operational Information.
20. The judge found that these practices 'involved dishonest business practices',[491] which had become 'an entrenched part' of Joe White's business operations,[492] so as to be aptly described as 'customary or widespread', and, in the case of the Reporting Practice, 'universal'.[493] He found that the evidence clearly demonstrated that the financial and operational performance of Joe White from 2010 to 31 October 2013 was substantially underpinned by the Operational Practices.[494] These conclusions are not challenged in any ground of appeal.
21. The judge's relevant conclusion on the tenth alleged representation was as follows:

By making the positive statements in the Information Memorandum and the Management Presentation as referred to by Cargill Australia, including concerning the effectiveness of the business model, the strong track record, the long-term relationships and contracts in place and the ability to meet customer specifications and requirements, and not disclosing information during the Due Diligence which indicated to a prospective purchaser a material, indeed fundamental, means of operations by which these things were achieved or purported to be achieved (as the case may be), it was implicitly represented that there were no practices in existence that would have undermined or falsified the ability of Joe White to meet customer specifications and requirements, such as the Viterra Practices.[495]

1. The relevant disclaimers included an assertion to the effect that the Viterra Parties did not 'vouch for' the completeness of the express statements made or the information provided. In our opinion that general assertion did not relevantly affect the implied representation arising from non-disclosure of the dishonest real means by which Joe White had achieved the results it had. A disclaimer of completeness may alert a party considering the acquisition of a business to the possibility, or even the likelihood, of an omission due to carelessness or incompetence, or due to a failure to appreciate the importance of some matter, or due to a genuinely held belief that some matter need not be disclosed. It does not alert a party to the possible existence of concealed dishonest practices which have underpinned the financial performance of the business.
2. We could stop there, because the importance of the tenth implied representation was such that it alone was sufficient to establish Cargill Australia's relevant claims based on the Financial and Operational Performance Representations. But we will address the other alleged implied representations.
3. An initial general observation is important. The relevant enquiry is a factual enquiry into what was the relevant conduct, taking all of the relevant circumstances into account, and whether that conduct, again taking all the relevant circumstances into account, was misleading or deceptive. The nature of what was said and not said in the specific circumstances is critical. The most important of those specific circumstances here is that there existed concealed dishonest practices which underpinned the financial performance of the business. This circumstance is critical not just in relation to the tenth representation, as already explained, but in relation to all the other implied representations relied upon. They were each a specific manifestation of the underlying failure to disclose the dishonest practices upon which the business was based.
4. The first implied representation was that the production, sales and earnings figures stated in the Financial and Operational Information were based upon strict quality control procedures and analysis. The judge identified the various express statements which were relied upon,[496] and dealt in detail with the Viterra Parties' submissions as to why this implication ought not to be drawn from those express statements. In substance, what was contended was that the express statements were 'aspirations' and were representations as to the business model rather than as to what actually occurred.[497]
5. The judge's relevant conclusion was as follows:

The statements identified by Cargill Australia, including by reference to technical analysis and the strict quality measures, unrelenting focus on quality, the disciplined approach, uniformity, consistency, the stringent internal protocols and control measures across the entire production cycle, regular compliance and audits, and the ability to produce malt to customers' exact specifications and requirements necessarily and unequivocally represented the strict and controlled basis upon which the performance of the Joe White Business, and therefore the consequential production, sales and earnings figures, was achieved; namely, through strict quality control procedures and analysis.[498]

1. The relevant issue under consideration is a factual enquiry: as a matter of fact, do the disclaimers asserting that no implied representation was made and that the Viterra Parties did not 'vouch for' the accuracy or completeness of the express statements lead to a conclusion that the first implied representation was not made? In our opinion, they do not.

(a) First, almost all of the express statements relied upon in relation to the first implied representation were in the Information Memorandum. The statements and the information were obviously intended to be used by Cargill in formulating its Indicative Bid. The correspondence confirmed that. > > (b) Secondly, the implied representation 'necessarily and unequivocally' drawn from the express statements was, as a matter of fact, made, notwithstanding assertions, 'to the maximum extent permitted by law', to the effect that implied representations were not made and express statements were not 'vouched for'. On the factual enquiry, the clear and specific statements in fact made, and the necessary and unequivocal implication to be drawn from those statements, outweighs the general disclaimers.

2. The second implied representation was that the production, sales and earnings figures stated in the Financial and Operational Information were based upon customer contracts, including customer specifications, being complied with. The judge set out the express statements relied upon.[499] The Viterra Parties' submissions were relevantly similar to those made in relation to the first implied representation. The judge's conclusion as to the second implied representation was as follows:

Turning to the statements relied upon themselves, they contained assurances about stability, long-term customer relationships and long-term contracts, the ability of Joe White to meet customer specifications and that Joe White ensured exact specifications and requirements were met. Again, for the reasons discussed with respect to the first implied representation, it was implicit that the production, sales and earnings figures as stated in the Financial and Operational Information must have been based upon such matters.[500]

1. As with the first representation, we do not consider that the disclaimers were capable of altering this conclusion. Most of the express statements said to give rise to the second representation were found in the Information Memorandum, which was plainly intended to be relied upon by Cargill. And, again, the specific factual statements made by the Viterra Parties, and the implications to be drawn from those statements, were such that they were not gainsaid by the generalised disclaimers.
2. It seems to us that the third implied representation, that the results had been properly and lawfully achieved, was relevantly indistinguishable from the second.[501]
3. The fourth implied representation was that Joe White had not withheld or concealed material information from customers. Again, the judge set out the express statements relied upon.[502] The judge's conclusion was as follows:

In my opinion, statements made to the effect that Joe White identified and focused on a detailed understanding of specific customer requirements, that Joe White met customers' exact specifications and requirements, and that it had established long-term relationships with customers, in the context in which they were made, necessarily implied that Joe White was not withholding or concealing material information from its customers. Indeed, in such circumstances as represented, it was difficult to perceive a basis upon which it might be said that material information might have been withheld. To put it another way, it must follow that it is highly likely, if not inevitable, that withholding or concealing material information from a customer would mean that its requirements were not being met.[503]

1. It is apparent by this point that the implications being contended for were not seen by the judge as requiring subtle analysis. He found the relevant implications to be compelling, almost irresistible. We agree. The generalised disclaimers that are relevant to the question of whether the representations were made were not such as to lead to a conclusion that, as a matter of fact, the pleaded implications did not arise.
2. The fifth implied representation was that the assets of the Joe White business were sufficient for Joe White to sell malt in the volumes and for the return stated in the Financial and Operational Information. Again, the judge set out the express statements relied upon.[504] This representation was related to the sixth implied representation concerning low capital expenditure needs in the short to medium term. The judge recorded the Viterra Parties' counsel as acknowledging that the sixth implied representation had been made.[505] The judge found that the fifth implied representation had also been made, observing that the Viterra Parties' submissions on the point sought to 'artificially' confine any implied representation to 'what was strictly said expressly'.[506]
3. We can discern no error in the judge's conclusion. The fifth and sixth representations were, for relevant purposes, close to indistinguishable. The sixth implied representation was conceded to have been made. The related fifth implied representation was also made. As a matter of fact, again, the generalised disclaimers did not displace the implied representations otherwise present in what was expressly stated.
4. The seventh implied representation was that when procuring barley, Joe White gave priority to obtaining barley that best met its customers' specifications and requirements. The judge referred to the express statements relied upon.[507] The judge's relevant conclusion was as follows:

A review of the statements that were made, namely that Joe White consistently had access to, was focused upon selecting, and purchased, barley which was of high quality, which barley best met customers' specifications, also represented that this was the manner in which Joe White conducted its operations. It was implicit in such statements that Joe White gave this priority when procuring barley.[508]

1. As was the case with the other alleged implied representations, in our opinion, the generalised disclaimers did not displace what was expressly said and the necessary implication to be drawn.
2. The eighth implied representation was that Joe White employed technical analysis and strict quality control procedures to ensure that the malt it produced consistently met its customers' specifications. Again, the judge referred to the express statements relied upon.[509] In relation to this implied representation, the Viterra Parties characterised the express statements as 'general statements of aspiration'. The judge's conclusion was:

It was plain that such a representation was implied from the statements pleaded by Cargill Australia, which included that Joe White utilised technical analysis and strict quality control procedures to ensure that the customer specifications were consistently met.[510]

1. The conclusion as to the effect of the disclaimers in the context of this factual inquiry is the same as that already reached in relation to the other implied representations. The disclaimers did not, in our opinion, modify or negate the representation necessarily implied from the express statements.
2. The ninth implied representation was that a central reason for Joe White's ability to achieve the performance described in the Information Memorandum was its ability to produce malt that met its customers' exact specifications and requirements and its focus on doing so. The judge referred to the express statements relied upon, almost all of which were in the Information Memorandum.[511] The judge's conclusion was as follows:

The statements identified by Cargill Australia demonstrated that Cargill was told repeatedly how Joe White was able to meet its customers' exact specifications and requirements, and its focus upon doing so. The implied representation was made.[512]

1. The conclusion as to the effect of the disclaimers in this context is the same as that already stated in relation to the other implied representations. Again, the disclaimers did not, in our opinion, modify or negate the representation necessarily implied from the express statements.
2. When the relevant disclaimers are specifically considered in the context of each of the alleged implied representations, they do not result in a conclusion that any of those representations, express or implied, were not made. Nor do the statements that the Viterra Parties do not 'vouch for' their accuracy or completeness relevantly alter or qualify the meaning of the express statements or the implied representations.
3. For these reasons, in our opinion, the judge did not err in finding that the Financial and Operational Performance Representations were made. They were implied from the express statements and the information provided. Consideration of the conduct as a whole, including the disclaimers, does not alter the content of what was impliedly represented.

Were the Financial and Operational Performance Representations misleading or deceptive?

1. Once it was found that the Financial and Operational Performance Representations had been made in the terms alleged, the conclusion that they were false and misleading or deceptive inevitably followed, given the judge's other findings. Save for the submission that the judge erred in concluding that the Financial and Operational Performance Representations had been made without having proper regard to the Sale Process Disclaimers, no submission of any further relevant error in the conclusion that they were false and misleading or deceptive was advanced by the Viterra Parties. In particular, a disclaimer as to accuracy does not require the conclusion that the representations were not false or misleading or deceptive.

1. Before leaving this ground of appeal, reference should be made to the authorities from the United Kingdom relied upon by the Viterra Parties, namely IFE Fund,[513] Raiffeisen,[514] Taberna,[515] and Webster v Liddington.[516]
2. In our opinion the legislative regime in the United Kingdom (relevantly constituted by the Misrepresentation Act 1967 (UK) and the Unfair Contracts Act 1977 (UK)) has significantly diverged from the legislative regime applicable in Australia (ie the Australian Consumer Law). Similarly, the judicial approaches to disclaimers have significantly diverged in Australia and the United Kingdom.[517] The United Kingdom authorities were, in our view, rightly distinguished by the trial judge.

1. Ground 6 of the appeal thus fails.
   • (13) Ground 8: Financial and Operational Performance Representations - reliance
2. By ground 8, the Viterra Parties contend that the judge erred in finding that Cargill Australia had relied upon the Financial and Operational Performance Representations in entering into the Acquisition Agreement.

1. The Viterra Parties submitted that Cargill Australia had disavowed, in the Acquisition Agreement (cl 13.4), reliance upon anything but the Warranties. They submitted that this was the best evidence of Cargill Australia's state of mind at the time, and it contradicted the witnesses' evidence. They submitted that this was a 'conscious, expressed, clear, formal decision made' by Cargill Australia. They submitted that the Warranties were 'heavily negotiated'. They relied upon the size and sophistication of the parties.
2. The Viterra Parties submitted that, even if the information in the Information Memorandum and Management Presentation had been relied upon by Cargill for the purpose of valuing the Joe White business, that information had not been relied upon for the purposes of entering into the Acquisition Agreement; and that was the only purpose that was relevant.
3. The Viterra Parties submitted that if, contrary to their primary submission, the Acquisition Agreement was not determinative of the issue, then the Sale Process Disclaimers had expressly and repeatedly asserted that Cargill must not rely upon the Viterra Parties' representations but must make and rely upon their own investigations and enquiries, and that the evidence established that Cargill Australia understood that.
4. The Viterra Parties contend that the judge was wrong to rely upon the evidence of Conway, Van Lierde, Eden and Koenig, to the effect that they would not have proceeded with the acquisition of Joe White had they known of the Undisclosed Matters. The Viterra Parties submitted that their evidence was of little weight because:

(a) their evidence was inherently unreliable, as it was hindsight evidence given by interested persons;[518] > > (b) the passage of time, being approximately six years, diminished the reliability of their evidence; and > > (c) their evidence was elicited by putting to them a series of complex compound propositions in examination-in-chief.

5. In any event, the Viterra Parties submitted, the witnesses had been questioned with the wrong counterfactual. It was submitted that rather than being asked what they would have done had the Operational Practices been disclosed, they should have been asked what they would have done had none of the pleaded representations been made.
6. The Viterra Parties submitted that Conway was the only witness who gave evidence in connection with entry into the Acquisition Agreement rather than with Completion. Yet, Conway had not read the Confidentiality Deed, the Information Memorandum, nor the Acquisition Agreement (or any draft of it); and it was 'highly unlikely' that he had read the Management Presentation Memorandum.[519] They further submitted that he was not asked about the pleaded representations when giving evidence.
7. The Viterra Parties submitted that Cargill Australia had taken no steps to ascertain Joe White's policies on the analysis and reporting of test results. They submitted that the evidence showed that Cargill Australia was willing to proceed with the transaction, notwithstanding that it considered that there were deficiencies in the information that it had received during the due diligence.[520]
8. The Viterra Parties submitted that De Samblanx, Cargill's technical expert, had had concerns about the Joe White's practices before the Acquisition Agreement was executed but, at a critical meeting of Cargill executives on 17 July 2013, he had endorsed the decision to proceed without raising the concerns which he had. They submitted that his concerns were then addressed, not by anything the Viterra Parties represented, but by the knowledge that Heineken had certified Joe White's processes.
9. The Viterra Parties submitted that the judge had failed to identify specifically who within Cargill had read the statements said to give rise to the Financial and Operational Performance Representations, and who had understood the statements as making the Financial and Operational Performance Representations.
10. Relying upon submissions made on ground 12, the Viterra Parties submitted that the final decision to enter into the Acquisition Agreement was made by Gregory Page, the chief executive and chairperson of Cargill, Inc. They submitted that he made that decision on the basis of the Viterra Parties' acceptance of Cargill's position on certain then outstanding issues as to the terms of the Acquisition Agreement.
11. Finally, in an aide-mémoire, the Viterra Parties made a number of assertions concerning the evidence as to barley grades, storage, analysis uncertainties, and the disclosures in October 2013 apparently directed at disputing or qualifying the judge's conclusion that the Undisclosed Matters had not been disclosed.

1. Cargill submitted that the judge had found Conway's evidence to be credible and compelling. They submitted that where a finding of fact depends on the credibility of a witness, there are high thresholds that must be met for the finding to be overturned;[521] and that they were not met here.
2. Cargill submitted that Conway's evidence was corroborated by the evidence of Van Lierde, Eden and Koenig; and that it was consistent with contemporaneous evidence.[522]
3. Cargill submitted that the Acquisition Agreement's terms were only one circumstance to be taken into account, and that other evidence outweighed these terms.
4. Cargill submitted that hindsight evidence is not inherently unreliable. Rather, they submitted, such evidence is to be treated with caution, and its reliability depends on the credibility of the witnesses.[523] It was further submitted that the Viterra Parties had had ample opportunity to cross-examine the four Cargill witnesses on this issue, but had chosen not to do so.
5. Finally, Cargill submitted that the judge did have regard to who within Cargill read the statements said to give rise to the Financial and Operational Performance Representations, who understood those statements to make the Financial and Operational Performance Representations, and who relied upon them. They submitted that the Cargill leadership team and board were kept informed by reports from the deal team, and that the reports were consistent with reliance upon the Financial and Operational Performance Representations.
6. Cargill submitted that it was unnecessary to determine exactly who had relied upon the Financial and Operational Performance Representations. They submitted that where the relevant decision-maker is a group, there only needs to be 'an available conclusion that in some fashion the relevant conduct affected the "group's" decision in some way'.[524]

7. The judge concluded that Cargill Australia had entered into the Acquisition Agreement in reliance upon the Financial and Operational Performance Representations on the following bases:

(a) Conway's evidence that if he had known of the Operational Practices, Cargill would not have proceeded. The judge acknowledged that Conway gave no evidence directly concerning the making or otherwise of the Financial and Operational Performance Representations.[525] > > (b) Evidence to the same effect by two other Cargill executives with authority to stop the transaction, being Van Lierde and Eden, and the evidence of another senior executive involved from inception, Koenig.[526] > > (c) The contemporaneous documentation recording the process that Cargill undertook, which the judge said demonstrated that Cargill would not have assessed the value of Joe White in the way that they did if they had not done so in reliance upon the Financial and Operational Performance Representations.[527] > > (d) The internal reports prepared by Cargill, which the judge said were expressed in positive terms, and the judge's assessment that there was little doubt that if Cargill had been informed of the Undisclosed Matters or of the Operational Practices, those terms would have been very different.[528] > > (e) His rejection of the Viterra Parties' contention that Cargill was so keen to acquire Joe White that they would have entered into the Acquisition Agreement regardless of whether or not the Financial and Operational Performance Representations had been made.[529] > > (f) The Sale Process Disclaimers and the terms of the Acquisition Agreement did not alter the factual conclusion that Cargill Australia did in fact rely.[530] > > (g) The Financial and Operational Performance Representations were 'calculated' to induce Cargill Australia to purchase the shares in Joe White, notwithstanding the Sale Process Disclaimers.[531] > > (h) Cargill Australia's reliance was reasonable.[532]

8. The trial judge acknowledged that the Sale Process Disclaimers and the provisions of the Acquisition Agreement did provide probative evidence of Cargill Australia's state of mind that was inconsistent with reliance upon the Financial and Operational Performance Representations to the extent that they did not fall within or overlap with the Warranty Representations, and he took that into account.[533]

9. There is no contention that the judge erred in relation to the identification of the legal principles in relation to reliance and causation. Rather, this ground of appeal involves a challenge to the judge's findings of fact. In that regard, insofar as the judge's factual conclusions were based upon the credibility and reliability of Conway, Van Lierde, Eden and Koenig, findings of that kind should only be interfered with by this Court if those conclusions were inconsistent with facts incontrovertibly established, or were 'glaringly improbable' or 'contrary to compelling inferences'.[534]
10. There is no basis upon which to interfere with the judge's conclusion that Conway, Van Lierde, Eden and Koenig's evidence should be accepted when they said that if they had known of the significance and extent of the Operational Practices, the acquisition would not have gone ahead. The judge's conclusion was not inconsistent with facts incontrovertibly established, nor was it glaringly improbable or contrary to compelling inferences. The judge heard their evidence and found it to be credible, and in that sense enjoyed an advantage over this Court. Their evidence was consistent with the judge's findings about the nature and extent of the Operational Practices. Caution was required for the reasons the Viterra Parties submitted, but the judge was conscious of those considerations and he concluded their evidence was to be accepted.
11. That is not the end of the matter, however. The conclusion that the evidence of Conway, Van Lierde, Eden and Koenig should be accepted does not inevitably lead to a conclusion that Cargill Australia relied upon the Financial and Operational Performance Representations. This is because the evidence of Conway, Van Lierde, Eden and Koenig may also be seen as consistent with reliance upon the Warranty Representations.
12. There is cogency in the argument that, given the Sale Process Disclaimers and the terms of the Acquisition Agreement, Cargill Australia knew that it could only rely upon the Warranties and the Warranty Representations, and that that is what it did rely upon. As indicated, the evidence of Conway and the others is not in itself inconsistent with that conclusion. But, as the judge said, there are further considerations which support a conclusion that Cargill Australia did rely upon the Financial and Operational Performance Representations.
13. The further considerations which we consider to be significant are:

(a) first, the process by which Cargill Australia formulated both its Indicative Bid and its Final Bid; > > (b) secondly, the Merrill Lynch correspondence; > > (c) thirdly, the restrictions placed upon Cargill Australia's access to information; and > > (d) fourthly, Cargill's internal reports.

