Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2014 00146

CARGILL AUSTRALIA LIMITED (ACN 004 684 173)	Plaintiff
v
VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS	Defendants
and
CARGILL, INCORPORATED AND OTHERS	Third parties

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATES OF HEARING:	18-21, 25-28 June, 2-5, 9, 10, 16-19, 23-26, 30, 31 July, 1, 2, 6-9, 13-16, 20-23, 27-30 August, 3-7, 10-14, 19-20, 24-27 September, 1, 8-11, 15, 23, 24 October, 19, 21, 22 November, 4, 6, 12, 20 December 2018; 1, 11, February, 15, 18, 21, 29 March, 2, 5, 23 April, 1-3, 6-9, 20, 21, 27, 31 May, 5, 14, 27 June, 15, 16 July, 5-9, 12-16, 19-21 August, 8, 22 November 2019; 26 March, 16 April 2020; 4 March, 14 April, 6, 11 May, 4 June 2021
DATE OF JUDGMENT:	28 January 2022
CASE MAY BE CITED AS:	Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28)
MEDIUM NEUTRAL CITATION:	[2022] VSC 13

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MISLEADING OR DECEPTIVE CONDUCT – Sale of malt business – Whether business engaged in inappropriate operational practices before sale agreement and completion of sale – Laboratory analyses of malt sold – Misreporting results – Company policies – Procedures concealed from customers and auditors – Undisclosed misreporting of barley varieties used in malting – Undisclosed use of gibberellic acid in malt production when prohibited by customers – Whether practices engaged in routinely – Statistical analyses – Whether practices underpinned financial and operational performance – Whether practices standard within malting industry – Whether practices not disclosed to buyer – Blind auction sale process – 2 stage process established to create competitive tension between bidders – Confidentiality deed – Information memorandum – Imposed requirements of phase 1 – Indicative bid – Preferred bidders selected for phase 2 – Management presentation – Due diligence – Information provided in data room – Question and answer process – Whether representations made relating to financial and operational information – Whether misleading – Representations after phase 2 concerning bids from competing prospective buyers – Whether misleading – Whether conduct in trade or commerce within Australia or between Australia and places outside Australia – Increase in bid – Acquisition agreement – Whether representations made in same terms as warranties given – Whether misleading – Further representations made after agreement and before completion – Whether misleading.

MISLEADING OR DECEPTIVE CONDUCT – Causation – Representations calculated to induce entry into contract – Counterfactual based on absence of misleading or deceptive conduct – Whether buyer would have entered into contract – Whether buyer would have increased bid – Whether buyer would have completed sale – Whether buyer deprived of opportunity to obtain properly informed legal advice on right to terminate acquisition agreement – Whether buyer would have terminated.

MISLEADING OR DECEPTIVE CONDUCT – Whether conduct deemed to be conduct of corporation – Conduct on behalf of a corporation – Actual or apparent authority – Scope of authority – Whether certain persons acted on behalf of sellers during sale process – Attribution of knowledge – Competition and Consumer Act 2010 (Cth), s 139B(2).

MISLEADING OR DECEPTIVE CONDUCT – Engaging in conduct – Refraining from doing an act – Whether intention required where conduct constituted by silence – Conduct engaged in – Competition and Consumer Act 2010 (Cth), s 4(2).

MISLEADING OR DECEPTIVE CONDUCT – Release given before substantive dealings commenced – Effect of disclaimers – Disclaimers including as to accuracy and reliance – Sophisticated, well-advised commercial parties – Large commercial transaction – Freedom of contract – Consideration of English authorities – Whether terms of contract contrary to public policy – Australian Consumer Law – Deceit.

CONTRACT – Breach of warranties – Contractually agreed deemed knowledge – Reasonable enquiries – Effect of limitation clause – Whether warranties to be read down or qualified – Whether records as warranted – Whether data room documentation as warranted – Whether defaults under material contracts – Whether facts capable of giving rise to a claim – Whether business conducted in the ordinary course in a proper and efficient manner – Whether compliance with laws.

CONTRACT – Clauses limiting liability – Sellers not liable for claims if business sold – Proper construction – Effect of clause on contractual claims for breach of warranty – Effect of clause on claims for misleading conduct and deceit.

DECEIT – Whether corporations knew representations untrue, did not genuinely believe representations true, or reckless as to whether representations true or false – Knowledge of a corporation – Attribution of knowledge – Whether knowledge of individual could be attributed to corporation – Aggregation of knowledge.

DECEIT – Further misrepresentations before completion – Whether corporations knew representations untrue, did not genuinely believe representations true, or reckless as to whether representations true or false – Knowledge of a corporation – Attribution of knowledge – Whether knowledge of individual could be attributed to corporation – Whether knowledge of representations made by person with relevant knowledge – Aggregation of knowledge.