14. As to the process of formulation of the bids, in formulating its Indicative Bid Cargill relied upon the information in the Information Memorandum. Merrill Lynch not only invited it to do so, but required Cargill to specify where they had departed from that information. Cargill told the Viterra Parties in the correspondence with Merrill Lynch that they had relied, and did not specify any departures. The Viterra Parties' 'starting point' contention was consistent with that. In relation to Cargill's Final Bid, Cargill's valuation model (and that of Goldman Sachs) relied upon and reproduced the data the Viterra Parties had provided in relation to the financial and operational performance of the business in the period of 2010-13.
15. As to the Merrill Lynch correspondence, it is necessary to repeat in this context certain features of that correspondence referred to earlier.
16. Merrill Lynch's Phase 1 Process Letter required Cargill to specify where their assumptions underpinning their Indicative Bid varied from the information in the Information Memorandum. Cargill's response expressly stated that their Indicative Bid was based upon the information in the Information Memorandum and was submitted on the assumption that that information was true and accurate. No variations were notified. The Cargill response also expressly stated that they had relied upon the EBITDA figures in the Information Memorandum. It foreshadowed an intention to 'refine' its valuation based on more detailed information in Phase 2, and stated that Cargill expected to have access to all 'material' information in that due diligence process. Cargill's covering letter with their Final Bid expressly stated that they had conducted their due diligence based upon the information provided 'in the process' and that, based on that due diligence, they had reached positive conclusions as to the Joe White business and its management.
17. As to the restrictions placed upon Cargill Australia's access to information, the judge set out in the primary judgment what he termed the 'strictures' placed upon Cargill's access to and use of the information provided.[535] In particular, we note the following:

(a) The Phase 1 Process Letter emphasised that the information provided was provided subject to the terms and conditions as to confidentiality set out in the Confidentiality Deed. The Confidentiality Deed defined 'Confidential Information' widely as, in substance, all information disclosed in relation to the proposed transaction. > > (b) Under the terms of the Confidentiality Deed, Cargill agreed not to disclose the information provided to any person, subject to limited exceptions (cl 3.1), and the deed provided that disclosure even to their own employees and related bodies corporate was to be on a 'need to know basis' (cl 3.2). The deed expressly prohibited contact with Joe White officers or employees without the written consent of Merrill Lynch. > > (c) The 'Legal Disclaimer' document forming part of the Information Memorandum provided that information disclosed was not to be made available to or discussed with any other person without Glencore's prior written consent. > > (d) The Phase 2 Process Letter reminded Cargill twice of their obligations under the Confidentiality Deed and repeated the prohibition upon contact with any officers or employees of Joe White. > > (e) The Phase 2 Process Letter also contained an appendix concerning the site visits which prohibited communication with anyone 'outside of the designated guide or Merrill Lynch chaperone'. The judge set out a description of the site visits indicating that this prohibition was enforced by Merrill Lynch.[536] > > (f) The Data Room Protocol also prohibited contact with Joe White employees, other than in accordance with the protocol (cl 2.2), and again incorporated the obligations under the Confidentiality Deed (cl 2.1). The schedules to the Data Room Protocol provided that Glencore and its related bodies corporate were not under any obligation to disclose any particular information (sch 2, cl 2) and reserved to themselves the absolute discretion as to whether to answer any question or respond to any request for documentation (sch 3, cls 4 and 6). > > (g) The 'Legal Disclaimer' document forming part of the Management Presentation Memorandum contained the same restrictions and prohibitions as had been contained in the almost identical document forming part of the Information Memorandum.

18. The Viterra Parties in fact managed and confined Cargill's capacity to become informed about matters relevant to the Operational Practices. The Viterra Certificate of Analysis Procedure and the Malt Blend Parameters Procedure were not in the data room. The Viterra Certificate of Analysis Procedure was recorded in Viterra's own records as 'obsolete' so as to deliberately conceal its existence. Hughes had instructed that the Malt Blend Parameters Procedure was to be stored separately from the quality procedure manuals and was not to be accessible to International Organisation for Standardisation auditors or the auditors of Joe White's customers.[537] Hughes' participation in the Operations Call prevented or inhibited the possibility of direct communication on relevant issues between De Samblanx and Youil. Such communications at that stage may have revealed, or begun to reveal, the true position.[538]
19. As to Cargill's internal reports, the judge said Cargill's positive internal reports would have been different but for reliance upon the Financial and Operational Performance Representations. In our opinion this was correct, for obvious reasons, given the judge's findings as to the extent and significance of the Operational Practices.
20. The Viterra Parties' submissions concerning De Samblanx do not assist. The existence of concerns which he harboured at various stages does not relevantly detract from the impact of the Viterra Parties' misleading and deceptive conduct. The judge found that Cargill's officers accepted what they were told.[539]
21. The submission of the Viterra Parties about barley grades, storage, analysis uncertainties, and the October 2013 disclosures can only be relevant as an attempt to undermine or qualify conclusions in the primary judgment, which no ground of appeal seeks to challenge, about the Operational Practices and the Undisclosed Matters.
22. The Viterra Parties' submissions concerning Page ignore the need to overturn findings made by the judge on the basis of credit in relation to Conway, Van Lierde, Eden and Koenig. In any event, the judge's conclusions are not inconsistent with Page having had a role in the decision making process prompted by the phone call which is the subject of ground 12.
23. The Viterra Parties have failed to establish that any error was made by the judge in concluding that, notwithstanding the Sale Process Disclaimers and the Acquisition Agreement, Cargill did rely in fact upon what was represented in the Financial and Operational Performance Representations.
24. Ground 8 of the appeal thus fails.
    • (14) Grounds 4 and 5, and contention 2: Financial and Operational Performance Representations - Acquisition Agreement cl 15.4(b)
25. Grounds 4 and 5 concern cl 15.4(b) of the Acquisition Agreement, which provided that Viterra is not liable to Cargill Australia for any Claim (as defined) if Cargill, Inc ceases to control Joe White or its business. Clause 15.4(b) can only assist Viterra. It cannot assist Glencore, which is not a party to the Acquisition Agreement.

26. The judge held that, because Joe White was on-sold in 2019, cl 15.4(b) operated to extinguish Cargill Australia's contractual claims against Viterra. There is no contention by Cargill that that conclusion was wrong.
27. The judge held that Viterra's liability for misleading or deceptive conduct under the Australian Consumer Law, and for deceit, was not so extinguished. The judge did so on the basis of a rule, independent of public policy, which precluded Viterra from relying upon cl 15.4(b) as a defence to such claims, because Cargill Australia was induced into agreeing to the Acquisition Agreement as a result of Viterra's misleading or deceptive conduct, and its deceit.

28. Viterra dispute that such a rule exists.[540] Viterra submitted that the judge relied upon Riordan J's decision in Brighton as authority in support of the purported rule. They submitted that the purported rule is in fact unsupported by authority.
29. Cargill submitted that Australian authorities establish that there is indeed a rule, independent of public policy, whereby an exculpatory clause in an agreement procured by fraud or misleading or deceptive conduct will be ineffective.[541] They submitted that the position is similar in the United Kingdom[542] and the United States.[543]
30. By contention 2, Cargill submitted that even if the rule discussed above does not exist independently of public policy, the authorities establish that public policy nevertheless precludes the enforcement of provisions such as cl 15.4(b), existing in an agreement which was itself procured by misleading or deceptive conduct, or deceit.
31. In response to contention 2, Viterra conceded that public policy will 'ordinarily' not permit the enforcement of a clause procured by misleading or deceptive conduct, or deceit. However, in their written case Viterra made two submissions as to why this was not the ordinary case.

(a) First, they submitted that cl 15.4(b) was not a general exclusion clause purporting to operate immediately upon entry into the contract. Rather, it was 'triggered' when Joe White was on-sold in 2019. > > (b) Secondly, they submitted that by the time of on-sale in 2019, Cargill Australia had already 'affirmed' the Acquisition Agreement by, amongst other things, suing for damages in this proceeding for breaches of the Warranties. They submitted that Cargill Australia could have instead rescinded the contract, or sought to have it declared void under the Australian Consumer Law. They submitted that Cargill Australia should not be permitted to accept the benefits of the agreement by affirming, yet seek to avoid its disadvantages, one being cl 15.4(b).

32. In oral submissions, the matter emphasised by Viterra was that, because the Acquisition Agreement was not rescinded, its terms continued to regulate the parties' relationship.
33. Cargill submitted that if cl 15.4(b) was bad for being contrary to public policy, then it was forever unenforceable, and it could not be revived by any 'affirmation' by Cargill Australia.
34. Viterra submitted that Cargill's conception of unenforceability was not supported by the authorities. They submitted that Cargill had fixated upon the word 'unenforceable' to draw conclusions about cl 15.4(b)'s legal effects, and that to do so was to be unduly beholden to language, and to 'beg the question'.[544] Viterra submitted that public policy, being a 'flexible' concept,[545] should account for all the facts and circumstances as at the time that the clause comes to be enforced. Here the relevant facts are:

(a) Cargill Australia's full knowledge of the impugned conduct by 2019; > > (b) the decision to on-sell Joe White regardless of cl 15.4(b); and > > (c) the decision to seek damages instead of rescission or avoidance. > > > (c) Analysis

35. In his analysis of the effect of cl 15.4(b) the judge did rely upon Riordan J's decision in Brighton,[546] as the Viterra Parties submitted. But that is but one of many decisions, including Henjo itself, which adopt the principle that a party cannot rely upon a provision in a contract which the claimant has been misled into entering so as to escape liability for misleading or deceptive conduct, or deceit. In their submissions on ground 1, the Viterra Parties contended that Henjo is properly to be confined to that situation. As noted above, their submissions in relation to ground 1, and grounds 4 and 5, were thus in tension.
36. The authorities discussed in our consideration of grounds 1 and 2 establish that a provision of a contract which the claimant has been misled into entering cannot be relied upon so as to avoid liability for misleading or deceptive conduct, or deceit, for two reasons:

(a) first, the provision would not have been agreed to if the claimant had not been misled or deceived; and > > (b) secondly, such a provision cannot be given effect for reasons of public policy.

37. Viterra seek to distinguish cl 15.4(b) from other clauses in contracts induced by fraud on two bases:

(a) first, that it did not purport to operate immediately upon entry into the contract, on the basis that Cargill Australia had 'affirmed' the contract when the 'triggering' circumstance arose in 2019; and > > (b) secondly, that because the agreement was not rescinded it continued to regulate the parties' relationship.

38. As to the first basis, it is not clear, and Viterra did not explain, how it is said that the fact that cl 15.4(b) did not operate immediately upon entry into the contract alters the relevant analysis.
39. There are conflicting first instance decisions concerning whether temporal limits on the bringing of claims for misleading or deceptive conduct are contrary to public policy.[547] But cl 15.4(b) is not analogous to the imposition of a temporal limitation. The triggering circumstance is the cessation of control of Joe White or its business. Cargill Australia, having been misled into entering into the agreement will, under this provision, lose its remedy if its parent, Cargill, Inc, loses control of Joe White or the business. Thus, the effect of the provision is that, unless Cargill, Inc keeps the business which its subsidiary has been misled into acquiring, it will not be entitled to bring a claim. Such a provision is not analogous to provisions imposing time limitations.
40. As to the second basis, concerning 'affirmation' and the continued contractual regulation of the parties' relationship, this is almost invariably the case in claims of this kind. None of the authorities suggest the relevant principles do not apply in this circumstance.
41. Grounds 4 and 5 must fail and contention 2 is upheld.
    • (15) Ground 7: Financial and Operational Performance Representations - the requisite intention for deceit
42. By ground 7, Viterra contends that the judge erred in finding deceit in circumstances where there had been a failure to find, or prove, that Viterra had intended Cargill to understand the Financial and Operational Performance Representations in the same sense that Cargill claimed it had understood them. This contention was not raised at trial. Viterra relies in this respect on the Sale Process Disclaimers. It contends that, given Hughes' knowledge of the disclaimers, Cargill had failed to prove that Viterra had had the requisite subjective intention.[548]

43. The judge commenced by observing, correctly, that what was intended by the representor is a question of fact, which is not simply determined by consideration of disclaimers alone.[549] He observed that the Information Memorandum and the Management Presentation Memorandum had been created by Glencore and Viterra in order to try to obtain a good outcome for the sale of Joe White. He found that those with responsibility for the contents of the documents 'fully appreciated' that they 'would affect not only whether or not a prospective purchaser would be interested, but also how the Joe White business would be valued and the price a prospective purchaser would be likely to be willing to pay'.[550] He observed that the documents had been drafted by an experienced advisor, Merrill Lynch, and then 'fastidiously reviewed in order to carefully produce documents that would be likely to achieve the desired outcome'.[551]
44. The judge observed that 'the contemporaneous documentary evidence demonstrated that Hughes was completely on board with the notion of presenting the Joe White Business in a positive way'. This was additionally demonstrated not only by the contents of the Information Memorandum and the Management Presentation Memorandum, and his approval of the contents those documents, 'but also by what Hughes refrained from stating about the Joe White Business up until around mid-October 2013, including the failure even to make any mention of the Operational Practices'.[552]
45. The judge said this:

If Hughes had intended to represent the Joe White Business fairly and accurately then, at the very least, he would have included a reference to the Viterra Practices, the Viterra Policies, the inability of Joe White to obtain all the barley varieties as required by its customers, the inability to meet customer specifications on a regular basis (including with respect to customers who prohibited the use of exogenous gibberellic acid) and the fact that Joe White had insufficient storage at most of its plants. Naturally, if he had done so (if not in the Information Memorandum or the Management Presentation Memorandum, the finalisation of which was not ultimately his responsibility, then in the Operations Call and the Commercial Call), it would have been less likely that a prospective purchaser would have been induced by what had been stated about the Joe White Business. Indeed, such disclosure would have exposed a significant number of material statements in the Information Memorandum and the Management Presentation Memorandum to have been patently and materially incorrect, which would have had the inevitable consequence of a prospective purchaser re-evaluating its assessment of the Joe White Business. The fact that he did not state such matters was further indication that Hughes intended to induce a prospective purchaser to be interested in acquiring Joe White on the basis represented.[553]

1. The judge concluded that the evidence before him demonstrated that throughout the relevant corporate structure, 'there was a united intention to present Joe White in a positive manner', with the hope that this would result in a prospective purchaser, including Cargill, 'being induced to pay a very significant sum' for the Joe White business. This united intention was reflected in the making of the Financial and Operational Performance Representations to Cargill.[554]
2. The judge then turned to the Sale Process Disclaimers. He held that the intention to induce prospective purchasers, including Cargill, was not displaced by the Sale Process Disclaimers. The context in which the disclaimers were 'imposed', and the regime created for the verification and assessment of the information, 'was entirely consistent with the intention to induce Cargill to rely upon the Financial and Operational Performance Representations'. That regime meant that Cargill had limited means by which they could conduct their own investigations and analyses in assessing the Joe White business.[555]
3. As a consequence, the judge concluded that Viterra had made the Financial and Operational Performance Representations with the intention that Cargill Australia would rely upon them in entering into the Acquisition Agreement.

1. Viterra accepted that they had not raised the argument encompassed by ground 7 at trial.[556] However, they submitted that this did not matter, because intention was an essential element of Cargill's cause of action and, thus, it was a matter for Cargill to prove. Viterra submitted that if Cargill failed to make good an element of their case, Cargill must fail, even if the point was not taken at trial. Viterra submitted that their bare denial of Cargill's pleading on intention was sufficient, and that they had no obligation to notify Cargill prior to or at trial that they intended to rely upon the Sale Process Disclaimers to gainsay the requisite intention. Viterra relied upon Krakowski v Eurolynx Properties Ltd ('Krakowski'),[557] Goose v Wilson Sandford & Co ('Goose')[558] and Jovic v Lamont ('Jovic')[559] in support of this proposition.
2. As to the substance of the ground, Viterra submitted that the judge's error was to fail to distinguish between:

(a) the manner in which the representor intended that the representation should be understood; and > > (b) the manner in which a reasonable person in the position of the representee would have understood the representation (which is relevant to whether the representee was induced by the representations).

The former is an essential element of a deceit claim. But, Viterra submitted, the judge had 'assumed that the sense in which a reasonable person in Cargill's position would have understood the Financial and Operational Performance Representations was the same sense' in which Viterra had intended Cargill to understand them'. That assumption, it submitted, was an error.

1. Viterra submitted that there was no evidence of Viterra's subjective intention. In particular, there was no evidence of the 'sense' in which Hughes had intended the representations to be understood. They pointed out that Cargill had failed to call Hughes to give evidence, yet he was the only person whose knowledge of the relevant matters could be attributed to Viterra.[560] Viterra submitted that in order to make serious findings about fraud, inferences and speculations are not sufficient.[561]
2. Further, and importantly, Viterra submitted that the judge failed to consider Hughes' subjective intention in the light of the Sale Process Disclaimers. They submitted that Hughes must have known about the Sale Process Disclaimers, given that he was directly involved in the drafting of the Information Memorandum and the Management Presentation Memorandum.
3. Viterra submitted that the judge's finding that throughout the corporate structure there was a 'united intention to present Joe White in a positive manner' was irrelevant. That was because 'no person within the corporate structure, aside from Hughes, had knowledge that any of the propositions the subject of the Financial and Operational Performance Representations were false'. Thus, they submitted, the judge was wrong to rely upon the intention of other persons for the purpose of establishing the intention element of the deceit claim. Further, Viterra submitted that it was obvious that, in any sale, the seller would be seeking to present the subject matter of the sale in a positive manner.
4. Viterra concluded by submitting that, in the circumstances, the correct inference to be drawn was that 'Hughes never intended the Financial and Operational Performance Representations to be made in the requisite sense'. Accordingly, no such intention could be attributed to Viterra.

1. Cargill submitted that Viterra should not now be allowed to raise this new argument on appeal. They submitted that, by reason of Viterra not having raised the argument at trial, Cargill had been deprived of the opportunity to adduce evidence to meet the argument.
2. Cargill sought to distinguish Goose on the basis that the trial judge in Goose had not been satisfied that the defendant had made the representation with the intention that it should be acted upon. They submitted that the references to Jovic were inapposite.
3. Referring to Akerhielm v de Mare ('Akerhielm'), Cargill submitted that if Viterra wished to contend that there was some special sense in which Hughes understood the Financial and Operational Performance Representations, then the onus fell upon Viterra to show this.[562] Otherwise, they submitted, it was sufficient for Cargill to show that Hughes knew that the representations were false, or that Hughes had no honest belief in their truth; and that the judge so found.
4. Cargill submitted that the judge was permitted to, and did, find the requisite intention by inference; and that Hughes did not need to be called. They submitted that the inference that Hughes had intended Cargill to rely upon the Financial and Operational Performance Representations was irresistible. Cargill submitted that there was no sense in which the Financial and Operational Performance Representations could have been made honestly; and that even if Hughes had given evidence, there was nothing he could have said which would have changed that. Referring to Akerhielm, they submitted that there are situations where the subjective intention that the representor professes to have held is so far removed from how any reasonable person would have understood the representation that it is impossible to find that the representor acted honestly.[563]
5. Although Viterra did not dispute that proposition from Akerhielm, they submitted that in order to make a finding of subjective intention based upon how any reasonable person would understand the representations, the judge needed to consider the Sale Process Disclaimers; and he failed to do so.
6. Cargill submitted that Viterra never advanced an argument at trial that the disclaimers rendered the Financial and Operational Performance Representations honestly made. They submitted that Viterra were, and still are, unable to explain how the disclaimers rendered the Financial and Operational Performance Representations truthful. They submitted that, in any case, Cargill had conducted their own investigation of the information provided, in accordance with the Sale Process Disclaimers; and this was consistent with Hughes having subjectively intended Cargill Australia to understand the Financial and Operational Performance Representations in the requisite sense.
7. Cargill submitted that the disclaimers are only one relevant circumstance in ascertaining reliance, and that they are not determinative.[564] They submitted that Viterra's contention that Viterra subjectively intended for Cargill Australia to understand Viterra's conduct in a manner consistent with the disclaimers was an attempt to bypass the generally accepted proposition that disclaimers are ineffective in the face of deceit.
8. Finally, Cargill submitted the judge did not impermissibly aggregate the states of mind of multiple natural persons. They submitted that the representor's intention is a question of fact to be determined with reference to all the circumstances;[565] and that the intention of others within the corporate structure formed part of these circumstances.

Should Viterra be permitted to raise this new ground on appeal?

1. In our opinion, Viterra ought not be permitted to raise this new ground on appeal. Not only is there no real explanation for why the point was not raised at trial, and no exceptional circumstances,[566] but Viterra conceded that, had the point been taken below, it 'might have' affected the evidence that was adduced.[567] It is well established that where, had an issue been raised, 'evidence could have been given ... which by any possibility could have prevented the point from succeeding, [the point] cannot be taken afterwards'.[568]
2. Viterra sought to overcome this difficulty by arguing that Hughes' (and hence Viterra's) intention was an element of the cause of action in deceit, which meant that this was not a 'new point' on appeal. In order to understand that submission, it is necessary to address in some detail the cases on which Viterra relied.
3. Krakowski was relied upon by Viterra for the proposition that the intention of the representor was an essential element of the cause of action, which Cargill had to establish. They emphasised two key passages from the judgment of Brennan, Deane, Gaudron and McHugh JJ in support of their argument:

When fraud is alleged against a defendant, it is not enough to prove that the representation as pleaded was false. The words or conduct by which a representation is made may be understood in different senses. The words or conduct may be understood by a reasonable person in the position of the representee in one sense, by the representee in a second sense and by the representor in a third sense. Or the representee may understand the words or conduct in a sense which the representor knew the representee might understand them, albeit not in the sense in which a reasonable bystander would understand them. The differing senses in which words or conduct are understood must be borne in mind in determining whether the several elements of deceit are proved.

The sense in which a representation would be understood by a reasonable person in the position of the representee is prima facie the sense relevant to the question whether the representation is false. The sense in which a representation is understood by the representee is relevant to the question whether the representation induced the representee to act upon it. And the sense in which the representor intended the representation to be understood is relevant to the question whether the representation was made fraudulently.[569]

1. In contrast, Cargill emphasised a different passage from Krakowski:

In order to succeed in fraud, a representee must prove, inter alia, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood. In Akerhielm v De Mare the Privy Council said:

• The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made. This general proposition is no doubt subject to limitations. For instance, the meaning placed by the defendant on the representation made may be so far removed from the sense in which it would be understood by any reasonable person as to make it impossible to hold that the defendant honestly understood the representation to bear the meaning claimed by him and honestly believed it in that sense to be true ... (For the general proposition that regard must be had to the sense in which a representation is understood by the person making it, see Derry v Peek; Angus v Clifford; Lees v Tod, which authorities must, in their Lordships' view, be preferred to Amison v Smith so far as inconsistent with them.)[570]

1. Cargill submitted that this passage reveals that 'if there is a person in whose head this intention is supposed to reside, and if it is going to be posited that there was some limitation or special sense which affected that intent', then it is for Viterra to establish that. Cargill submitted that it was sufficient for the judge to rely upon what could be inferred about Hughes' intent which, it submitted, 'was perfectly straightforward and was sufficient' - namely, that Hughes knew the representations were untrue, and knew that a prospective purchaser was going to rely upon them. Cargill further submitted that the question identified in Krakowski and Akerhielm concerned an 'escape hatch' in circumstances where the representation was found to be false - namely, whether the representor honestly, but erroneously, believed the representation to be true. That, Cargill submitted, was not part of their case to establish. If that point was in issue, the onus shifted to Viterra.
2. We note at this point that, we do not accept that either Akerhielm or Krakowski make good Cargill's submission that the onus of proof, in relation to the sense in which the representations were intended to be understood, shifted to Viterra. That is made clear by the opening words of Cargill's quoted passage from Krakowski, that '[i]n order to succeed in fraud, a representee must prove ... that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood'. That conclusion is further supported by the second case upon which Viterra relied: Goose,[571] a decision of the Court of Appeal of England and Wales.
3. In Goose, Mr Wilson made a representation on behalf of the respondent, Wilson Sandford & Co, concerning ownership of certain precious stones. The representation was false. The trial judge (Rimer J) upheld a claim in deceit. The Court of Appeal upheld an appeal. Viterra relied upon the following passage from the judgment of the Court of Appeal:

In argument in this court counsel for Wilson Sandford & Co submitted that the implication found by the judge to have been false was not shown to have been the sense in which Mr Wilson intended it to be understood. Certainly we have not been directed to any part of the comprehensive judgment of Rimer J in which he could be said to have arrived at a conclusion on this point adverse to Mr Wilson. Counsel for Mr Goose suggested that the proposition formulated in the advice of the Privy Council in Akerhielm v De Mare could not be applicable because Mr Wilson had never claimed that he did not intend his words to be understood in the sense of the implication found by the judge. In our view that is an inadequate response. The onus of proving deceit rested on Mr Goose. It was for him to demonstrate that Mr Wilson had intended the reference to 'Peter's Stones' to be understood in the sense that they were available for use in the French venture because any incumbrances to which they were subject were capable of being discharged otherwise than out of the stones themselves or the proposed Swiss loan. There is no finding of the judge to that effect and, in our view, no basis on which the court could supply the omission.[572]

1. Viterra also relied upon Jovic, a decision of the New South Wales Court of Appeal. That was a negligence case in which, on appeal, the defendant sought to raise for the first time the question whether negligence on the part of the defendant, or anyone else, had caused the injury to the plaintiff. Viterra relied upon the following passages from the judgment of Campbell JA:

It can be error on the part of a trial judge to give a verdict for a plaintiff without deciding those issues that remained live at the trial which need to be decided in the plaintiff's favour to establish the cause of action on which the plaintiff sues. Further, if the evidence before the trial judge does not establish that the defendant is liable on that course of action, such an error can result, on appeal, in a verdict for the defendant.

However, there are significant restrictions on a litigant taking, on appeal, a point that was not taken below, if (a) that point is one that could have been cured by evidence at the trial or (b) evidence could possibly have been called which would otherwise have been relevant to that point, or (c) had the point been raised below, the respondent might have conducted the case differently at trial.

Notwithstanding that, as Heydon JA said in Ashrafi, concerning an argument sought to be raised on appeal that the evidence did not establish a duty of care:

[T]hese principles do not apply, because the defendant has not raised a new 'point'. Rather it is contending that the case pleaded and proved by the plaintiff at trial does not establish a relevant duty of care. Instead of the defendant raising a 'point', it is contending that there is an inadequacy in the plaintiff's handling of the point raised in the first instance by the plaintiff herself.

The situation is the same concerning any argument raised on appeal that the evidence did not establish some necessary element or elements of the plaintiff's cause of action.[573]

1. Viterra submitted that this was the situation in relation to ground 7: it alleged that the evidence did not establish a necessary element of Cargill's cause of action, and a ground of that kind could be taken for the first time on appeal.
2. Some care, however, needs to be taken in relying upon the passage from Ashrafi Persian Trading Co Pty Ltd v Ashrafinia ('Ashrafi'),[574] quoted by Campbell JA in Jovic. In that case, Heydon JA permitted the ground of appeal to be advanced because it did 'not seem possible for [the plaintiff] to have called any evidence, apart from what she did call', which could have defeated the ground of appeal.[575] That case is thus different from the present case, where the possibility of additional evidence was conceded.
3. In addition, in Jovic, Campbell JA continued as follows:

Allowing such a point to be taken on appeal is consistent with the practice that existed in New South Wales before the enactment of the Supreme Court Act 1970 whereby, on appeal to the Full Court after a jury trial in a civil action, it was open to the Full Court to enter a verdict for the defendant on the ground that there was no case to answer, even if no submission that there was no case to answer had been put in the court below: Hampton Court Ltd v Crooks. The basis on which that could be done is explained by Dixon CJ in Hampton Court at 372:

• At common law the Court in banc could not enter a verdict unless power to do so was reserved at the trial. Such a reservation was based upon a convention, although a traditional convention. The statutory power conferred upon the Supreme Court by s 7 of the Supreme Court Procedure Act 1900 takes the place of this practice. It is an independent power residing in the Full Court and is intended to avoid the necessity of a new trial existing at common law if no reservation had been made.[576]

1. However, the passage quoted by Campbell JA did not include the following sentence from Dixon CJ's judgment in Hampton Court Ltd v Crooks:

Of course if the Full Court is of opinion that the plaintiff might have mended his hand at the trial, had the insufficiency of his evidence been pointed out on an application either for a verdict by direction or for a non-suit, doubtless that would affect the exercise of the power.[577]

1. That is, Dixon CJ was acknowledging the importance of whether additional evidence would have been available, had the point been raised.
2. In the present case, the point sought to be agitated under ground 7 was not agitated below. It is a point on which additional evidence could have been called, had the insufficiency been pointed out. In our opinion, it is not sufficient for Viterra to point to the elements of the tort of deceit, and claim that the onus is on Cargill to establish each element. That is correct, but it was open to Cargill to consider that the evidence it had adduced was sufficient to make good their case. Had they been informed, whether by way of pleading or otherwise, that the 'sense' in which Hughes had understood the Financial and Operational Performance Representations was in issue in the manner now identified, they might have chosen to adduce additional evidence.
3. For these reasons, we would refuse leave to appeal in relation to ground 7.

1. We add, for completeness, that even if we had permitted Viterra to rely upon ground 7, we do not consider that it would be made out.
2. The gravamen of Viterra's complaint was that, in considering the manner in which Hughes (and thus Viterra) intended the pleaded representations to be understood, the trial judge had wrongly applied the first sense identified in Krakowski, and had not independently considered how Hughes had intended the representations to be understood in the context of, and by reference to, the disclaimers. They also contended that the judge had impermissibly aggregated the intention of several persons in determining the intention of Viterra, in circumstances where only the intention of Hughes was relevant.
3. In our opinion, the Viterra Parties' submissions pay insufficient regard to the passage from Akerhielm quoted in Krakowski, in particular the proposition that the meaning placed on a representation by a defendant 'may be so far removed from the sense in which it would be understood by any reasonable person' that it is 'impossible' to find that the defendant honestly understood the representation in that way, and honestly believed it to be true.
4. Further, in Krakowski, in considering the application of the principles to the facts of that case, the plurality (Brennan, Deane, Gaudron and McHugh JJ) said this:

A representation that the instrument of lease covered the whole of the agreement between Eurolynx and Swaeder bears only one meaning. If that representation was made consciously by Eurolynx or its solicitor, it must have been made fraudulently. There is no sense in which a representation in those terms could have been honestly made by Eurolynx or by its solicitor. But was Eurolynx or its solicitor conscious of the making of a representation in those terms?[578]

1. A similar comment may be made, and a similar question may be posed, in this case. If the Financial and Operational Performance Representations were made consciously by Hughes, and hence by Viterra, they must have been made fraudulently. There is no sense in which those representations could have been honestly made by Hughes. But was Hughes conscious of the making of a representation in those terms?
2. In our opinion the answer is plainly 'yes'.
3. The judge found that if there was information in the Information Memorandum and the Management Presentation that was misleading, which he found there was, then Hughes must have known that by virtue of his position.[579] He concluded that 'Hughes was fully aware of the general approach of implementing the Viterra Practices in order to allow Joe White to give the impression on an ongoing basis of a much higher level of compliance with customer requirements and specifications than that which was actually occurring'.[580] As for the tenth Financial and Operational Performance Representations, being that the Undisclosed Matters did not exist, the judge found that 'Hughes must have been aware that it was made and that it was false'.[581] The judge also found that Cargill's questions about Joe White's product 'must have demonstrated' to Hughes that Cargill was not informed about Viterra's policies (which Hughes was fully aware had been filed in a manner to conceal their true status).[582] The judge concluded as follows:

Hughes was fully aware as to the making of the Pre-Execution Statements that gave rise to the Financial and Operational Performance Representations. Accordingly, in addition to Viterra making the Financial and Operational Performance Representations, by reason of Hughes' knowledge being attributable to Viterra and his role in the sale process as explained above, Viterra knew they were false. Alternatively, in the circumstances referred to above, Hughes could not have genuinely believed any of the Pre-Execution Statements (and thus the Financial and Operational Performance Representations) were true. Even if that is incorrect, alternatively and at the very least, Hughes was reckless as to whether or not the Pre-Execution Statements (and thus the Financial and Operational Performance Representations) were true or false.[583]

1. As set out earlier, the judge then went on to consider whether Viterra made the Financial and Operational Performance Representations with the intention that Cargill should rely upon them in entering into the Acquisition Agreement. Contrary to Viterra's submissions, the judge plainly understood the nature of the inquiry, namely what was intended by the representor. The judge also observed that the disclaimers were relevant to this question, but not determinative of it.[584]
2. Whilst the judge referred generally to the intention of Viterra, and of 'those with responsibility for' the contents of the marketing material created by Glencore and its subsidiaries, he paid considerable attention to Hughes in his analysis of the intention question. He held that Hughes was 'completely on board' with presenting Joe White in a positive way, as revealed both by the contents of the marketing material and by what Hughes refrained from saying, despite knowing of the Operational Practices. The judge concluded that Hughes 'intended to induce a prospective purchaser to be interested in acquiring Joe White on the basis represented'; that is, Hughes knew the representations were false, as the judge had earlier found, but, knowing that, he intended Cargill to rely upon them in determining whether to purchase Joe White.[585]
3. Returning to the question posed in Krakowski, the evidence leads inexorably to the inference that Hughes consciously made the representations. There was nothing negligent or careless in his behaviour.
4. Nor, as the trial judge concluded, did the disclaimers alter that conclusion. As discussed above, in relation to ground 6, they did not modify the representations in such a way as to render them not false. They did not alter the fact that Hughes knew that the representations were false. They did not alter the fact that the Information Memorandum and the Management Presentation, in which the representations were made, and the sales process more generally, were intended to induce Cargill to purchase Joe White for a sum that reflected its past performance, without disclosure of the true basis on which that performance had been achieved. Nor did they alter the fact that the Viterra Parties controlled the information available to Cargill, through the data room process, and the deliberate omission of materials from the data room, so as to make it difficult for Cargill to do anything other than rely upon the information provided to it by the Viterra Parties.
5. We do not accept that the fact that Hughes was involved in drafting the Information Memorandum and the Management Presentation Memorandum, which contained various disclaimers, meant that he did not intend Cargill to rely upon the representations contained in those documents. It may be accepted that Hughes was aware of the disclaimers; and in that sense he was aware that Viterra sought to minimise its legal liability to the maximum extent permitted by law. But it does not follow that he did not intend the Financial and Operational Performance Representations to be made, and did not intend Cargill to rely upon them.
6. In all of the circumstances, it was open to the judge to infer that Hughes, and therefore Viterra, intended to make the representations and intended that Cargill would rely upon the representations. And, based on our review of the evidence, we would reach the same conclusion. It was not necessary for Cargill to call Hughes in order to prove that intention.
7. Thus, if we had granted leave to appeal on ground 7, we would have concluded that it must fail.
   • (16) Summary of conclusions on Financial and Operational Performance Representations claims
8. Viterra contended that the judge's finding of liability against them for misleading or deceptive conduct should be set aside on the grounds that the release in cl 10.3 of the Confidentiality Deed was effective (ground 1), that cl 15.4(b) of the Acquisition Agreement precluded recovery (ground 4), that the judge had failed to properly take into account the Sale Process Disclaimers and had thereby failed to assess the relevant conduct as a whole (ground 6), and that the judge had erred in finding that Cargill Australia had relied upon the Financial and Operational Performance Representations (ground 8).
9. We have not accepted these contentions. Whilst leave to appeal will be granted, Viterra's appeal on these grounds will be dismissed.
10. Viterra contended that the judge's finding of liability against them for deceit should be set aside by reason of cl 10.3 of the Confidentiality Deed (ground 2), cl 15.4(b) of the Acquisition Agreement (ground 5), the asserted failure to assess the conduct as a whole (ground 6), the asserted error as to reliance (ground 8), and in reliance upon a new argument as to intention (ground 7)
11. We have also rejected these contentions. Leave to appeal will be granted on grounds 2, 5, 6 and 8, but Viterra's appeal will be dismissed on those grounds. Leave will be refused on ground 7.
12. Glencore contended that the finding against it for misleading or deceptive conduct should be set aside on the grounds of the release in cl 10.3 of the Confidentiality Deed (ground 1), the asserted failure to assess the conduct as a whole (ground 6), and the asserted error in finding reliance (ground 8).
13. We have not accepted Glencore's contentions. Leave to appeal will be granted on grounds 1, 6 and 8, but the appeal on those grounds will be dismissed.
    • (17) Ground 3: Warranty Representations - Confidentiality Deed cl 10.3 and cl 10.4, and Acquisition Agreement cl 15
14. Given our conclusions on grounds 1, 2, 4 and 5, this ground concerning the construction of cl 10.3 and cl 10.4 of the Confidentiality Deed, and the operation of cl 15 of the Acquisition Agreement, cannot alter the outcome on the Warranty Representations claims. We nevertheless address the submissions made.
15. Clause 10.3 is set out in full earlier. It relevantly provides that:
    • Subject to clause 10.4
    • Cargill 'releases' the Viterra Parties
    • from 'any liability' which may arise 'directly or indirectly' in relation to the Confidential Information or the non-disclosure of any information
    • including from 'any negligence, default or lack of care ... or from any misrepresentation or any other cause'.
16. Clause 10.4 of the Confidentiality Deed relevantly reads: '[The Viterra Parties] shall be responsible for representations or obligations set forth in separate written agreements between the parties in accordance with the terms of those written agreements'.
17. By ground 3, the Viterra Parties contend that, properly construed, the words of cl 10.4 preserved Viterra's liability for the Warranties in the Acquisition Agreement only insofar as they gave rise to contractual claims. They contended that warranty-based claims under the Australian Consumer Law or for deceit were not preserved by cl 10.4.

18. The Viterra Parties submitted that the judge had failed to give effect to the words 'in accordance with the terms of those written agreements'. They submitted that the words meant that only contractual liability was preserved. They submitted that 'in accordance with' meant 'as provided by', and having the same legal effect. They submitted that this was a more businesslike construction. They submitted that given that Glencore and Cargill were based overseas, they were unlikely to have had in mind the Australian Consumer Law when they were contracting.
19. The Viterra Parties also referred to two contextual factors. First, they submitted that the provisions in the Confidentiality Deed whereby Glencore disclaimed responsibility for the information, and whereby Cargill agreed that it would make their own investigations, suggested that cl 10.4 only preserved contractual obligations created in separate written agreements. Secondly, they submitted that at the time the Confidentiality Deed was executed, Glencore and Cargill both knew nothing about the Joe White business. Thus, they submitted that the basis upon which the parties wanted to deal was one where the only liability that could arise was in relation to contractual obligations.
20. Cargill's submissions focused on the word 'responsible' in cl 10.4. They submitted that cl 10.4 provided that the Viterra Parties were 'responsible' for the representations and obligations set out in separate written agreements, such that cl 10.4 preserved all claims in connection with the Warranties, not just contractual claims.
21. Cargill submitted that the words 'in accordance with the terms of those written agreements' functioned to ensure that any representations and obligations contained in separate written agreements would be governed by the terms of the agreement which contained them, rather than by the terms of the Confidentiality Deed. They submitted that this was necessary because at the time of the Confidentiality Deed's execution, there were no separate written agreements in existence, so it was not possible to know the contents of any future written agreements.
22. Shortly prior to the hearing of the appeal, the Viterra Parties amended this ground so as to contend, in substance, that if Cargill's reading of the words 'in accordance with the terms of those written agreements' be correct, then Viterra had 'no responsibility for the Warranty Representations' by reason of cl 15.4(b) of the Acquisition Agreement (release of all claims upon sale of the business); or alternatively, the judge should have held that cl 15.8(b) (liability capped at $100 million) and cl 15.9 (exclusion of indirect loss) imposed a cap on Viterra's liability at $100 million and excluded liability for indirect loss.

23. The construction of cl 10.4 contended for by the Viterra Parties based upon the words 'in accordance with the terms of those written agreements' must be rejected.
24. The 'terms' of the Acquisition Agreement set out the contents of the Warranties (sch 4), expressly provide in the definition of 'Warranties' that they are also representations (cl 1.1), expressly provide that Viterra both warrants and represents that each Warranty is correct (cl 13.1), and expressly provide that Cargill has relied upon the Warranties (including, by reason of the definition, the Warranty Representations) (cl 13.7). These are representations for which Viterra (not Glencore) is 'responsible'. They are accordingly within cl 10.4, and are excluded from cl 10.3.
25. The purpose of the words 'in accordance with the terms of those written agreements' is well illustrated by the position in relation to Glencore. Glencore is a party to the Confidentiality Deed, but it is not a party to the Acquisition Agreement. Accordingly, no liability of Glencore's is preserved by cl 10.4 because it has no liability 'in accordance with the terms of those written agreements'.
26. The reliance upon the provisions of cl 15 in the amended ground was misplaced for the reasons already given as to why contractual provisions excluding or limiting liability for misleading or deceptive conduct cannot be relied upon where they appear in an agreement which the claimant has been misled or deceived into entering.
27. Ground 3 accordingly fails.
    • (18) Ground 9: Warranty Representations - reliance
28. By ground 9, Viterra contend that the judge erred in finding that Cargill Australia relied upon the Warranty Representations in entering into the Acquisition Agreement. Viterra contend that this was not possible, because the Warranty Representations were made at the same time as Cargill Australia's entry into the Acquisition Agreement - they thus could not have caused Cargill to enter into that agreement. In simple terms, cause must precede effect, not occur simultaneously with it.

29. At trial, Viterra contended that the Warranty Representations had not been made.[586] Viterra further contended that, if they had been made, then Cargill Australia had not relied upon them in entering the Acquisition Agreement, because the representations were not made before Cargill Australia entered into the agreement.[587]
30. The judge said that the terms of the Acquisition Agreement set out the 'expressly agreed position'.[588] In that regard he referred to cls 13.1, 13.4(a) and 13.7(a).
31. The judge found that cl 13.1 of the Acquisition Agreement, which said that '[Viterra] represent and warrant ... that each Warranty is correct and not misleading on the date of this agreement and ... on the Completion Date', meant that 'the act of representing occurred simultaneously with the act of warranting'.[589] He also found that the Warranty Representations were made at the same time as when the agreement was entered into.[590] That conclusion is not inconsistent with the Viterra Parties' submissions on this issue. Indeed, Viterra now relies upon this finding to advance ground 9.
32. By cl 13.4(a), Cargill Australia acknowledged and agreed that it had not, in entering into the Acquisition Agreement, relied upon anything except the Warranties. The judge noted that 'Warranties' was defined in the Acquisition Agreement as meaning both the 'warranties and representations set out in Schedule 4'. The judge said that cl 13.4(a) was 'entirely consistent' with reliance upon the Warranty Representations.[591]
33. Clause 13.7(a) read (emphasis added):

[Cargill Australia] has entered into this agreement and will Complete in reliance on the Warranties as they are given on the terms of this agreement.

The judge said this was an 'express acknowledgement ... of entry by Cargill Australia in reliance on the Warranties (which included the Warranty Representations)'.[592]

1. In any case, the judge found that a fair inference arose from the terms of the Warranty Representations that Cargill Australia had relied upon them, because the representations were 'calculated to induce [Cargill Australia] to enter into [the Acquisition Agreement]' and Cargill Australia had in fact entered into the agreement.[593]

2. Viterra relied upon the United Kingdom High Court decision of Sycamore Bidco Ltd v Breslin ('Sycamore'), where Mann J said:

There is a conceptual problem in characterising provisions in the contract as being representations relied on in entering into the contract. The timing does not work. The normal case in misrepresentation involves the making of a representation, and as a result the entering into of the contract. That does not work where the only representation is said to be in the contract itself. Miss Newman expressly disclaimed the relevant representations being made at any earlier time. In some cases that problem is solved by an express provision making certain contractual statements representations. In such a case the parties have agreed as to their nature and how they should be treated. However, that is not the present case.[594]

1. When asked whether the present case fell into the exception posited in Sycamore, where an express provision in a contract makes certain contractual statements representations, Viterra submitted that the terms of the Acquisition Agreement 'cannot be determinative' of reliance, it being a question of fact.
2. Viterra submitted that in drawing the inference of reliance, the judge made 'speculative observations'. They submitted that 'if a case was to be run on the basis of facts, then the facts should have been clearly pleaded and put in the argument before the judge'.
3. Cargill submitted that the terms of the Acquisition Agreement established reliance at the time Cargill Australia entered into the agreement. They submitted that, in any case, a fair inference of reliance arose.
4. Cargill submitted that if Viterra's case be right, then a contractual warranty would never amount to misleading or deceptive conduct. They submitted that Viterra's submission ran contrary to established authority. They referred to RCR Energy Pty Ltd v WTE Co-Generation Pty Ltd ('RCR Energy'),[595] Campbell v Backoffice,[596] MWH Australia,[597] Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd ('Accounting Systems').[598]
5. Viterra responded that the present case was unique in that cl 15.4(b) had denied Cargill Australia any contractual remedies it might have, but that would not be so in all cases.
6. Viterra distinguished RCR Energy on the basis that it concerned reliance upon representations by claimants not party to the contract, after the representations had already been made; and that in RCR Energy, it had not been necessary to address the issue of contemporaneous reliance. They submitted that the same two points were true of Accounting Systems.
7. Viterra submitted that Campbell v Backoffice supported their submissions. They quoted French CJ as follows:

[I]t is not an answer to a plea of misleading or deceptive conduct based on misrepresentation to assert that the misrepresentation is contained in a contractual document.

...

The pleading did not in terms set out precisely how Mr Campbell represented Sch 3 to Backoffice. The representation is said to have been made on or about 24 January 2005, so it is reasonable to infer that it was alleged to have been closely connected in time with the execution of the contract ... [N]either the primary judge nor the Court of Appeal dealt with the question ... whether Mr Weeks relied upon the two Sch 3 representations found to have been false and material. Characterisation of Mr Campbell's conduct in this respect and whether it caused the claimed loss cannot be determined on this appeal absent the critical findings of fact necessary to determine those questions.[599]

1. Viterra conceded that in MWH Australia, Nettle and Buchanan JJ found that the plaintiff had relied upon a representation contained in a contract in entering into that same contract. Viterra submitted that this was obiter dicta; and that their Honours in MWH Australia had not been taken to Campbell v Backoffice. Viterra cited Warren CJ's dissent, submitting that her Honour had been 'alive to this factual issue'.

2. We accept the Viterra Parties' submission that RCR Energy and Accounting Systems do not assist Cargill, for the reasons given in oral argument. However, that is not sufficient for the Viterra Parties to make good this ground. In our opinion, as the trial judge concluded, the terms of the Acquisition Agreement provide a complete answer to the proposition that the Warranty Representations did not cause Cargill Australia to enter into the Acquisition Agreement.
3. In that regard, Sycamore does not assist Viterra - to the contrary, it assists Cargill. In Sycamore, the warranties in the contract were not also representations. The contract clearly distinguished between 'Representations' and 'Warranties'.[600] Thus the 'conceptual problem' identified by Mann J arose. However, as Mann J also said, the conceptual problem may be 'solved by an express provision making certain contractual statements representations'.[601] That is precisely what occurred in this case. 'Warranties' is defined in cl 1.1 of the Acquisition Agreement as meaning both the 'warranties and representations set out in Schedule 4' (emphasis added). By cl 13.1, '[Viterra] represent and warrant' that 'each Warranty is correct and not misleading'. Furthermore, the terms of the Acquisition Agreement go further than contemplated by Mann J in Sycamore as a solution to the conceptual problem, and in cl 13.7 expressly record the parties' agreement that Cargill entered into the Acquisition Agreement in reliance on the Warranty Representations.
4. This is sufficient to dispose of ground 9, but it is appropriate to make some observations about Buchanan and Nettle JJA's judgment in MWH Australia. In our opinion, that judgment shows that there is no logical or conceptual problem with contemporaneous reliance. In that case Wynton Stone Australia Pty Ltd ('Wynton Stone') had performed work for MWH Australia Pty Ltd ('MWH') under a contract. When Wynton Stone later merged with Taylor Thompson Whiting Pty Ltd ('TTW'), MWH was invited to execute a deed of novation between the three parties. The terms of the deed were as follows:

1. Substituted contract to take over liability

TTW undertakes to perform the contract [with MWH] and to be bound by its terms and conditions in every way as if it were a party to the contract in lieu of WS.

2. Acceptance of transfer by client

The client [MWH] releases and discharges WS from all claims and demands whatsoever in respect of the contract and accepts the liability of TTW under the contract in lieu of the liability of WS and agrees to be bound by the terms of the contract in every way as if TTW was named in the contract as a party thereto ...

4. Client's undertaking

The client undertakes to pay and accepts its liability to WS to pay all moneys due and owing under the contract up to the date of this deed and to TTW as and from such dates. WS acknowledges that the services to be performed under the contract by WS prior to the date of this deed have been performed in accordance with its terms.

1. After the deed was executed, it transpired that work that Wynton Stone had previously done for MWH was defective. MWH sued Wynton Stone for breach of contract, and in negligence. On appeal, two issues that arose were whether cl 2 released Wynton Stone from liability in contract and tort for the work; and whether Wynton Stone's acknowledgement in cl 4 constituted misleading or deceptive conduct.
2. After considering the authorities, Buchanan and Nettle JJA found that the acknowledgement in cl 4 constituted misleading or deceptive conduct, and that a fair inference arose that MWH had relied upon it in entering into the deed.[602] They also found that, properly construed, cl 2 of the deed did not release Wynton Stone from the relevant liabilities.[603] It followed, then, that MWH had suffered no loss by relying upon cl 4 in entering into the deed, because its actions at general law remained extant. But this did not in any way diminish the strength of their Honours' reasoning in relation to MWH's reliance upon cl 4.
3. Campbell v Backoffice did not escape their Honours' consideration. After noting that causation was not proved in that case, Buchanan and Nettle JJA said this:

At all events, if one looks at the acknowledgement in cl 4 of the deed in the light of the relevant surrounding facts and circumstances and the course of conduct leading up to the execution of the deed, it appears to be a material representation calculated to induce MWH to enter into the deed and make the payment. Absent evidence of the kind which was held to be determinative in Campbell, common sense dictates the conclusion that it played at least some part in inducing MWH to enter into the deed and make the payment. We do not consider that the acknowledgement can be regarded as uninfluential on the mind of MWH considering whether to accept the novation and make payment for what had already been done. It follows, in our judgment, that a fair inference arises that the representation operated as an inducement.[604]

1. Warren CJ agreed with Buchanan and Nettle JJA on cl 2, but not on cl 4.[605] Her dissent, however, was not concerned with the purported logical problem of contemporaneous reliance. She said this:

When an alleged misrepresentation is contained in a document or a part of a document, the court is bound to analyse that document by reference to the circumstances surrounding its production and dissemination ...

Here, MWH's failure to properly develop this claim at trial has denied the court, both at trial and on appeal, the ability to properly contextualise the deed within the surrounding circumstances. MWH invites the court to isolate cl 4, and, in my view, draw far-reaching inferences from its language. Like the trial judge, I cannot make such a finding on this narrow understanding of the entire course of conduct of which cl 4 forms only a small part. Such a finding would be inconsistent with authority that emphasises that the fulcrum of any claim under s 52 of the Act is 'causation', and that such causation can only be decided through a proper appreciation of the context in which conduct occurs.[606]

1. The Viterra Parties accepted that the judgment of Buchanan and Nettle JJA in MWH Australia is against them, but contended that on this issue their Honours' remarks were by way of obiter, so that we are not bound to follow them. Even assuming that be so, we consider that their Honours' judgment is highly persuasive. We make three additional observations.
2. First, the deed in MWH Australia differed markedly from the agreement at hand. Clauses 13.4(a) and 13.7(a) of the Acquisition Agreement provide clear evidence that Cargill Australia in fact relied upon the Warranty Representations.
3. Secondly, in circumstances where the warranties had been negotiated extensively by the parties, the 'relevant surrounding facts and circumstances and the course of conduct leading up to the execution of the deed' and 'common sense', as Buchanan and Nettle JJA said, suggest that Cargill Australia did in fact rely upon the Warranty Representations. Further, as the primary judge said, the inference of reliance is 'buttressed by the fact that on 2 August 2013 Cargill required the Warranties to be given both at the date of the Acquisition Agreement and at the date of Completion'.[607]
4. Thirdly, the procedural history of MWH Australia was described as of 'Byzantine complexity'.[608] There had been many claims, and the trial judge had found the pleadings to be prolix and unsatisfactory. Thus, he told the parties that he would decide the case 'only upon the issues which emerged from the pleadings and, even then, only on those issues which were pressed in final address'.[609] It was in these circumstances that Warren CJ decided the issue of reliance. In explaining her divergence from Buchanan and Nettle JJA, her Honour said this:

It is elementary to the just conduct of appeals, that where the ability to lead 'contrary evidence' or properly 'answer' the question of inducement has been denied to the respondent by the appellant's conduct of its case at trial, that such an inference cannot and should not be raised in its favour. ...

[T]o allow MWH to advance this claim during an appeal hearing would be to punish Wynton Stone for MWH's failure to properly conduct its case before the trial judge. It would involve this court tolerating a significant procedural unfairness. The court is largely precluded by MWH's conduct at first instance from embarking upon the kind of broad investigation required of it in order to satisfy itself with respect to a claim of this type.

...

MWH had adequate opportunity to provide his Honour with the means to understand the facts and circumstances surrounding entry into the deed. As his Honour properly noted they did not avail themselves of that opportunity; 'nothing ... [was] said about it other than an assertion'.[610]

1. In contrast to the way Warren CJ characterised what had occurred in MWH Australia, here the arguments were put fulsomely to the judge.[611] The Acquisition Agreement and the surrounding circumstances clearly support a finding of reliance. In our opinion, the judge's conclusion was correct.
2. For the foregoing reasons, ground 9 fails.
   • (19) Summary of conclusions on Warranty Representations claims
3. Ground 3 contended that as a matter of construction, cl 10.4 of the Confidentiality Deed only preserved contractual claims in relation to the Acquisition Agreement, and not claims in misleading or deceptive conduct, or deceit, founded upon the Warranty Representations.
4. Ground 3 was amended to contend, in the alternative, that Viterra had no responsibility for the Warranty Representations under the Australian Consumer Law, due to cl 15.4(b) of the Acquisition Agreement; and, in the further alternative, Viterra's liability for the Warranty Representations was capped at $100 million and did not include any liability for indirect loss, due to cls 15.8(b) and 15.9 of the Acquisition Agreement.
5. We have not accepted those contentions. Leave to appeal on the amended ground 3 will be granted but the appeal on that ground will be dismissed.
6. Ground 9 contended that Cargill Australia could not have relied upon the Warranty Representations in entering into the Acquisition Agreement because the representations were not made prior to the formation of the agreement. Leave to appeal will be granted but the appeal on that ground will be dismissed.
   • (20) Ground 11: Pre-Completion Representations - causation
7. Given our conclusions on other grounds, the outcome of the appeal cannot be altered by the outcome on ground 11. Even if the arguments of the Viterra Parties on ground 11 were to succeed, the outcome on liability, and (subject to the damages grounds) the orders made, would not change.
8. By ground 11, the Viterra Parties challenge the judge's conclusion that Cargill Australia was entitled to damages under s 236 of the Australian Consumer Law upon the basis of the Pre-Completion Representations. The judge so concluded notwithstanding that he found that Cargill had not relied upon the Pre-Completion Representations, being sceptical of and unsatisfied with what they had been told.[612] The judge found loss had been suffered 'because of' the Pre-Completion Representations, because Cargill Australia had been deprived of the opportunity to obtain properly informed legal advice as to whether it was entitled to terminate the Acquisition Agreement prior to Completion.[613]

1. The Viterra Parties challenge the judge's conclusions on two separate bases. First, they contend that, because there was no reliance, there can be no causation. Secondly, they contend that there was no proper basis for the conclusion Cargill Australia could have, or would have, 'terminated' the Acquisition Agreement.
2. As to the first basis, the Viterra Parties submitted that:
   • (1) The Pre‑Completion Representations could not have been causative of loss because Cargill Australia did not believe, or were sceptical about, the representations made.
   • (2) The Pre‑Completion Representations were pleaded as positive representations; and, therefore, the correct counterfactual to adopt was what Cargill Australia would have done had the Pre‑Completion Representations not been made, not what Cargill would have done had the Viterra Parties made full disclosure.
   • (3) In any case, any loss arising because of their conduct had occurred when Cargill Australia entered into the Acquisition Agreement and the Pre‑Completion Representations did not and could not add to that loss.
3. As to the second basis, the Viterra Parties submitted that Cargill had pleaded that they had been deprived of the opportunity to receive legal advice that Cargill Australia could 'terminate' the Acquisition Agreement; yet, the Viterra Parties submitted, at trial Cargill had advanced a different case, being that its solicitors, Allens, would have advised Cargill Australia that it could seek rescission at general law, in equity, or under the Australian Consumer Law.
4. The Viterra Parties submitted that, in any case, Allens would not have advised Cargill Australia that it had a right to 'terminate' the Acquisition Agreement. This was because there was uncertainty, at that stage, about the possibility of repudiation. In this regard, the Viterra Parties' case, as articulated in oral argument, turned on the proposition that the word 'terminate', as used in the statement of claim, had the technical meaning of 'unilaterally terminate at common law', not the ordinary meaning of 'bring to an end' (by one of various possible mechanisms, including by rescission for misrepresentation or by an order under the Australian Consumer Law).
5. Further, the Viterra Parties submitted that it would have been impractical to seek relief under the Australian Consumer Law from a court in the period of time between the making of the Pre-Completion Representations and Completion. They submitted that even after Completion, Cargill Australia had not sought rescission or termination under the Australian Consumer Law.

1. Cargill submitted that reliance is not necessary under s 236 of the Australian Consumer Law. Evidence from the period leading up to Completion was referred to extensively, to show that the Pre-Completion Representations were false, and designed to lure Cargill Australia into completing.
2. Cargill submitted that the Viterra Parties had oversimplified the 'because of' test under s 236 of the Australian Consumer Law. They submitted that the Viterra Parties had treated it as an oversimplified 'but for' test, whereby misleading statements are 'excised in the counterfactual'. They submitted that the correct counterfactual to adopt was not what Cargill would have done had the Pre‑Completion Representations not been made. Rather, the correct counterfactual was what Cargill would have done had it known the true position of the Joe White business. In this counterfactual, Cargill submitted, they would have obtained legal advice and terminated.
3. Cargill submitted that for the Pre-Completion Representations claim, there was no need for Cargill to show that it suffered loss in addition to the loss suffered upon execution of the Acquisition Agreement. They submitted that Cargill's claim for loss suffered by completing the agreement is a separate claim which is independent of its claims for loss suffered by executing the agreement.
4. Cargill submitted that the judge was correct to find that Cargill Australia would have obtained legal advice and terminated. They submitted that the judge found that Cargill Australia would not have completed the acquisition had it received the relevant legal advice. They submitted that the Viterra Parties had unduly focused on the language of 'termination' when, in reality, the judge had considered 'a host of available remedies [under s 237], including termination'.[614] They submitted that notwithstanding that the pleadings used the language of 'termination', Cargill had run the case at trial based on a range of mechanisms by which Cargill Australia could have brought the agreement to an end and not paid the purchase price.

5. The judge devoted considerable attention to the steps taken by Cargill Australia to obtain legal advice and to consider its position based upon the limited disclosure as to the Operational Practices that was made in October 2003. In substance, the judge concluded that Allens were unable to advise that Cargill Australia could terminate the Acquisition Agreement and refuse to complete on the basis of the limited material which had been disclosed.[615] The misleading or deceptive information given to Cargill Australia in the Pre-Completion Representations was significant in this context.
6. The judge's factual analysis is not glaringly improbable or contrary to compelling inferences. His conclusion that Cargill Australia would have embarked upon a course directed at termination, and would have refused to complete, had the truth been revealed, was compelling. In that regard, we consider that when Cargill Australia pleaded that, had it known of the true position, Allens could have advised it that it could terminate the Acquisition Agreement, the word 'terminate' is to be understood as meaning 'bring to an end'. We reject the Viterra Parties' attempt to confine the scope of the pleading by reference to a technical interpretation of the word 'terminate'.
7. If the true position had been revealed, and fully informed advice had been obtained, it was most probable that Cargill Australia would have refused to complete and either instituted court proceedings itself, or defended any proceedings instituted by Viterra. In either eventuality, the court would have had ample power under the Australian Consumer Law, and on other grounds, to terminate the Acquisition Agreement, in the sense of relieving Cargill Australia of any obligation to pay the $420 million. There are likely to be many permutations of the possible events which could have transpired, but if the true position had been revealed before Completion, it seems most improbable that Cargill Australia would have completed and paid the $420 million.
8. But do those conclusions mean that Cargill Australia suffered a loss 'because of' misleading or deceptive conduct constituted by the falsity of the Pre‑Completion Representations? Misleading or deceptive conduct is conduct having a 'tendency to lead a person into error'.[616] Section 18 of the Australian Consumer Law provides that a person must not engage in conduct that is misleading or deceptive 'or is likely to mislead or deceive'. Thus, normally, such a claim would be based upon reliance. In substance, the claim would be that the misleading conduct led the representee into error.
9. In s 236, the loss or damage recoverable is not that suffered by reason of 'reliance' but loss or damage suffered 'because of the conduct' of another in contravention of s 18. In Campbell v Backoffice, Gummow, Hayne, Heydon and Kiefel JJ said:

Giles JA was right to point out that reliance is not a substitute in the context of the Fair Trading Act for the essential question of causation. Moreover, it is also right to observe, as Giles JA said, that '[i]t may be artificial to speak of reliance in determining what action or inaction would have occurred if the true position had been known'.[617]

1. Their Honours were referring to what Giles JA had said in the judgment below, being the New South Wales Court of Appeal decision of Campbell v Backoffice Investments Pty Ltd.[618] Immediately after the passages quoted above, Giles JA said, in the same paragraph:

Of particular significance to the present case, causation may be found notwithstanding that any belief in a representation is qualified by doubt, and even when the representee seeks to protect itself against the possibility that the doubt is justified. If the representation still operates on the representee's action or inaction which occasions loss or damage, the loss or damage is suffered by the misleading or deceptive conduct, notwithstanding that the label of reliance may not appropriately describe what occurred.[619]

1. In Havyn Pty Ltd v Webster, Santow J (with whom Tobias JA and Brownie AJA agreed) summarised the approach to causation in the context of misleading or deceptive conduct as follows:

Causation is a question of fact to be determined by reference to common sense and experience, and one upon which policy considerations and value judgments necessarily enter. In that respect, certainly in cases of complexity which warrant this and perhaps more generally, a two-stage test of causation is to be applied in which the Court considers (1) whether factually the conduct in question is a historical cause of the damage, and (2) if so, whether normatively the defendant ought to be held legally responsible for that damage. The law looks at what influences the actions of parties, acknowledging that people can be swayed by several considerations to varying extents, rather than considering cause and effect in mathematical or philosophical terms.[620]

1. Finding that a loss occurred 'because of' representations that were not relied upon is unusual. The facts of this case, however, are also unusual. The positive assertions made in the Pre‑Completion Representations were misleading or deceptive because of the Undisclosed Matters. The Pre‑Completion Representations both perpetuated and restated the misrepresentations made earlier. In the unusual circumstances of this case, we do not consider that the judge made an error in concluding that the loss claimed was suffered 'because of' the misleading conduct.
2. We repeat our initial observation that the outcome on this ground of appeal cannot alter the outcome on the appeal itself or upon the orders which were made (subject to the grounds concerning damages).
3. Accordingly, ground 11 also fails.
   • (21) Ground 12: Other Bidders Representations - whether made, reliance and loss
4. By ground 12, the Viterra Parties contend that the judge erred in concluding that the Other Bidders Representations were made. They also contend that the judge erred in concluding that Cargill Australia incurred a loss of $15 million by relying upon the Other Bidders Representations in entering into the Acquisition Agreement.
5. To briefly recap, shortly prior to execution of the Acquisition Agreement, an executive of Glencore, Chris Mahoney, had two phone conversations with Koenig, a board member of Cargill, Inc, directed towards persuading him that Cargill should increase their offer for Joe White. The offer submitted by Cargill at the conclusion of the Phase 2 due diligence process had been $405 million. This was substantially higher than any other offer. Mahoney was seeking to persuade Koenig to increase the offer to $420 million. Amongst other things, Mahoney was alleged to have said in the first conversation that there were other bidders 'there', 'at that number' or 'at that level'. The judge found a representation was made that there were other bids equal to or higher than Cargill's bid. The judge also found that a representation that it was 'necessary' for Cargill to increase their bid was made. The judge held that these representations were 'demonstrably false'.[621]
6. Cargill agreed to increase their offer. They did so on the basis that the Viterra Parties would compromise on certain disagreements as to the terms of the Acquisition Agreement. That was conveyed in the second phone conversation between Koenig and Mahoney.

1. As to the issue of whether the representations were made, the Viterra Parties submitted that the evidence did not establish that the Other Bidders Representations were made in the first call between Koenig and Mahoney. They submitted that the phrase 'he's got other bidders there' which appears in an email sent by Koenig immediately after the first call meant 'no more than ... he's got other bidders', rather than that Mahoney had other bidders 'at that number or at that level'. They submitted that the fact that the allegation was fraud bears upon the level of conviction required for the Court to infer that the Other Bidders Representations were made in the first call. The Viterra Parties submitted that anything said in the second call between Mahoney and Koenig did not matter because by that point Koenig had already been given an instruction to offer $420 million.
2. As to reliance, the Viterra Parties challenged the judge's findings on reliance upon three bases.

(a) First, the evidence demonstrated that Page was the ultimate decision-maker as to how to respond to the first call.[622] > > (b) Secondly, 'a strong theme' in Cargill's internal discussions after the first call was that they were unsure whether they could rely upon what Mahoney had said.[623] > > (c) Thirdly, Page's ultimate decision, which was reached before the second call was made, was that Mahoney's call, and the $15 million increase, could be leveraged to resolve certain matters in Cargill's favour.[624]

1. Cargill submitted that an adverse inference should be drawn against the Viterra Parties as to what was said in the two calls because Mahoney was not called to give evidence without any explanation for his absence.
2. Cargill submitted that the judge's finding that, in response to a question from Koenig in the first call as to why Cargill needed to increase its bid by $15 million, Mahoney had said he had other bidders there, at that level or number, was plainly open on the evidence. They submitted that in circumstances where Mahoney's statement was in direct response to a question of why Cargill needed to increase their bid, Mahoney's response could only have been rational, and could only have had persuasive force in the bargaining process, if 'there' referred to price.
3. In any case, Cargill submitted that the Viterra Parties did not articulate a reason as to why this Court should reject the finding that what was referred to as the 'Necessity Representation' was made, being that it was 'necessary' for Cargill to increase its bid by $15 million to secure the acquisition of Joe White.[625]
4. Cargill adopted the judge's reasons for rejecting the three bases upon which the Viterra Parties sought to challenge reliance.[626] They submitted that it was permissible for the judge to infer reliance, and that it was the 'only sensible inference to draw'.[627]
5. Cargill submitted that the evidence showed that the decision to increase the bid was a group decision by senior executives, and even if Page had the final say, that would not negate the reliance of the group. They submitted that whilst the evidence showed that the executives had doubts, they took Mahoney at his word.

6. Given the conclusions on other grounds, the conclusion on ground 12 cannot alter the outcome. In any event, no error in the trial judge's analysis has been established in relation to the judge's conclusions as to what was said in the first call, based upon Koenig's evidence and the contemporaneous documentary evidence.
7. Koenig's evidence was that the first call occurred early on the morning of 2 August 2013 (Minneapolis time). Koenig's evidence left no doubt that the purpose of Mahoney's call was to persuade Cargill Australia to increase its offer by $15 million. The second call occurred approximately two hours later. By then, a decision had been made to agree to pay the extra $15 million on the basis that Viterra agreed to resolve five issues as to the terms of the Acquisition Agreement in favour of Cargill Australia.
8. We have reviewed the transcript of Koenig's oral evidence. It is fair to say that Koenig had difficulty in clearly differentiating what was said in the first call and what was said in the second call. On the basis of his evidence, we do not consider that there is any real doubt that Mahoney told him at some point, referring to Cargill's then Final Bid of $405 million, that there were other bidders 'there', 'at that number' or 'at that level'. The relevant issue is not whether that was said, but whether it was said in the first conversation or the second. If it was in the second, it could not sustain the claim made because by then the decision to pay the extra $15 million had already been made.
9. The account of the first conversation in Koenig's witness statement was struck out and he was required to give his evidence orally on that issue. When recounting what was said in the first conversation for the first time, he did not refer to statements having been made that there were other bidders 'there', 'at that number' or 'at that level'.[628] However, when then recounting the second call, he said a number of times that statements to that effect were made 'again' or 'one more time',[629] and he repeated that evidence under cross-examination.[630] When it was put to Koenig in cross-examination that he had not asked Mahoney in the first call why Cargill needed to improve its bid by $15 million, Koenig responded '[s]ure we did'.[631] However, he then added that he believed he had asked that question 'if I recall correctly'.[632]
10. All of this may have left the position uncertain if it were not for the fact that Koenig circulated an email immediately after the first conversation. The email to other Cargill executives relevantly read as follows:

Chris Mahoney from Glencore just called. Same message in that we are very close on details but he wants to cut a verbal agreement and get his [sic] done but needs $A15 myln more above our A$405 myln.

He was vague on his rationale on why the $A15 myln more other than allegedly he's got other bidders there. I asked him if that included the same surety and speed of closure and he said we think so.

He's [sic] was driving on his way to France. Said he was making the rounds to other contestants (not sure he would be telling them) but would like a call back within 2 hours to confirm that the deal is done at A$420 and will have the rest of the details sorted out.

1. In our opinion, the email written immediately after the first call leads inevitably to the conclusion that the statements about other bidders being 'there', 'at that number', or 'at that level' were made in the first call. It is logical that that should be so. The email records Mahoney as having given the 'rationale' for his request for an increased bid, that he had other bidders 'there'. In the context, that must mean at or about the $405 million level, otherwise it would not explain why the offer needs to be increased. That conclusion is made more compelling by the passage in the email which then records Koenig asking him if that included the same surety and speed of closure. Clearly, he was asking whether the other bidders who were 'there' were 'there' upon the same terms.
2. The judge saw and heard Koenig give his evidence. Mahoney was not called and no explanation was given for his absence. In our opinion, the email supports the claim made based upon what was said in the first call. We consider that the judge's factual conclusions were well founded.
3. Mahoney's phone calls and the deceitful statements he made were specifically intended to persuade Cargill to increase their offer by $15 million. Certainly, the senior Cargill executives who considered the matter had doubts about the veracity of what Mahoney had said, and Page as the most senior executive involved may well have made the final 'call', but the process involved group consideration and, in the end, they accepted and did what Mahoney falsely told them 'needed' to be done. Mahoney thereby achieved his objective.
4. There is nothing 'glaringly improbable' or 'contrary to compelling inferences' in the judge's conclusion that the Other Bidders Representations were made and relied upon, and that Cargill Australia suffered a loss of $15 million because of Mahoney's deceit.
5. Ground 12 accordingly fails.
   • (22) Ground 10, and contention 3: No Reliance Representations
6. By ground 10, Viterra[633] challenges the judge's finding that, although Viterra relied upon the No Reliance Representations, which the judge found were misleading or deceptive, Viterra suffered no loss 'because of' this reliance.[634]
7. The No Reliance Representations were conveyed by cls 13.4(a) and (d) of the Acquisition Agreement.

8. Viterra submitted that the judge wrongly criticised the counterfactual position adopted by Viterra.
9. Viterra's case on loss at trial (the 'counterfactual') was that if Viterra had not been misled by the No Reliance Representations, it would not have entered into the Acquisition Agreement, and it would not have been exposed to Cargill Australia's claims. Accordingly, Viterra submitted that if Cargill Australia's claims succeeded, and Cargill Australia was thereby entitled to damages, then Viterra would suffer recoverable loss to that extent together with any costs incurred and for which it was liable. The judge rejected this approach because it proceeded on the assumption that Viterra could retain the benefit of the Acquisition Agreement, being disposal of the Joe White business and receipt of the purchase price, whilst contending for a loss founded upon the proposition that if not misled they would not have entered into the agreement.
10. Before this Court, Viterra submitted that, regardless of the counterfactual, the judge had failed to take into account the losses that Viterra had suffered in defending the proceeding, and the fact that Viterra had been exposed to costs orders.
11. Cargill submitted the judge had correctly held that Viterra's counterfactual 'bore no resemblance to the circumstances that would have arisen if Cargill Australia had not engaged in misleading or deceptive conduct'.[635] It was further submitted that the judge had correctly held the true counterfactual to be that Viterra would never have received the purchase price, and it would have continued to own a business it did not want, with the next highest bidder bidding $335 million, presumably also basing their bid upon misleading information.[636]
12. Cargill submitted that since Viterra's counterfactual was bad, two consequences followed. They were:

(a) first, that Viterra had failed to establish causation; and > > (b) secondly, that there was no basis for the judge to award an alternative (or any) measure of damages.[637]

13. By contention 3, Cargill contends that for the same reasons that cl 15.4(b) could not be relied upon to defeat the misleading or deceptive conduct claims, and the deceit claims - namely, that the contractual provisions relied upon had been procured by the impugned conduct - cls 13.4(a) and (d) could not be relied upon by Viterra to mount a counterclaim against Cargill Australia, or to otherwise defeat Cargill Australia's Australian Consumer Law or deceit claims.
14. Cargill submitted that the authorities they had cited in the context of grounds 4 and 5, being Brighton, Clark Equipment, Petera and Warwick Entertainment, applied equally here. Reliance was also placed upon Venerdi, where Jackson J held that the public policy prohibition against contracting out of statutory liability for misleading or deceptive conduct cannot be circumvented by counterclaiming on the basis of no reliance representations made in the contract procured by that conduct.[638]
15. Viterra responded that whether misleading or deceptive conduct has occurred is a question of fact. Accordingly, it was submitted that it does not matter whether cls 13.4(a) and (d) have any legal effect; and that cls 13.4(a) and (d) are merely facts to be taken into account in the analysis, even if their legal effect is negatived.[639]
16. In this context, the Viterra Parties again denied the existence of what they referred to as the 'Brighton rule'. They also submitted that there was no principled or cogent reason to create such a rule.

17. The judge found that the No Reliance Representations were misleading or deceptive to the extent that they represented that Cargill had not relied upon representations beyond those contained in the Warranty Representations. There is no notice of contention contesting this conclusion.
18. Given his other findings, what was put to the trial judge as to the loss, amounted to the following:

(a) the No Reliance Representations were misleading in so far as Cargill Australia in fact relied upon representations other than the Warranty Representations; > > (b) Viterra, relying upon the misleading No Reliance Representations, entered into the Acquisition Agreement; > > (c) under the Acquisition Agreement, Cargill Australia agreed to pay, and Viterra received, $420 million for a business with a true value of $251.1 million; > > (d) Cargill Australia agreed to pay $420 million because it was misled, and indeed defrauded, by Viterra; and > > (e) Viterra unsuccessfully defended claims made by Cargill Australia for misleading or deceptive conduct and deceit, incurred costs, and was ordered to pay damages, interest and costs. This is Viterra's 'loss' under s 236.

19. The judge was correct to reject the counterfactual Viterra contended for, namely, a loss on the sale itself, for the reasons which he gave, which were, in our view, obvious.
20. Further, if Cargill Australia had not relied upon representations beyond the Warranty Representations (that is, if the No Reliance Representations had been true), and if Viterra had thereby succeeded in defeating the claims other than those founded on the Warranty Representations, Viterra would still have been liable for the full amount of the damages awarded on the claim founded on the Warranty Representations.
21. Perhaps as a consequence of the above, the Viterra Parties focused their complaint in this Court upon the costs they incurred and their liability for costs.
22. The previously quoted passage from Havyn Pty Ltd v Webster concerning causation in the context of misleading or deceptive conduct is apposite again here.
23. The loss allegedly constituted by costs incurred, or ordered to be paid, in unsuccessfully defending the proceedings is not a loss which has been historically caused by the misleading conduct. It has been caused by the decision, unjustified as it has transpired to be, to defend the proceeding.
24. Further, without deciding, it seems to us that Jackson J's conclusions in Venerdi that a loss of the kind claimed is not 'loss or damage' within the meaning of s 236 at all, and that claims of this kind are necessarily inconsistent with Henjo, are cogent. Those issues are best left to be decided in a case where the claim is not clearly misconceived.
25. This ground must also fail.
    • (23) Summary of conclusions on the liability grounds
26. The Viterra Parties have failed on all of their liability grounds.
27. Leave to appeal will be granted on grounds 1, 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12, but the appeal on those grounds will be dismissed. Leave to appeal will be refused on ground 7.
28. As to Cargill's contentions, contention 1 has been upheld in part. Contention 2 has been upheld. No conclusion has been reached on contention 3.
29. We turn, then, to the grounds of appeal concerning loss and damage.

1. Grounds 13-21 concern loss and damage. Several of these grounds raise significant issues of principle, and others raise particular issues upon which it is contended that the judge erred.
2. Significant issues of principle are raised by grounds 13 and 15.

(a) Ground 13 contends that the judge erred in holding that what is referred to as the 'Potts v Miller approach', rather than what is referred to as the 'left in hands approach', was the appropriate approach to determine whether loss had been suffered by Cargill Australia and the amount of that loss. > > (b) Ground 15 contends, in the alternative, that the judge erred in his application of the Potts v Miller approach by misconceiving the measure of the 'true value' of the business which Cargill Australia acquired.

3. Section 236(1) of the Australian Consumer Law relevantly provides that where a person suffers loss or damage 'because of the conduct of another person' and that conduct contravened s 18, the claimant may recover the amount of the loss or damage by action against that other person. The legislation does not prescribe any particular 'approach' to be adopted in the task of determining whether loss or damage was suffered 'because of' the contravening conduct, or in the task of determining the amount of any such loss or damage. The approaches described by reference to Potts v Miller and the expression 'left in hands' emerge from the authorities, not from the legislation.
4. Grounds 14 and 16 overlap to some extent with grounds 13 and 15. Ground 14 contends that the judge failed to account for all 'value generating attributes' of the acquired business; and ground 16 contends that the judge erred in relation to his treatment of synergies resulting from the acquisition of Joe White by Cargill.
5. Ground 21 also overlaps to some extent with grounds 13, 14, 15 and 16. It contends that the judge's assessment was erroneous because it 'ignored or was inconsistent with evidence concerning the actual performance of and/or value of the Joe White business' in the period following its acquisition by Cargill, and that the judge ought to have concluded that Cargill had failed to prove that they had suffered any loss by reason of the Viterra Parties' conduct, or alternatively that its actual loss was substantially less than that assessed by the judge.
6. Grounds 17-20 raise particular issues in relation to which it is contended that the judge erred. Those issues concern:

(a) the appropriate discount rate (ground 17); > > (b) various factual assumptions said to have been made by Cargill Australia's expert witness, Gordon Klein, when assessing the true value of Joe White (ground 18); > > (c) the legitimacy of Klein's assumption concerning non-compliant malt (ground 19); > > (d) the appropriate forecast of general capital expenditure (ground 20).

7. Before addressing the judge's treatment of the damages issues and the grounds of appeal, it is necessary to review some High Court authorities which address the 'approaches' referred to in grounds 13-16, to review some other authorities relied upon in the submissions and raised at the hearing, to address the position of a trial judge assessing expert evidence and the position of this Court in that regard, and to then return to the primary judgment to address certain relevant factual findings not dealt with, or not fully dealt with, already.
8. The loss and damage grounds (13-21) will be addressed under the following headings:
   • (1) Potts v Miller versus 'left in hands' - the relevant High Court authorities.
   • (2) Other authorities relied upon in the submissions and raised in the hearing.
   • (3) The position of the trial judge assessing expert evidence and this Court's position.
   • (4) Further relevant factual findings in the primary judgment.
   • (5) The primary judgment on loss and damage.
   • (6) Issues raised in relation to loss and damage.
   • (7) Ground 13: Potts v Miller or 'left in hands'.
   • (8) Ground 15: True value.
   • (9) Grounds 14 and 16: Synergies.
   • (10) Ground 17: Discount rate of 13.7 per cent.
   • (11) Ground 18: Valuation assumptions.
   • (12) Ground 19: Klein's assumption concerning non-compliant malt.
   • (13) Ground 20: General capital expenditure.
   • (14) Ground 21: Actual loss.
   • (15) Summary of conclusions on the loss and damage grounds.
   • (1) Potts v Miller versus 'left in hands' - the relevant High Court authorities
9. The case which gives its name to the approach the judge is said to have erroneously adopted, Potts v Miller,[640] is a decision of the High Court in 1940. In modern times the High Court has addressed in some detail relevant issues raised by grounds 13-16 on at least four occasions.

1. Potts v Miller concerned a claim by a person who alleged that they had entered into an underwriting agreement, extended it, and then accepted an allotment of shares, induced by fraudulent misrepresentations. The claimant succeeded at first instance and obtained a verdict from a jury. An appeal by the defendant was successful before the Full Court of the Supreme Court of New South Wales on the basis that the claimant had failed to establish loss. The High Court dismissed a further appeal. The judgment subsequently accepted as establishing the relevant principles is that of Dixon J.
2. Dixon J concluded that the jury's verdict ought not to stand because the evidence was not sufficient to find that the alleged misrepresentations had been proven. He nevertheless also addressed the issue of damages.
3. Dixon J referred to what was at that time treated as an 'inflexible rule' that, where there was a purchase or allotment of shares as a consequence of deceit, the measure of damage is the amount paid, with the defendant then receiving 'credit' for 'the fair or real value of the shares estimated as at the time of allotment or purchase'.[641]
4. Dixon J quoted, with apparent approval, observations of Lord Atkin expressing dissatisfaction with the rigidity of this rule and indicating that there ought not to be any difference in the measure of damages depending upon the nature of the transaction, be it shares or some other asset.[642]
5. Dixon J explained that the rationale of the rule appeared to be to avoid what might otherwise be an unjust application of 'but for' reasoning whereby losses caused by entirely extraneous matters might be assessed as part of the damages. This possibility would be precluded if damages were assessed by reference to the 'real value' of the shares at the time of purchase.[643]
6. He then said:

This reasoning makes it necessary to distinguish between the kinds of cause occasioning the deterioration or diminution in value. If the cause is inherent in the thing itself, then its existence should be taken into account in arriving at the real value of the shares or other things at the time of purchase. If the cause be 'independent', 'extrinsic', 'supervening' or 'accidental,' then the additional loss is not the consequence of the inducement.[644]

1. Dixon J observed that the 'rigidity' of the rule was alleviated to some extent by two qualifications. The first was that the market value of the shares could be disregarded if the market itself was distorted by fraud or manipulation or some other improper practice.[645] The second qualification was expressed by Dixon J as follows:

The second qualification is that the real value of what the plaintiff got must be ascertained in the light of the events which afterwards happened, because those events may show, for instance, that what the shares might have sold for was not their true value or that it was a worthless company; or looking back from subsequent events to the earlier state of the company it may appear that at the time the shares were taken the assets of the company did not correspond in value to the money paid.[646]

1. Dixon J said that the burden lies upon the plaintiff of proving that the shares acquired were, at the time when they were allotted or purchased, of less value than the amount paid or payable for them.[647] He observed that 'as the authorities stand', the plaintiff had to establish that the fair, real or intrinsic value of the shares was less than their face value.[648]
2. Dixon J held that the evidence in the case was insufficient to show that, at the relevant time, the fair value of the shares was less than their face value.[649]

1. The Potts v Miller approach was affirmed shortly thereafter in Toteff v Antonas,[650] which applied the Potts v Miller approach to the determination of damages for deceit in relation to the sale of a business. The purchaser had paid £2,200 for the business as a result of the fraudulent misrepresentations of the vendor. An expert valued the business at £856, and it was resold by the purchaser for £900. The trial judge accepted its value was £900. The purchaser claimed damages of £1,300, but the trial judge reduced the damages on the basis that the misrepresentations concerned only the value of the goodwill and left the value of the plant and stock unaffected. The goodwill had been dealt with separately in the contract and had been assigned a value of £200. Thus, the trial judge awarded the purchaser damages of £200. The High Court held that that mode of assessing damages was erroneous. The purchaser was entitled to recover the full difference between the purchase price and the value that he obtained. Dixon J said as follows:

In an action of deceit a plaintiff is entitled to recover as damages a sum representing the prejudice or disadvantage he has suffered in consequence of his altering his position under the inducement of the fraudulent misrepresentations made by the defendant. When what he has been induced to do is to make a purchase from the defendant and part with his money to him in payment of the price, then, if the transaction stands and is not disaffirmed or rescinded, what is recoverable is 'the difference between the real value of the property, and the sum which the plaintiff was induced to give for it'. As Sir James Hannen P in Peek v Derry pointed out, the question is how much worse off is the plaintiff than if he had not entered into the transaction. If he had not done so he would have had the purchase money in his pocket. To ascertain his loss you must deduct from the amount he paid the real value of the thing he got. ... The measure of damages in an action of deceit consists in the loss or expenditure incurred by the plaintiff in consequence of the inducement on which he relied diminished by the corresponding advantage in money or moneys worth obtained by him on the other side: [he cited Potts v Miller]. You look to what he has been induced to part with as the initial step. He is entitled to say that but for the fraud he would never have parted with his money. But he cannot recover the entire price he has paid unless the thing prove wholly worthless. If the thing has any appreciable value the damages must be reduced pro tanto.[651]

1. The High Court's consideration of the relevant issues in the modern era begins with Gould v Vaggelas.[652]
2. There were many complex problems of loss and damage raised by Gould v Vaggelas, of which the issue addressed in Potts v Miller was but one. In this context the judgments of Gibbs CJ, Brennan J and Dawson J are important.
3. Citing Potts v Miller, Gibbs CJ observed that in an action for deceit where the claimant has been induced to enter into a contract of purchase, it was 'well established' that the measure of damage 'usually applicable' is the difference between the 'real value' of the asset at the time of purchase and what the claimant paid for it. Events that happen after the time of purchase 'may throw light on the real value of the property at that time'.[653]
4. Gibbs CJ emphasised that what he described as the 'usual rule' is only a special application of the general principle that in an action for deceit a plaintiff is entitled to recover a sum representing the prejudice or disadvantage suffered as a consequence of altering his position under the inducement.[654]
5. In this context, the relevant issue raised in Gould v Vaggelas was whether a claimant might recover more than the difference between the amount paid and the real value of the property at the time of purchase. Gibbs CJ held that in some circumstances a claimant might recover more. He said that the rule is not quite as inflexible as Potts v Miller might suggest and that if a purchaser, besides paying more than the business was worth, had suffered additional losses, which resulted directly from the fraud, he ought to be compensated for them.[655]
6. In that context Gibbs CJ referred, with apparent approval, to a decision the Court of Appeal in the United Kingdom in Doyle v Olby (Ironmongers) Ltd ('Doyle v Olby').[656] There, the Court of Appeal assessed damages in relation to the acquisition of a business by deducting from the price paid all of the benefits which the plaintiff eventually received, including the price for which he resold it three years after the purchase, and then adding the amount of further debts incurred by the claimant during the period in which the business was conducted.[657]
7. Gibbs CJ's description of what was done in Doyle v Olby was essentially the 'left in hands' approach. Its application had increased the loss assessed.
8. In his judgment, Brennan J relevantly observed:

Where the plaintiff has been induced to enter into a contract to buy property and on discovering the fraud affirms it, the measure of his damages may be confined to the difference between what he paid for the property and what it was truly worth, but it will not be so confined if there are subsequent losses which come within the rule as stated and which flow directly from the fraudulent inducement.[658]

1. Dawson J described the difference between the price paid and the 'actual value of the thing purchased at the time of the purchase' as the 'prima facie' means by which damages for a purchase induced by fraudulent misrepresentation were to be calculated.[659] Dawson J emphasised, however, that this was merely the 'prima facie' measure and that additional consequential losses might be recovered if they flowed directly from the fraudulent inducement.[660]
2. Dawson J then said:

The difference between the price paid and the actual value at the time of purchase should reflect the future of profitability or unprofitability of the business because the actual value of the business at the time of purchase must depend upon its potential as well as its present returns. Moreover, it is possible to have regard to the events which occur after the purchase in order to assess the profitability of the business at the time of purchase: Potts v Miller. If, as prima facie it is, the subsequent profitability or unprofitability of the business is to be taken into account in the calculation of its actual value at the time of purchase, then care must be exercised in the calculation of consequential losses to ensure that the same ground is not covered twice.[661]

1. As had Brennan J, Dawson J said the relevant issue was assessment of damages after a defrauded party had affirmed the acquisition. Dawson J explained that this was one reason why the 'prima facie' approach was adopted. He explained that this approach is based upon the proposition that 'at the moment of purchase the purchaser becomes, unless the thing bought is of no value at all, the owner of a realizable asset the value of which must be taken into account'. Dawson J said:

It is an approach which bears in mind that, if the parties can be restored to their former position, rescission is one of the remedies for deceit so that, failing rescission, it seeks to return to the defrauded purchaser the money which he has been tricked into paying less any advantage which he has received from the purchase.[662]

1. Dawson J treated the decision in Doyle v Olby as something of an anomaly. He suggested it might be explicable by the fact that the position taken by the landlord in that case meant that the claimant had acquired an asset that was not realisable. Dawson J suggested that the decision carried with it the danger of consequential losses not directly attributable to the deceit being held to be recoverable, and he suggested that it was a case that was ultimately dependent on its own facts which should not be allowed to obscure the relevant principle.[663]

1. Up until this point, contentions seeking to ameliorate the rigidity of the Potts v Miller approach had been directed at establishing loss additional to that which might be calculated on the basis of the price paid minus the real value at the time of purchase. In contrast, the High Court's decision in Kizbeau Pty Ltd v W G & B Pty Ltd ('Kizbeau')[664] addressed the situation where subsequent events were contended to have the effect of reducing the loss or damage recoverable.
2. In Kizbeau, a motel business was acquired. There was a planning restriction on the permitted use of a particular section of the premises. For a period after the acquisition the purchasers operated in ignorance of, and without regard to, the restriction, and later the effect of the restriction was substantially removed by a council amendment. The purchaser brought proceedings for contravention of s 52 of the TPA and succeeded at first instance and on appeal to the Full Court of the Federal Court. On appeal to the High Court, one issue was whether, in assessing damages, regard should be had to the fact that the business was conducted without regard to the restriction for a period and to the fact that the restriction was subsequently removed.
3. The High Court held that these circumstances had to be taken into account and that the courts below had erred in failing to do so.
4. In a joint judgment, the Court (Brennan, Deane, Dawson, Gaudron and McHugh JJ) said:

In an action for damages for deceit for inducing a person to enter a contract of purchase, which is an action that is closely analogous to an action for damages for breach of s 52, the courts have consistently held that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it. Nevertheless, although the value is assessed as at the date of the acquisition, subsequent events may be looked at in so far as they illuminate the value of the thing as at that date. A distinction is drawn, however, between subsequent events that arise from the nature or use of the thing itself and subsequent events that affect the value of the thing but arise from sources supervening upon or extraneous to the fraudulent inducement.[665]

1. Their Honours went on to explain that later events that arise from the nature or use of the thing itself are admissible to prove the value of the thing. They gave as an example the takings of a business subsequent to a purchase, evidence of which would generally be admissible both to prove that a representation concerning takings was false, but also to prove the true value of the business at the date of purchase. That was so even if there was some difference between the conditions under which the business was conducted before and after purchase, subject to due allowance for such differences. In contrast, if the decline in takings had been caused by business ineptitude or unexpected competition, evidence of subsequent takings would not be admissible to prove the value of the business at the date of purchase, because such matters are treated as 'supervening events'.[666] They said that:

In some cases of deceit, it may also be proper to compensate the defrauded party not only for the difference between the value of the thing acquired and the price paid for it but also for losses induced by the fraud and directly incurred in conducting the business. All of these principles are appropriate to the assessment of damages under s 82 where a breach of s 52 of the Act has induced a person to purchase a business.[667]

1. The High Court said that if there had been no changes to the restriction, and if the purchaser had complied with it, the principles applicable to damages 'would not be open to doubt', and that Kizbeau would have been entitled to the difference, as at the date of purchase, between the value of the business and the price paid for it. But those features of the case complicated it.[668]
2. The valuer, upon whom the claimant had relied, had assessed the value of the business on the implicit assumption that the restriction would continue to operate unchanged. The Court held 'he should have considered the likelihood that that condition might change even if it had not been changed when he valued the business'.[669]
3. Then, as to the position of the Federal Court, the High Court said it was bound to take into account all the information at the time of making its award, including the alteration of the restriction which had then occurred. The Court said:

Armed with the knowledge that the conditions in the town planning permit had been changed, the Federal Court was bound to act upon that knowledge even though the change in the conditions occurred after the date of sale.[670]

1. After referring to some other relevant decisions, the High Court said:

In all of these cases, although the court has valued the assessed damages at the date when the plaintiff suffered the relevant loss, it has had to consider whether a subsequent event truly indicates or reflects the measure of the loss earlier suffered. Whether the subsequent event gives a reliable indication or reflection of the loss depends on all the circumstances.[671]

1. The next relevant High Court decision is Marks,[672] which concerned a class action alleging misleading or deceptive conduct by reference to a false representation made as to the margin on the base interest rate of a loan facility. Whilst the representation was misleading, the problem for the claimants was that they had been given the opportunity to refinance without penalty, and the facility gave them terms which were superior to any others available. The High Court held that there was, in the circumstances, no loss.
2. Much of the argument was addressed by reference to cases on deceit. In relation to these arguments, the plurality, McHugh, Hayne and Callinan JJ, emphasised that the analogy with deceit should not be pressed too far. They said:

The question presented by s 82 is not what would be allowed in deceit, it is what loss or damage has been caused by the conduct contravening the Act.

It follows, then, that a comparison must be made between the position in which the party that allegedly has suffered loss or damage is and the position in which that party would have been but for the contravening conduct.[673]

1. McHugh, Hayne and Callinan JJ explained that there will be no relevant loss unless it is shown that the party could have acted in some other way which would have been of greater benefit or less detriment to it than the course it in fact adopted. By way of example they said that a party misled will have suffered loss if a chose in action was acquired which was worth less than the amount paid for it. They also said that in other cases there may be recovery of consequential losses, although no losses of that kind were alleged in that case.[674]
2. They then said:

It is necessary, then, to determine whether the value of what was acquired is less than what was paid. How is value to be assessed? It is to be assessed objectively, not according to what either or both of the parties to the contract believed that it would obtain from the contract. That is, the value of what in fact was acquired is to be identified according to what price freely contracting, fully informed parties would have offered and accepted for it. It is only by comparison with the value assessed in this way that there can be an assessment of whether the party that is misled could have obtained some greater benefit or incurred less detriment. What is important is what that party could have done, not what it might have hoped for or expected.[675]

1. These observations were directed at a situation where the claimants had suffered no detriment as a consequence of being misled because there was no alternative course which was open to them which was more advantageous or less disadvantageous. The quoted passage is not, in light of the other authorities in this area, to be interpreted as requiring a determination of value by reference to market value, as opposed to 'true value'. Rather, it is concerned to emphasise that in this context the assessment is not an assessment of what may be described as 'expectation' losses.
2. Gaudron J agreed that there was no compensable loss. Like the plurality, she said that relief under s 82 was not to be confined by analogy with actions in contract or tort.[676]
3. Gummow J also agreed that there was no compensable loss. He said:

The measure of damages recoverable in actions of a varied nature for which s 82 provides is not to be determined on the basis that the appropriate guide in most cases will be found by asking what would have been the measure if the common law did what it does not do, namely treat as a tort any facts which happen to give rise to an action under s 82. Analogy, like the rules of procedure, is a servant not a master.[677]

1. He said that any loss incurred was caused by the claimants not taking the option to refinance, and not by the misleading conduct.[678]

1. The issue arose in the High Court again in 2004 in HTW Valuers v Astonland Pty Ltd ('HTW Valuers').[679]
2. HTW Valuers concerned the purchase of a small arcade referred to as 'the Plaza'. Prior to the purchase the claimant sought advice from a valuer as to the likely impact upon the Plaza of a substantial shopping centre being developed nearby. In substance, the claimant received misleading advice and subsequently suffered a loss on the acquisition of the arcade.
3. The relevant valuation evidence was to the effect that the market value of the Plaza declined progressively as the impact of the new shopping centre became more and more pronounced. A valuation undertaken at the time of the acquisition, when the shopping centre was still uncompleted, indicated a modest loss, whereas a valuation three years later, when the impact of the shopping centre was fully known, revealed a much greater loss. The trial judge assessed the loss as the difference between the price paid and the later valuation when the impact of the shopping centre was known. Before the High Court, the defendant argued that where an asset is acquired on the strength of advice about a 'contingency' the measure of damages ought to be, not the loss which the claimant suffers when the contingency happens, but rather the value which the market would place on the risk associated with the contingency.
4. The Court (Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ) analysed the authorities, noting that the approach of 'subtracting value from price' is 'commonly employed' where there is an acquisition induced by deceit.[680] The Court emphasised that a key qualification which prevents this approach from being inflexible is that the 'test' depends not on the difference between price and market value, but on the difference between price and real value.[681] As Dixon J had said in Potts v Miller, real value must be ascertained in the light of events which subsequently happen where those events show what was the true value of the thing acquired at the time it was acquired.
5. In the case before it, the High Court held that the decline in value which was the subject of the valuation evidence was not the result of some extraneous or supervening event. It existed, and was crucial to, the value of the Plaza at the time the claimant acquired it. Accordingly, although the trial judge's reasoning was criticised, the outcome was correct.
6. The Court explained that the task of assessing loss is different to the task of valuation. On a valuation it is necessary to assess risk, but when assessing loss the court must have regard to the fact that market assessments of risk may be erroneous. In other words, it may be shown that what a market valuation would assess as a risk, was in reality something inevitable.[682]
7. There was no issue in HTW Valuers of any possible 'supervening' event. In this context, the Court indicated that the lapse of time can be significant. The Court said:

While the course of actual events is excluded to a greater degree the further back in time the dates at which values are stated, the later values, being based on fuller experience, and being unaffected by extraneous causes in this case, are capable of pointing to the underlying reality of earlier times.[683]

1. In HTW Valuers, the plaintiff had advanced an alternative case, expressly described as the 'left in its hands' approach. The High Court said that there was 'certainly no reason why an approach of that kind is not open'. The Court said:

The deduction of true value at the acquisition date from the price paid is no more than a guide to the assessment of damages under s 82. Section 82 does not in terms refer to that method, and the width of s 82 permits other approaches to the assessment of damages so long as they work no injustice. The alternative approach advocated by the plaintiff has particular appropriateness in the present circumstances. That is because a primary reason for the common adoption, in assessing damages in deceit, of the test of comparing the price paid for an asset with its true value when acquired is the desirability of separating out losses resulting from extraneous factors in the later history of the asset. Here, the trial judge found that the decline in value of the Plaza had no cause other than the completion of the Beach Road Shopping Centre. The present case is from that point of view an unusually pure one.[684]

1. The final High Court decision to which it is necessary to refer is the decision in Berry v CCL Secure Pty Ltd ('Berry').[685] In that case Dr Berry was fraudulently induced by a representative of Securency Pty Ltd ('Securency', the predecessor to CCL Secure Pty Ltd), to sign a document terminating an agency agreement. Dr Berry and his company sued Securency under s 82 of the TPA to recover the loss or damage they claimed to have suffered, being the loss of commission they would have received under the agency agreement had it not been terminated. Securency contended that, had Dr Berry not signed the document, it would have lawfully terminated the agreement with effect from 30 June 2008. Dr Berry contended that the agreement would have continued indefinitely or at least until June 2010, when Securency terminated all of its other agency agreements. The High Court held that damages were to be assessed on the basis that the agreement would not have been terminated before 30 June 2010 on the basis that Securency had not adduced sufficient evidence to make good its case.[686]
2. The nature of the claim and the alleged loss suffered in Berry were different from those in issue here, but important observations were made in the reasons for judgment.
3. Bell, Keane and Nettle JJ summarised the effect of Potts v Miller and Gould v Vaggelas as follows:

Potts v Miller and Gould v Vaggelas relevantly stand as authority that, where a claimant is induced by deceit to enter into a transaction, the claimant is entitled to recover by way of damages the actual damage 'directly' flowing from the fraudulent inducement - including losses flowing from causes 'inherent' in the transaction - but is not entitled to recover losses of which the cause is 'independent', 'extrinsic', 'supervening' or 'accidental' such that those losses cannot rationally be regarded as caused by the deceit.[687]

1. Gageler and Edelman JJ considered how a court should approach the assessment of loss under the relevant legislative provisions. They said this:

A feature of the statutory action [under s 82 of the TPA] is that the statute itself requires for the action 'the suffering of loss or damage', requires a connection between the loss or damage and the contravention of s 52 through the requirement that the loss or damage 'must be sustained "by" the contravention', and instructs that 'the measure of compensation is "the amount of" the loss or damage sustained'.

'Economic loss may take a variety of forms' all of which involve the identification of some 'prejudice or disadvantage' that has occurred. Plaintiffs pursuing the statutory action are initially responsible for formulating how such loss or damage as they claim to have suffered is to be identified. The initial question must always be: 'what loss or damage does the plaintiff allege'? The plaintiff then bears the legal onus of proving that the identified loss or damage has been suffered by the contravention of which they complain and of establishing the amount of that loss or damage. The plaintiff bears, in other words, the ultimate burden of establishing both the required connection with the contravention and quantum by inferences drawn from the whole of the evidence. That legal onus is constant.[688]

1. Whilst the legal onus is constant, Gageler and Edelman JJ pointed out that 'the practical burden of introducing evidence can and often does shift'. They observed that whether and how and to what extent the evidentiary onus shifts depends in large measure on 'how the plaintiff chooses to formulate the loss or damage claimed' and upon 'how the parties thereafter choose to join issue on the questions of connection with the contravention and quantum that arise in respect of the chosen formulation'.[689]

1. The principles to be drawn from these High Court authorities as to the measure of damage where a party is misled or deceived into acquiring an asset are the following:
   • (1) The measure described by Dixon J in Potts v Miller as the difference between the price paid and the true value at the time of acquisition is 'well established' as 'usually applicable' (Gould v Vaggelas, per Gibbs CJ). It has been 'consistently held' to be the 'proper measure' (Kizbeau), and described as 'commonly employed' (HTW Valuers).

However, the legislation does not prescribe this approach: it is no more than a guide (HTW Valuers). It is a particular application of the general principle that a plaintiff is entitled to recover a sum representing the prejudice or disadvantage suffered as a consequence of altering its position (Gould v Vaggelas).

• (2) True value is to be determined objectively by reference to what price freely contracting, fully informed parties would have offered and accepted, not according to what either or both of the parties to the contract believed it would obtain (Marks).
• (3) However, true value is not the same as market value. Events subsequent to the acquisition may indicate or reflect the true value and thus the measure of the loss earlier suffered. This is, to use Dixon J's own word, a 'qualification' on the Potts v Miller approach. Subsequent events may fall within the ambit of this 'qualification' if they are unaffected by 'extraneous causes' (HTW Valuers). Whether subsequent events give a reliable indication or reflection of the loss suffered upon acquisition depends on all the circumstances (Kizbeau).
• (4) Additional consequential losses, over and above those calculated by the Potts v Miller approach, may be recoverable in an appropriate case (Gould v Vaggelas, per Gibbs CJ), although given that true value at the time of the acquisition is based upon projected profitability (in the light of subsequent events where appropriate), care would then need to be taken to avoid double counting (Gould v Vaggelas, per Dawson J). In a similar way, subsequent events may reveal that an apparent loss at the time of acquisition had not in fact been sustained as matters had transpired (Kizbeau).
• (5) One reason why the Potts v Miller approach is generally adopted is the desirability of separating out losses resulting from extraneous factors in the later history of the asset (HTW Valuers). This is particularly so where there has been a significant lapse of time.
• (6) A 'left in hands' approach may be particularly appropriate where no issue of separating out subsequent losses resulting from extraneous events arises (HTW Valuers).
• (7) There is not a binary choice between a Potts v Miller approach and a 'left in hands' approach (and there may be other options in certain cases) in which one option is wrong and the other correct. Both might be open in a given case (HTW Valuers). In every case, the initial question is: what loss does the claimant allege (Berry)?

1. The trial judge began the section of his judgment addressing Cargill Australia's loss by setting out the relevant legal principles for the assessment of loss suffered for misleading or deceptive conduct. In that context he reviewed the High Court authorities discussed above and a number of other relevant judgments.[690] He relied in particular upon HTW Valuers and Kizbeau.
2. The judge observed that the starting point is the consideration of the words of s 236 itself. He said the court is not constrained by principles of common law: the court can look to actions for deceit as analogous to claims for compensation pursuant to s 236, 'but only as a guide'. He said that in the current proceeding the measure of damages for the tort of deceit provides 'helpful guidance'. Under this approach the objective is to place Cargill Australia in the position it would have been in if not for the relevant conduct, 'namely not paying the purchase price of $420 million and not acquiring Joe White (but accounting for the benefit received by actually taking ownership of Joe White represented by ascertaining its real value)'.[691]
3. The judge referred to the fact that the High Court in HTW Valuers had recognised that the Potts v Miller approach was the 'common approach'. The judge emphasised the difference between true or real value and market value, quoting what was said in HTW Valuers in relation to that issue. The judge observed that the 'rule' in Potts v Miller is not universal, inflexible or rigid, and is only a 'rule of practice'.[692]
4. The judge then said that Cargill had relied upon what they had referred to as the 'Falconer principle'. This was a reference to Housing Commission of New South Wales v Falconer ('Falconer'),[693] a decision of the New South Wales Court of Appeal. Notwithstanding that that decision concerned the determination of market value, Cargill had relied upon it for the general principle that future events are admissible 'not to prove a hindsight but to confirm a foresight'. The judge recognised that Falconer concerned assessment of market value 'rather than true value', but, citing what was said by the High Court in HTW Valuers concerning the series of declining market value valuations in that case, he observed that 'market value is a "starting point" to determine real value'.[694]
5. The judge then said that whatever be the 'precise position' with respect to market value, 'true or real value can be determined with reference to subsequent events insofar as they shed light on the true value of the asset at the relevant time'. The judge cited HTW Valuers for that proposition and then quoted a passage from Kizbeau to the same effect.[695]
6. The judge referred to the important distinction to be drawn between subsequent events revealing factors which are 'intrinsic' and those which are 'extrinsic'. In that context the judge again referred to Kizbeau.[696]
   • (2) Other authorities relied upon in the submissions and raised in the hearing
7. There are several additional authorities which were relied upon in the submissions or were the subject of discussion in oral argument. They are:
   • (1) Smith New Court Securities Ltd v Citibank NA ('Smith New Court'),[697] a decision of the House of Lords;
   • (2) Manwelland Pty Ltd v Dames & Moore Pty Ltd ('Manwelland'),[698] a decision of the Court of Appeal of the Supreme Court of Queensland;
   • (3) PPK Willoughby Pty Ltd v Baird ('PPK Willoughby'),[699] a decision of the Court of Appeal of the Supreme Court of New South Wales; and
   • (4) Ageas (UK) Ltd v Kwik-Fit (GB) Ltd ('Ageas'),[700] a decision of the Queen's Bench Division of the United Kingdom High Court.

1. Smith New Court concerned an acquisition of shares in reliance upon a fraudulent misrepresentation. Unbeknownst to the relevant parties at the time of the acquisition, the company in which the shares had been bought had itself been the subject of an unrelated fraud which, when it was revealed some time later, considerably reduced the market price of the shares. The plaintiff brought an action for damages in the tort of deceit.
2. The judge at first instance (Chadwick J) assessed damages on what, in Australia, would be referred to as the Potts v Miller approach, assessing the 'true' value on the basis of what the market value would have been had the market known of the fraud which had been perpetrated upon the company. The Court of Appeal took a different view, concluding that the only justification for departing from an assessment of loss based on the market price of the shares as at the date of acquisition was where the price had been 'falsified' by the defendant's misrepresentation, as opposed to an entirely separate fraud of which all parties were unaware.[701]
3. The House of Lords restored the trial judge's assessment of damages, although they considered it to be an underestimate. There was no cross-appeal.
4. Lord Browne-Wilkinson cited with approval the decision in Doyle v Olby. He said that the law had been correctly stated by the Court of Appeal in that decision.[702]
5. He observed that the strict and inflexible approach of the 19th century cases no longer applied. He then went on:

In many cases, even in deceit, it will be appropriate to value the asset acquired as at the transaction date if that truly reflects the value of what the plaintiff has obtained. Thus, if the asset acquired is a readily marketable asset and there is no special feature (such as a continuing misrepresentation or the purchaser being locked into a business that he has acquired) the transaction date rule may well produce a fair result.[703]

1. He observed that the 'transaction date rule' has one 'manifest advantage' in that it avoids the difficult problem of 'causation', that is, addressing the problem that other factors will have influenced the value or resale price of the asset if it is to be valued other than on the date of acquisition.[704]
2. Lord Browne-Wilkinson summarised what he considered to be the relevant principles. In that context he said that 'as a general rule' benefits received by a defrauded party will 'include the market value of the property acquired as at the date of acquisition' but such a general rule is not to be inflexibly applied where to do so would prevent the defrauded party obtaining full compensation.[705]
3. Lord Browne-Wilkinson held that in the circumstances of the case before the Court, if the defrauded party were required to give credit for the market value of the shares as at the date of acquisition he would not be receiving compensation for the actual loss suffered. He held that the plaintiff ought to have been entitled to the difference between the contract price and the amount which the defrauded party subsequently realised on resale.[706] That amount was a small amount in excess of the damages which the trial judge had awarded (based upon the difference between the price paid and the trial judge's assessment of the true value) but, because there was no cross-appeal, Lord Browne-Wilkinson indicated he would allow the appeal and restore the judge's order.[707]
4. Lord Steyn said that it was 'right that the normal method of calculating the loss caused by the deceit is the price paid less the real value of the subject matter of the sale'. However, he said that if that method was 'inapposite', the court was entitled to simply assess the loss flowing directly from the transaction without any reference to the date of the transaction or, indeed, any particular date.[708] Lord Steyn said:

There is in truth only one legal measure of assessing damages in an action for deceit: the plaintiff is entitled to recover as damages a sum representing the financial loss flowing directly from his alteration of position under the inducement of the fraudulent representations of the defendants.[709]

1. Lord Steyn observed that the value which had been obtained by the defrauded party on the date of the sale was 'doomed to collapse due to the fraud' which had been practiced on the company. He observed that in the circumstances the defrauded party was 'truly locked into the transaction'. He reached the same conclusion as Lord Browne-Wilkinson had as to the proper measure of damages in the case.[710]
2. Lord Keith, Lord Mustill and Lord Slynn agreed with Lord Browne-Wilkinson and Lord Steyn on the issue of damages.[711]

1. Manwelland concerned the acquisition of a block of land for the purpose of redevelopment. The plaintiff acquired the land after being given incorrect advice as to the cost of remediating contaminated soil. The plaintiff succeeded in an action against the party who had given advice on the cost of decontamination under s 52 of the TPA, as well as for negligence and breach of contract. An appeal to the Court of Appeal in Queensland concerned the question of damages.
2. The plaintiff had been able to develop a portion of the land which it had then on-sold. The cost of acquiring the land and redeveloping it, less the amount realised upon the on-sale, was approximately $10,000.
3. The plaintiff sought to recover damages assessed on the basis of the price of the land less the 'market value of the land at the date it was acquired'. The trial judge rejected that approach holding that the plaintiff was bound to bring into account the proceeds of sale, after it had been developed and on-sold, less the expenses of bringing it to a saleable condition.[712] The damages were accordingly approximately $10,000.
4. A potentially significant feature of the litigation is the fact that the valuation which the plaintiff relied upon was a market valuation. The valuer had made no allowance for the subsequent development and sale which had occurred.[713]
5. The Court of Appeal (McPherson JA, Thomas JA and Douglas J relevantly agreeing) upheld the trial judge's assessment of damages. The Court held that in that case it was appropriate to assess loss by setting the receipts or gains accrued from the acquisition against the costs.[714] The Court observed that another way of justifying the approach adopted by the trial judge would be to regard the subsequent development and resale as 'demonstrating its true value at the time'. The Court observed that an assessment of true value should have 'factored in' the subsequent events.[715]
6. The Court observed that the plaintiff in that case had not put forward a claim based on loss of opportunity, in the sense that some more profitable venture might have been undertaken if this land had not been acquired. The Court observed that it seemed that this was the plaintiff's 'real grievance'.[716]

1. PPK Willoughby concerned a situation somewhat similar to that in Manwelland, involving a tender for the development of land following misleading conduct by the law firm that had acted for the vendor on the transaction. The key difference from Manwelland was that in PPK Willoughby the subsequent redevelopment realised a considerable profit.
2. The case that PPK Willoughby Pty Ltd ('PPK') advanced at trial was a 'no transaction' case. It submitted that had it not been misled, the transaction would not have gone ahead. It said that the measure of its loss was the difference between the amount paid for the property, and its 'real value' at the date of purchase.[717] The trial judge dismissed its claim for damages on the basis that it could not establish, and had not established, that it had suffered any loss caused by the misleading conduct.
3. On appeal, PPK conceded that, in determining the true value of the land a decade before the trial, the Court could not ignore the fact that the land had been developed and sold at a profit. Prima facie, those facts informed the calculation of the true value of the land. One aspect of the land's value was its potential for profitable development, which, as it happened, was real and not merely theoretical. But, PPK submitted, the fact of later, profitable development did not inevitably preclude a case that the true value of the land when it was acquired was in fact less.
4. Leeming JA (with whom Basten JA and Simpson AJA agreed) observed as follows:

The need to reconcile a claim for millions of dollars of damages with PPK emerging richer from the development makes this a case where the nuances in the reasoning of Potts v Miller, and the principles governing when it is appropriate to assess damages by reference to the difference between price and 'real value', cannot be avoided.[718]

1. Leeming JA referred to Manwelland, observing that it would be 'unsafe' to treat that case as mandating an invariable rule.[719] He also referred to the fact that subsequent events can be relevant to establishing the real value at the time of acquisition under the Potts v Miller approach.[720] The plaintiff in PPK Willoughby sought to avoid the effect of taking the subsequent events into account in assessing real value by essentially asserting that the subsequent events in its case were 'extrinsic'.[721]
2. Leeming JA further observed that the claim before the Court was 'very unusual'. Amongst other things, PPK was contractually committed to developing the land, and its bid had not been the highest bid to acquire the land, there being no suggestion that other higher bidders had themselves been misled. It was, he said, 'the opposite of the sort of case analysed at length in Potts v Miller where there is a market'.[722] His Honour said that the other bids were 'powerful evidence of the true value of the land'.[723] Those bids did not suggest that PPK had paid millions of dollars more for the land than a willing but not anxious purchaser would have paid. There was no suggestion that the other tenderers were misled by the misrepresentation. Nor was there any suggestion that the market price was 'delusive or fictitious', or the result of fraud, manipulation or other improper practice.
3. Leeming JA concluded that 'subsequent events proved' that no loss or damage had been sustained.[724] That was because PPK had purchased land subject to obligations to develop and sell it which, as it turned out, was a profitable endeavour notwithstanding that unanticipated time and expense had been incurred. Further, Leeming JA observed that PPK had not advanced a case that there was 'some other lucrative investment possibility to deploy its human and financial resources'.[725]

1. The judgment of Popplewell J in the Queen's Bench Division in Ageas[726] was raised in the course of the hearing. One of the issues raised in that case concerned the measure of damage in relation to a contractual claim for breach of warranty on the sale of an insurance business by the acquisition of shares, the relevant claim being against an insurer which had agreed to indemnify the acquiring party. Popplewell J addressed the relevance of hindsight in assessing loss occasioned by the acquisition of an asset.
2. The warranty was breached in Ageas because a particular item in the accounts was misstated so as to overstate the revenue (Time on Cover Bad Debt - 'TOCBD'). The claimant argued that the loss was the amount paid less the value at the date of acquisition calculated on the basis of what the correct figure should have been for TOCBD at that date. The insurer argued the calculation should be made relying upon what the actual figures for TOCBD were from the date of purchase until the trial date.
3. Popplewell J identified the basic principle as being that the measure of loss was the difference between the value of the shares as warranted and the true value. He accepted that where the assessment of loss at a particular date turns on a contingency it may be necessary to take into account what is known to have happened by the time of the trial. He then said:

I would, however, sound a note of caution. There are, in my view, two qualifications to the adoption of such an approach. The first is that it can only be justified where it is necessary to give effect to the overriding compensatory principle. The prima facie rule, from which departure must be justified, is that damages are to be assessed at the date of breach and that only events which have occurred at that date can be taken into account.

Secondly, it is important to keep firmly in mind any contractual allocation of risk made by the parties. Party autonomy dictates that an award of damages should not confound the allocation of risk inherent in the parties' bargain. It is not therefore sufficient merely that there is a future contingency which plays a part in the assessment. It is necessary to examine whether the eventuation of that contingency represents a risk which has been allocated by the parties as one which should fall on one or other of them. If the benefit or detriment of the contingency eventuating is a risk which has been allocated to the buyer, it is not appropriate to deprive him of any benefit which in fact ensues: it is inherent in the bargain that the buyer should receive such benefit.[727]

1. Popplewell J addressed the evidence as to the actual figures for TOCBD throughout the period after the acquisition observing that a number of factors had been operative on the actual figures during that period. He concluded that, notwithstanding adjustments made, the insurer's expert had 'compared apples with pears' when purporting to compare the actual figures with those as at the date of the acquisition. Popplewell J accordingly concluded that the insurer 'has simply not shown that the conventional prospective approach of assessment at the breach date offends the compensatory principle or results in a windfall'.[728]
2. Popplewell J also rejected the insurer's argument because the actual performance of the business after the acquisition was 'part and parcel of the way [the claimant] chose to run the business', the relevant effects of which were 'all matters which the parties agreed are for [the claimant's] risk'. TOCBD was 'just one element inextricably bound up with the way the business was run and the external influences on its success'.[729]
3. For those reasons, Popplewell J rejected the insurer's reliance upon subsequent events.
4. It is important to sound a note of caution about Popplewell J's remarks and their application to a claim for damages under s 236 of the Australian Consumer Law for misleading or deceptive conduct. First, his remarks concerning the use of hindsight appear to us to be more restrictive than the approach adopted by the High Court. And, secondly, his remarks about the contractual allocation of risk, whilst apt in a claim for breach of contract, may not be apt in a claim for damages under s 236 of the Australian Consumer Law.
5. Popplewell J's approach was considered and relevantly adopted by the Court of Appeal of England and Wales in OMV Petrom SA v Glencore International AG ('OMV Petrom'),[730] which involved a claim in deceit. The facts in OMV Petrom were strikingly similar to the facts in the present case. Glencore International AG had supplied crude oil to the claimant, falsely and deceitfully asserting it to be of a particular type when it was in fact of a different type of lesser quality. It had created or caused to be created a suite of false documents which were designed to and did deceive the buyer. If the true position had been known the crude oil would have been rejected. OMV Petrom SA sought damages, being the difference between the price which it paid and the market value of the crude oil as at the bill of lading date.[731] Glencore International AG contended that assessment on this basis was erroneous because the market value was discounted due to risks which the oil supplied represented in the refining process. It argued that, as matters transpired, nothing untoward had happened in the refining process and accordingly any discount in the value of the oil was inappropriate. It argued that to make a deduction for risks which did not eventuate would overcompensate the OMV Petrom SA.[732] The Court of Appeal (Christopher Clarke LJ, with whom Kitchin LJ and Black LJ agreed) rejected Glencore International AG's contention for a number of reasons, including that approaching the matter on that basis would not amount to an assessment of value at the date of acquisition at all, and that adopting that approach would mean that Glencore International AG would recover a price which it could never have recovered if it had been honest.[733]
   • (3) The position of the trial judge assessing expert evidence and this Court's position
6. Expert valuation evidence was central to the assessment of damages in this case.
7. In Masters Home Improvement Pty Ltd v North East Solution Pty Ltd ('Masters Home Improvement'),[734] this Court (Santamaria, Ferguson and Kaye JJA) said the following:

Where expert evidence is concerned, the Court's role is to evaluate it critically. Where the evidence is cogent, it should not be ignored. In this regard, it is not part of the Court's role to bring a third set of opinions into the arena, nor to piece together its own valuation. However, where there is conflicting expert evidence, it may be necessary to accept part of each expert's evidence and reject other parts. In some circumstances, it may be necessary for the Court to make adjustments to the conclusion reached by an expert when that expert's opinion is shown to be flawed in one or more respects or based on an incorrect assumption. Moreover if, after careful examination, the Court forms the view that a piece of expert evidence is not cogent, then it may be disregarded.

Bearing these matters in mind, it is clear that judges should not take on the role of an expert. If an evaluation of the whole of the evidence demonstrates that the experts' opinions are not well founded, then the judge is left in the position of having to do the best that he or she can if satisfied that the plaintiff has sustained loss.[735]

1. Valuation evidence itself, and its assessment, by its very nature involves elements of fact, degree, opinion and judgment.
2. As to the position of an appellate court where an appeal concerns a trial judge's analysis of expert valuation evidence, relevant observations were made by the Full Court of the Federal Court in Branir Pty Ltd v Owston Nominees [No 2] Pty Ltd ('Branir').[736] In that case Allsop J, with whom Drummond and Mansfield JJ agreed, said this:

What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing.

This is not to elevate ordinary factual findings to the protected position of those based on credit, but it is to make clear, first, the advantages of the trial judge and, secondly, the need for demonstration of error. The inability to identify error may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, because of the kind of considerations referred to ... above. Or, it may be that the nature of the issue is one such that (though not a discretion) there cannot be said to be truly one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient. In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning) the preference of the appeal court for one view would carry with it the conclusion of error. However other findings and conclusions may be far more easily open to legitimate differences of opinion eg valuation questions.[737]

1. It is also necessary to be mindful of the almost inevitable imprecision of any assessment of damages in cases of this kind. Thus, for example, in HTW Valuers the High Court endorsed Barwick CJ's statement (in dissent) in Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd ('Ted Brown') that, provided there was some evidence of damage, in the field of fraud, 'as in other fields, a tribunal of fact must do the best it can in assessing damages'.[738] Similarly, in Berry, Bell, Keane and Nettle JJ observed, by reference to Sellars v Adelaide Petroleum NL, that

where a claimant established on the balance of probabilities that misleading or deceptive conduct contrary to s 52 of the TPA caused the claimant the loss of a commercial opportunity of some value (not being a negligible value), the value of that lost opportunity was to be ascertained by reference to hypotheses and possibilities which, though they were speculative and therefore not capable of proof on the balance of probabilities, could be evaluated as a matter of informed estimation.[739]

1. This Court reviewed the authorities on assessing damages under s 236 of the Australian Consumer Law in Keys Consulting Pty Ltd v CAT Enterprises Pty Ltd ('Keys Consulting').[740] The Court there recognised the inherent difficulties that often arise in assessing damages. The Court then said:

However, there is a distinction to be drawn between a situation that does not permit damages to be assessed with certainty, and one in which the plaintiff has simply failed to produce evidence that was otherwise reasonably available. The plaintiff is entitled to have the court do the best it can in the former case, but not in the latter. Where a party is able to produce evidence about loss and damage, they must do so with as much certainty and particularity as is reasonable in the circumstances. This principle is long established.[741]

• (4) Further relevant factual findings in the primary judgment

1. As indicated, before setting out further how the judge dealt with the issue of damages, it is necessary to return to the primary judgment to address additional factual matters not already referred to, or not referred to in detail, which are relevant to the issues dealt with by the judge and raised on the grounds of appeal concerning damages.
2. Brief reference has already been made to the fact that the limited disclosure of the Operational Practices, and questions raised by Cargill as a consequence in October 2013, prompted the preparation and consideration by Viterra employees, including Hughes and Stewart, of a detailed review of Joe White's ability to fully meet all customer requirements. The outcome of the review was recorded in a spreadsheet referred to as the 'Customer Review Spreadsheet', and Stewart prepared a memorandum addressing the issues raised which was entitled 'Cargill Customer Review: Key Recommendations'. In the context of the grounds of appeal on damages it is necessary to address the judge's treatment of these documents and the events surrounding them in more detail.
3. The primary judge found that Joe White's brewery customers treated their specifications and the requirement to meet them seriously.[742]
4. In the Key Recommendations Memorandum, Stewart estimated that it would take six to 12 months to bring about 'barley compliance', and that it would take six months in order to meet 'additive free requirements', which would add an extra day of germination for a proportion of batches resulting in a loss of around 14,000 tonnes of production per annum.[743] Stewart acknowledged that there was inadequate storage for both barley and malt with the consequence that there was no ability to reliably meet customer specifications, with the exception of customers being supplied by Tamworth.[744]
5. The Key Recommendations Memorandum was considered by Youil.[745] He suggested that a column be added to the Customer Review Spreadsheet quantifying the potential tonnage impact per customer. Youil made this suggestion because he thought Cargill would want to know what their exposure was. Stewart also spoke to Hughes and Wicks about the Key Recommendations Memorandum and both said they agreed with its contents.[746]
6. Clearly, Youil envisaged, at least at this point, that Cargill might be informed of the outcome of the review. As indicated earlier, Cargill was never informed of the outcome, and Hughes eventually directed that all internal correspondence in relation to the documents cease and that their contents not be discussed with Cargill employees or representatives.[747]
7. The judge reviewed the Customer Review Spreadsheet observing that it revealed that in the 2012-13 year there were 'issues' with using the correct barley for more than half of Joe White's large customers.[748] It also revealed that with the exception of Asahi and SAB Miller, none of the customers who required that the malt be additive free were in fact being supplied with malt which was additive free.[749]
8. The judge said:

On the issue of whether or not Joe White was able to meet customers' specifications, the information recorded could only be described as alarming. Column P was entitled 'Able to achieve specification without applying [standard deviation] buffer'. The Customer Review Spreadsheet recorded that Joe White was unable to meet any of its customers' specifications in their entirety, with the exception of 2 customers where it was recorded that Joe White was able to achieve their specifications 'some of the time'.[750]

1. The judge concluded his analysis of these documents as follows:

Neither the Customer Review Spreadsheet, nor the level of detail it contained, were conveyed to Cargill before Completion. Self-evidently, the details were a far cry from the various forms of exhortations contained in the Information Memorandum and Management Presentation Memorandum to the effect that Joe White met its customers' 'exact specifications'.[751]

1. As earlier referred to, at this time, Wicks, Joe White's commercial manager, considered that an attempt to use barley varieties in accordance with customer contracts from Completion would be 'commercial suicide' and that the brand would be 'decimated'.[752]
2. The primary judge dealt at considerable length with events after the acquisition until the eventual sale of the Joe White business as part of Cargill's global malt business in 2018/19, some six years after its acquisition.[753] It is necessary to note some pertinent aspects of that detailed account of post-acquisition events.
3. From the close of business on 31 October 2013 the practice of pencilling immediately stopped and there were no more shipments for which a previously generated Certificate of Analysis was sent to customers. Cargill was immediately required to seek derogations from a high proportion of Joe White's customers.[754] Attempts were made to obtain customers' agreement to different barley varieties, and to source correct varieties. Sapporo rejected a request to use gibberellic acid. Storage facilities became strained and there were bottlenecks in production.[755]
4. The officer charged with integrating Joe White's business within Cargill was Marc Viers.[756] He was the 'integration manager' at Joe White, as well as holding a variety of other positions within Cargill.
5. Whilst problems were encountered immediately, initially progress in addressing them was seen to be promising. The judge noted that in November 2013 Viers expressed the view internally that customer flexibility had been 'surprisingly good'.[757] Notwithstanding, the judge found that there was 'no doubt' that within three weeks of Completion there were 'very significant problems being experienced by Joe White in seeking to meet customer requirements'.[758]
6. By December 2013 customer tolerance of derogation requests was waning. Referring to Stewart's evidence as to the situation at this time the judge said:

Stewart agreed with the suggestion that customers became intolerant of derogation requests. Stewart said brewers were frustrated by the imposition of derogations, especially when they were sought repeatedly. Stewart's discussions with brewers disclosed that brewers did not readily understand what had brought about the change in Joe White's malt. He said considerable difficulty arose in maintaining smooth relationships with Joe White's customers. In some instances, in order to get a request for a derogation accepted, some compensation from Joe White was required. Others accepted 'under protest' (because rejection would have adversely affected their production) or as a 'one-off'.[759]

1. McIntyre observed in an email in December 2013 that Joe White was asking for a derogation 'on almost every shipment being packed'.[760]
2. Sabine Sagaert was general manager Europe, malt, Cargill, Inc, and was appointed commercial manager worldwide in 2013.[761] Viers reported on the position in late 2013 to Sagaert.
3. Sagaert's evidence was that Viers had said that he was 'stupefied' by the Operational Practices that had been discovered.[762] Sagaert gave evidence that the Operational Practices caused difficulties in two areas: namely, customer relationships and the realisation of synergies Cargill had expected to receive.[763] The judge recorded Sagaert's evidence on this issue in cross-examination as follows:

Under cross-examination, Sagaert stated that it was very difficult to realise synergies in the first year if you were solving problems all the time. She also acknowledged that the change in the Certificate of Analysis procedures resulted in reduced capacity at the Joe White plants. She rejected the proposition that the report [a reference to a report in December 2013] was identifying a failure in the original valuation model to ascribe probabilities or risks to the various synergies. A more detailed report on this issue was subsequently prepared in February 2014. With 2 exceptions (which were set at 70 percent), the probabilities of synergies being realised for the 2014 to 2015, 2015 to 2016 and 2016 to 2017 financial years were rated at 50 percent or less (with some of them rated at zero).[764]

1. It is necessary at this point to say something more about the role of synergies.
2. The judge described synergies as factors in merging businesses where the value of the merged whole exceeds the sum of the parts.[765]
3. Reference has been made in the context of ground of appeal 8 to Cargill's valuation model. This model, referred to as the 'Cargill deal model', valued the business as a 'best case', 'base case' and 'downside case'. It calculated the value of synergies which might be obtained. The 'base case' valued the business at $427 million 'with Synergies' and $321 million 'Standalone', a difference of $106 million.
4. The judge referred to a figure for projected synergies of $107 million.[766] The difference may be a 'rounding' issue, but it is, in any event, inconsequential. The parties also adopted the $107 million figure.
5. The judge said that Cargill's project charter, a document produced shortly prior to Completion based upon earlier documents including the Cargill deal model,[767] projected total synergies at US7.1 million in the first year increasing to US15.9 million in the third year and beyond.[768] These figures closely reflect the yearly synergies forecast in the Cargill deal model.
6. The December 2013 report referred to in the judge's recording of Sagaert's cross-examination detailed projected synergies under the categories: 'Global Accounts', 'Japanese Accounts' and 'Other Accounts', and specified a probability of 'capture' by reference to the customers in each category. The probabilities ranged from 20-70 per cent. The judge said that a 'more detailed report on this issue' prepared in February 2014, with two exceptions, rated the respective probabilities at 50 per cent or less, with some rated at zero. The two exceptions were rated at 70 per cent.[769]
7. The judge found that a review of 'many emails' relied upon by Cargill revealed that by early 2014:

[M]any of Joe White's customers were dissatisfied, and substantially so, with the inability of Joe White to supply malt within specification and on time. The correspondence also illustrated that Joe White suffered a significant reduction in the amount of malt supplied to some customers.[770]

1. In February 2014 a 'high-level' assessment of the Joe White's storage capacity requirements 'as a result of the introduction of Cargill's [Certificate of Analysis] policy' was prepared and circulated by Youil. The total estimate of the capital expenditure required was $30 million.[771] Youil's report stated as a fact that the implementation of Cargill's procedures had meant that Joe White was unable to produce and deliver malt that consistently complied with customer specifications, and that Joe White was losing production due to 'full product storage' and 'longer processing times'.[772]
2. Throughout the judge's description of the post-acquisition events he referred on a number of occasions to Viers' surprise at the nature of the Operational Practices and their prevalence. In an email in late February 2014, quoted by the judge, Viers referred to a 'systematic approach much more pervasive than we could have imagined (to the extent the assets and business system were built on it)'.[773]
3. In March 2014 Youil prepared a spreadsheet addressing production losses as a consequence of '5 day Malt Production'. The total lost production capacity was recorded as 16,600 tonnes.[774]
4. The judge found that throughout early 2014 problems with customer satisfaction continued.[775] Production was significantly below expectations, non-conforming barley was a problem, and Joe White had 'tried the patience' of its customers. Viers was nevertheless somewhat optimistic.[776]
5. A financial analysis undertaken in mid-May 2014 indicated that Joe White had suffered an operating loss of $7.407 million to the end of April 2014, in contrast to a budgeted gain of $998,004 for earnings after tax.[777]
6. At this point, it is useful to interpolate reference to documents concerning synergies in March 2014 and May 2014 referred to by the Viterra Parties in their submissions. An 'integration update' in March 2014 projected synergies broadly in accordance with the Cargill deal model. An 'integration' document of May 2014 referred to 'JWM and GOSC aligned to capture greater synergies', without any quantification. A 'monthly update' document in May 2014 contained the statement: 'Total FY 13-14 synergies were $2 myn, compared with a budget of $4.1 myn. While $4 myn of malt synergies were included in the FY 14-15 budget, recent projections indicate that value capture could be higher'.
7. In mid-May 2014 a spreadsheet was circulated internally on the question of synergies. The judge said this spreadsheet was in the same format as the spreadsheet circulated in February 2014 to which the judge had referred in the passage quoted earlier setting out Sagaert's cross-examination on synergies.[778] This spreadsheet forecast that 'almost none' of the synergies with respect to global, Japanese, or other accounts would be achieved in 2014.[779] Sagaert gave evidence that, at some point in 2014, discussions regarding synergies previously identified ceased.[780]
8. In May 2014 Viers and Chik Liang Tan[781] prepared a document entitled'[Joe White] Acquisition Integration Review'. The judge quoted extensively from this document.[782]
9. The document records the fact that 'business operating performance and synergies capture' had 'fallen short', but also said that the leadership team believed the setback was 'only temporary'.[783]
10. Amongst the passages quoted by the judge was the following:

Joe White recorded an $8.6M loss in earnings before tax from November 2013 to May 2014 compared to a $3.7M profit in the budget.

The root cause of the underperformance of the base business in the past 7 months can be attributed to the combined effects of the introduction of [the Cargill Blending and Certificate of Analysis Procedure], the misalignment of required barley varieties, the curtailment of unapproved processing additives and the poor malting performance of the 2012 barley crop ... .[784]

1. The judge summarised the document's treatment of 'Synergies and Integration Budgets'.[785] The document records that synergies of $1.8 million had been realised against a 'deal model target' of $4.1 million. The document said the shortfall was 'largely due to timing factors', and reference was made to the fact most malt customer contracts were 'long term'. Sagaert's evidence was that she disagreed with that statement although she did not challenge it at the time.[786]
2. Problems persisted throughout 2014. The May 2014 monthly update revealed an after tax loss of $7.372 million against a budgeted $1.164 million profit, and synergies of $225,000 against a budgeted figure of $2.228 million.[787] The judge observed that the position in relation to synergies was actually worse than that recorded as the unadjusted earnings budget for synergies was $3.183 million, revealing that the synergies achieved were less than 10 per cent of what had been forecast.[788]
3. In September 2014 Viers returned to the United States. Jodie Scaife was to take up the position of Regional General Manager, Asia Pacific, Cargill Malt, effectively taking over from Viers. Both Hughes and Stewart ceased employment with Joe White.[789]
4. Upon his return to the United States, Viers gave Scaife a briefing. Viers told Scaife that the expected synergies were not being achieved regarding barley purchases because Joe White's stock and book of barley purchase commitments did not match the varieties specified by Joe White's customers.[790]
5. Although Scaife was still in the United States, the August 2014 monthly update was sent to her. The report indicated a loss for the month of US2.5 million against a budgeted profit of US3.6 million. The judge said:

With respect to margin, it was adversely affected by the continued impact of revenue synergies not being achieved, changes to the customer mix, additional barley varieties purchased to conform with customers' specified barley and 'nil Sydney packing to date'.[791]

1. When Scaife commenced her new role in November 2014, Youil reported to her that Joe White could not consistently make malt within specification and that whilst he was feeling optimistic the volumes of malt produced had improved Joe White was still having a lot of problems.[792]
2. The November 2014 monthly update reported a loss of US1.8 million for the month and a year to date loss of US4.1 million to the end of November compared with a budget of US6.4 million in earnings.[793] The judge said:

Scaife presented this update during a conference call in which she reported that ceasing the previous Operational Practices of Joe White had had a negative impact of US$4.2 million. Scaife said she derived this figure from reviewing each component of loss in the profit and loss accounts. Further, for the 2015 financial year budget of US$11.4 million, she reported a forecast impact of US$7.1 million with respect to ceasing these Operational Practices.[794]

1. The judge said that as 2014 'flowed into 2015' the Joe White business continued to experience significant difficulties. One of them occurred in March 2015 with the collapse of a silo at the Cavan plant which resulted in the smaller of two production lines becoming inoperable.[795]
2. In March 2015 Scaife prepared two slides for Eden. The judge described these slides as follows:

In around March 2015, Scaife prepared 2 slides for Eden. The first of these noted that over 40 percent of Joe White's malt volume was being shipped with derogation, due to barley quality or processing failures, or both. The document stated that some customers were opting to cancel contracts as a result of delayed orders. In addition, Joe White had sold less than 50 percent of its contracted malt, leaving it vulnerable to losses in an environment where margins were being pressured by the state of the market in the European Union.[796]

1. The judge described in detail Joe White's extensive difficult dealings throughout 2015 with one of its major customers, Heineken.[797] The judge's description reveals Heineken was seriously dissatisfied with Joe White in relation to derogations, barley varieties, quality and specifications.
2. Throughout 2015 the number of derogations sought by Joe White steadily declined. At that time Scaife believed that 'perseverance was paying off' and she expressed the view in an email to staff that she was 'delighted' with the trends.[798]
3. Each year Cargill officers prepared what were referred as 'commitment reports' analysing the acquisition. The judge said that the November 2015 commitment report set out the difficulties experienced by the business in the second year following the acquisition. All relevant results were below target. The judge quoted the following passage from the report:

Sales volumes were under expectations by (Y1) 55.85kt/US$9.3 [million] and (Y2) 101.4kt/US$13.2 [million]. Year 1 variances were related to Cargill's conformance with customer contractual obligations from Day 1 vs former [Joe White] practices. Prior [Joe White] practices were fraudulent in that they allowed for the changing of [Certificate of Analysis] documentation and delivery of malt, which did not meet customer specifications. These practices were not uncovered in the due diligence process given limited information that was made available, despite multiple questions. Production volumes, and subsequently sales volumes, fell due to our inability to source customer approved barley varieties, produce malt in specification without the use of additives (which are not approved by many customers) and an inability to blend out of specification malt with other batches. These same challenges continued into Year 2 and volume loss was further compounded by surplus global malt supply and competitive forces favouring exports from other origins (primarily Europe).

Spend to date on additional capital related to storage is US$7.1 [million].[799]

1. The report stated that in the two years since acquisition the Joe White business had lost $9 million against projected earnings of $19 million.[800]
2. A further commitment report was prepared in November 2016. The judge summarised this report as follows:

Broadly speaking, the November 2016 Joe White commitment report reiterated the issues noted in the 2014 and 2015 reports, recording the unsatisfactory second and third year performances were by reason of the same challenges faced in the first year after the Acquisition. The cumulative Unadjusted Earnings for the 3 years was $15.117 million, in comparison to forecast Unadjusted Earnings of a total of $98.036 million. On the question of realising synergies, it was stated that there were many hurdles to overcome before a strong trusting partnership could be established. It was noted that Joe White integration management actively involved Cargill's grain and oilseeds supply chain from the start to define profit sharing and cost sharing frameworks to realise synergies. However, the synergies actually achieved were less than what had been forecast. It was also noted that the issues experienced in relation to surplus global malt supply and international competition continued 'whilst also battling the headwinds of a poor [Australian] crop'. As in 2015, actual cumulative volume results, actual cumulative margin results, and projected volume results were all below target. Again it was recorded that production volumes fell due to the inability to source customer-approved barley varieties and to produce malt within specification without the use of additives. Reference was also repeated to the inability to blend out-of-specification malt with other batches. The report stated that future projected volumes for years 4 to 10 post-Acquisition were expected to be cumulatively 528,000 tonnes below previous expectations. The report said this was explained, in part, by a slower than expected market recovery following Joe White's quality issues and the increasing influence of Chinese manufacturers in the export market.[801]

1. The judge observed that later in the report Joe White's performance was explained by the operational changes that had been necessary because of cessation of the Operational Practices.[802]
2. The judge recorded Sagaert's evidence as follows:

Sagaert gave evidence that the conclusion she reached at the time this report was prepared was that the position was worse than the view that had been formed at the time of the 2015 commitment review; it was observed that there would be a longer term negative impact of the Certificate of Analysis situation. She said the conclusion reached was that it had given rise to greater damage than had been anticipated. Her evidence was that Joe White was not capable of producing malt within specification, resulting in Joe White being unable to deliver to customers' specifications, which gave rise to lost volume. Sagaert said this resulted in Joe White customers looking for alternative suppliers to avoid having to stop their beer production. She said Joe White customers found malt from competitors, mainly from Europe and sometimes China. Sagaert referred to a price dislocation between Australia and Europe at the time, and said it was 'a perfect moment actually to lose a customer' from the customer's perspective.[803]

1. A financial summary prepared in 2018 noted that volumes of malt produced from November 2013 to October 2017 were 'significantly below' those achieved before acquisition. Forty-two per cent of malt sold in the first financial year had been supplied pursuant to derogation, 28 per cent in the second financial year, and just under 19 per cent in the third and fourth financial years.[804]
2. The judge concluded his analysis of the events prior to Cargill's decision to sell its global malt business as follows:

In summary, for each financial year ending May 2014, 2015, 2016 and 2017, Joe White suffered losses. Further, before it was sold by Cargill, Joe White's sales volumes had failed to return to the levels that were being achieved before the Acquisition. Joe White's sales volumes were not forecast to return to such levels until 2022.[805]

1. In late 2018, the Joe White business was sold by Cargill as part of Cargill, Inc's global malt business.[806] The final sale agreement was executed on 23 April 2019. The total price was US847 million, of which US188.3 million was 'allocated' to the Australian and Pacific region, subject to a more detailed allocation to be made subsequently. Eventually the allocation was US188,382,287.[807]
2. For present purposes the following conclusions are to be drawn from the further relevant factual findings summarised concerning the financial performance of the business, none of which are the subject of any ground of appeal:
   • (1) Prior to Completion Viterra personnel analysed Joe White's inability to meet customer specifications in detail, revealing the likelihood, if not the inevitability, of significant problems once the Operational Practices ceased.
   • (2) Significant problems were experienced once the Operational Practices ceased.
   • (3) The Joe White business performed poorly after the acquisition. On every measure, performance was below that which had been expected. For each financial year ending May 2014, 2015, 2016 and 2017 Joe White suffered losses.
3. A significant factor in the poor performance was the cessation of the Operational Practices. But there were other factors as well including poor barley crops, the collapse of the silo at Cavan, market pressures emanating from Europe and China, and surplus global malt supply.
4. The following relevant conclusions are to be drawn concerning synergies:
   • (1) The projected synergies were not achieved.
   • (2) Some synergies were achieved.
   • (3) Cessation of the Operational Practices was a factor in the failure to achieve the projected synergies but there were other factors as well.
   • (5) The primary judgment on loss and damage
5. Having dealt with the general principles in relation to the 'approaches' to damages, as set out above, the judge turned to the issue of the approach to be adopted and the relevance of Cargill's sale of the Joe White business as part of Cargill's global malt business.

The judge's decision to adopt the Potts v Miller approach

1. The judge observed that if the Potts v Miller approach is adopted loss is to be ascertained as at the date of the acquisition, but, like other later events, a later sale may be relevant to the extent that it 'illuminates the true value at the time of the original acquisition'.[808]
2. The judge then addressed the decision of the Court of Appeal in Queensland in Manwelland. In the circumstances of that case the Court of Appeal had assessed damages by deducting the resale price from the price at acquisition together with costs of the development, which led to a conclusion that only a very modest loss had been sustained. The judge observed that Manwelland was a case where the Potts v Miller approach was not applied.[809]
3. The judge identified from the authorities circumstances in which an approach other than the Potts v Miller approach may be appropriate. The circumstances he so identified were: where the loss is a contingent loss; where the misrepresentation continues to operate after the acquisition inducing the plaintiff to retain the asset; where the misrepresentation continues to operate and subsequent losses are directly attributable to the impugned conduct and not to extraneous factors; and where by virtue of the circumstances the plaintiff is 'locked into' the property.[810]
4. The judge described the 'left in hands' approach. In that context he cited Smith New Court.[811]
5. Having described the 'left in hands' approach the judge observed that a 'primary reason' for adopting the Potts v Miller approach is the desirability of separating out losses resulting from extraneous factors. He observed that it might be 'less appropriate' to apply this approach if there are no losses resulting from extraneous factors to separate out.[812] In that context the judge cited HTW Valuers, which was, as has been seen, a circumstance where it was found that there were no extraneous factors to separate out.
6. The judge then set out the parties' respective positions on the approach to be adopted. Cargill submitted that the approach in Potts v Miller should be adopted.[813] The Viterra Parties submitted that the court had three options. They were said to be:
   • (1) the Potts v Miller approach with synergies included in assessing true value;
   • (2) the Potts v Miller approach without synergies; and
   • (3) the 'left in hands' approach.

The Viterra Parties submitted the 'left in hands' approach should be preferred.[814]

1. The judge recorded that the Viterra Parties 'correctly observed' that Cargill Australia had chosen to adopt only one measure of damages and, if the approach Cargill Australia had adopted was not appropriate, then it necessarily followed that the claim for compensation must fail.[815]
2. Turning to the question of the application of these principles to the case before him, the judge concluded that the Potts v Miller approach was the appropriate approach to provide 'fair compensation for the loss suffered'.[816]
3. The judge gave three reasons for this conclusion.
4. First, Cargill Australia had not claimed for any losses incurred subsequent to the acquisition.[817]
5. Secondly, a reason for adopting the Potts v Miller approach is the desirability of separating out losses resulting from extraneous factors. The judge said:

In circumstances where Cargill Australia has operated the Joe White Business for a number [of] years following the Acquisition, and during this period the value of the asset has been influenced by both intrinsic and extrinsic factors, which in themselves may have varied in significance over the extended period of time, a later date is inappropriate for the assessment of loss.[818]

1. Thirdly, the judge said that the features of the relevant transaction 'do not align' with the instances where an alternative approach had been found to be appropriate as he had previously articulated them. This was not a case where Cargill had acquired Joe White with the intention of improving and selling it. The judge cited Manwelland, obviously by way of contrast. Further, the judge observed, Cargill's position was that if they had known of the Undisclosed Matters they would not have proceeded with the transaction. There was no sense in which the loss was contingent. The misrepresentation did not continue to operate beyond the date of acquisition, and Cargill Australia had not been 'locked into' retaining Joe White.[819]
2. As to the subsequent sale by Cargill the judge said:

[T]he fact that Cargill has resold Joe White as part of a larger sale of Cargill Malt did not alter this position, regardless of whether or not it has made a profit, or a loss less than that suffered at the date of Acquisition. In circumstances where such a significant period of time elapsed between the Acquisition and the subsequent sale, and there were significant changes in management and other factors which influenced the performance and value of Joe White, there could be little if any connection between the amount received on the resale and the loss suffered back in 2013 upon Completion.[820]

1. The judge emphasised that this did not mean that the sale was to be ignored. The judge had already observed that even if the Potts v Miller approach is adopted a subsequent sale could potentially be relevant to the true value at the time of acquisition. The judge then observed: 'But in my view, in the circumstances of this case, the resale is not material to an assessment of the amount of the loss suffered'.[821]

The judge's analysis of the true value of Joe White

1. Having determined to adopt the Potts v Miller approach, the judge turned to the evidence relevant to the ascertainment of the true value of Joe White as at the date of acquisition. The relevant evidence was very largely constituted by two competing experts, Klein on behalf of Cargill and Michael Potter on behalf of the Viterra Parties.
2. Expert evidence had also been called on behalf of Cargill from Greg Meredith. As matters transpired, Cargill did not rely upon Meredith's evidence. Meredith's expert opinion produced the lowest true value for the Joe White business as at the date of acquisition, and accordingly resulted in the largest assessment of loss. Meredith's final position was that the 'true value' was $102.6 million to $120.1 million. Meredith had, in substance, valued the Joe White business on the basis that what had happened after acquisition was attributable to the cessation of the Operational Practices unless it was demonstrated otherwise. Further, it was said that Meredith had failed to disclose his reasoning in determining whether a factor was extrinsic or otherwise. Thus, it was said that Meredith relied upon 'hindsight' in a manner that was impermissible and went beyond what the authorities contemplate.[822]
3. Klein prepared two reports, ultimately concluding that the true value of Joe White as at the acquisition was $158.2 million, or, on a less preferred assumption, between $178.2 million and $250.6 million.[823] Potter prepared three reports. Only the first was a report valuing Joe White as at the date of acquisition. In this report Potter concluded that the true value of Joe White was between $384.8 million and $447.2 million. The second report was what Potter described as an 'illustrative valuation' using forecasts prepared by Cargill 12 months after the acquisition. Potter prepared a third report which, amongst other things, altered the assumption as to capital expenditure in determining 'true value' as at the acquisition date. In the third report the upper end of his valuation as at 31 October 2013 remained the same but the lower end was increased from $384.8 million to $398.9 million.[824]
4. The experts conferred and prepared two joint reports.[825]
5. The judge gave an overview of the respective approaches of Klein and Potter, and of the submissions that had been made in relation to their approaches.[826]
6. Klein used the discounted cash flow method. He began using the cash flow forecasts made by Goldman Sachs in its valuation prior to the acquisition. He then estimated future cash flows upon the assumption that the Operational Practices were disclosed and applied a discount rate. In his preferred scenario Klein assumed that 'only risk-tolerant financial bidders' would choose to participate in a market for the acquisition of Joe White once the Operational Practices had been disclosed. Klein's position was that he used information arising after the acquisition as a means of cross-checking on the reasonableness of the assumptions he made as at the acquisition date.
7. Potter also used the discounted cash flow method but he approached the problem in a different way. He began using the cash flow forecasts and synergy projections in the Cargill deal model. He valued Joe White absent disclosure of the Operational Practices and then estimated the cost of rectifying them and reduced his cash flow projections accordingly. The judge observed that Potter's approach meant he began with a notional value above what Cargill had paid and well above all competing bidders.[827]
8. The judge addressed the question of whether the assumptions provided to, made by, or otherwise relied upon by, the experts had been proven.[828]
9. For present purposes, it is sufficient to note that the judge concluded that the assumptions relied upon by Klein had been established. He observed that little detailed attention had been given to the assumptions relied upon by Potter.
10. A significant issue of difference between Klein and Potter was the question of whether the hypothetical market participants at the date of acquisition should include only financial bidders, which was the view preferred by Klein, or should also include bidders already in the industry, referred to as 'strategic bidders', as was the position of Potter.
11. On this issue the judge rejected Klein's preferred view and determined that the hypothetical market participants would have included some strategic bidders.[829] This conclusion was significant. It moved Klein's opinion of value from $158.2 million to a range of between $178.2 and $250.6 million,[830] depending upon the conclusion reached as to the ratio between debt and equity finance. The ratio between debt and equity had a consequent effect upon the discount rate.
12. On the basis that strategic bidders would be involved, the judge said that it was appropriate for Potter to rely upon the Cargill deal model 'as a proxy for assumptions developed by a hypothetical purchaser as a starting point' for his valuation. He said that this 'starting point' would not include valuation of all potential synergies and would necessarily be prior to consideration of the effect of the Operational Practices.[831]
13. The judge then said:

To be clear, having determined that the hypothetical purchaser included strategic bidders, there was no real controversy about the appropriate starting point. The Viterra Parties submitted, consistent with Potter's evidence, that there was no material difference in the forecasts in the Goldman Sachs' valuation (that was adopted by Klein), and the Cargill deal model (that was adopted by Potter). Similarly, leaving aside the issue of financial bidders, the Cargill Parties submitted there were only 2 primary areas of difference between Klein and Potter.[832]