LOSS – Applicable principles – Assessment of loss suffered by misleading or deceptive conduct inducing a transaction – Buyer would not have entered into transaction absent misleading or deceptive conduct – Difference between purchase price and “true value” – “Left in hands” approach – Expert evidence – Hypothetical purchaser – Discounted cash flow – Capitalisation of future maintainable earnings – Reasonableness of assumptions underpinning experts’ valuation – Relevance of events after sale completed – Australian Consumer Law, s 236.

LOSS – Whether failure to take reasonable care – Competition and Consumer Act 2010 (Cth), s 137B – Applicability – Whether failure to mitigate loss – Concurrent wrongdoers – Whether loss apportionable – Whether defendants excluded concurrent wrongdoers – Competition and Consumer Act 2010 (Cth), ss 87CB(1), 87CC(1) – Applicability.

MISLEADING OR DECEPTIVE CONDUCT – Counterclaim – Third party claim – Whether buyer or buyer’s parent company made representations by entering into confidentiality deed – Whether buyer made no reliance representations by entering into acquisition agreement – Whether representations relied on by sellers – Whether misleading – Whether loss suffered – Whether sellers to be indemnified by buyer’s parent company pursuant to acquisition agreement.

CONTRACT – Enforceability of confidentiality deed – By whom – Against whom.

CONTRACT – Counterclaim – Third party claim – Confidentiality deed – Whether bringing or instituting proceeding in breach – Whether proceeding caused or permitted by buyer’s parent company – Whether buyer’s reliance on representations in breach – Proper construction of deed of release – Interaction between deed of release and confidentiality deed – Accrued rights, obligations, claims or liabilities – Effect of liability terms in acquisition agreement – Whether certain clauses void or unenforceable as contrary to public policy – Australian Consumer Law – Deceit.

MISLEADING OR DECEPTIVE CONDUCT – Third party claim by sellers against company the subject of the sale – Whether company engaged in relevant conduct – Third party claim by sellers against employees comprising senior management of business sold – Whether representations made by employees to sellers – Whether conduct in trade or commerce – Warranty verification process – Adequacy – Reliance – Whether if informed of existence of certain matters sellers would have taken steps to prevent or mitigate loss.

CONTRACT – Whether employees breached contractual obligations to act ethically and in best interest of employer – Proper construction – Relevance of code of conduct – Whether senior executive breached contractual obligation to act honestly – Causation – Whether loss suffered.

DECLARATORY RELIEF – Whether relief sought beyond issues raised in the proceeding – Whether ought to be granted.

EVIDENCE – Whether failure to call witnesses – Inferences – Plaintiff’s employees – Former and current employees engaged in business sold some of whom also third parties to the proceeding – Customers of business sold – Defendants’ employees.

EXPERT EVIDENCE – Laboratory analysis of organic product – Limitations of analytical methods – Variability and uncertainty in laboratory analysis – Error – Whether procedure scientifically justifiable decision rule – Whether procedures for reporting results ought to be transparent.

EXPERT EVIDENCE – Whether certain practices standard in malt industry – Expert’s misstatement of expertise – Whether opinions expressed based on specialised knowledge – Whether grounds for opinions properly disclosed – Evidence Act 2008 (Vic), s 79(1).

PRACTICE AND PROCEDURE – Application for parts of statement of claim to be struck out – Whether interference with due administration of justice – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.02 – Civil Procedure Act 2010 (Vic), ss 16, 19 – Court’s inherent jurisdiction.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff and the 1^st and 2^nd third parties	Mr P Anastassiou QC (until 22 November 2018) Mr P Solomon QC (from 18 March 2019) Ms L Nichols QC (until 22 October 2019) Ms C Button QC (from 18 July 2018 to 11 February 2019) Dr C Parkinson (from 1 May 2019) Ms K Foley (14 June 2019) Ms K Burke Ms H Tiplady (until 14 August 2018) Ms P Thiagarajan (20, 21 August 2018) Mr C Tran (until 11 September 2018) Mr T Barry Mr M Tennant Ms J Whiting (solicitor) (10, 30, 31 July, 7, 14, 28 August 2018) Ms C McCudden (solicitor) (29 August, 20 December 2018, 4 March, 11 May, 4 June 2021)	Gilbert + Tobin
For the defendants	Mr A Myers QC Mr G Nell SC (14, 21, 28 August, 11-13 September 2018) Mr D McLure SC (10, 18 July, 7 August 2018) Mr S Senathirajah QC Mr S Parmenter QC Mr K Wolahan Mr J Carter (14, 21, 28 August, 11-14 September, 23-24 October 2018, 16, 19 August 2019) Ms K O’Gorman (21 August 2018) Mr S Prendergast Ms K Dovey Mr O Wolahan	King & Wood Mallesons (until 12 March 2020) Johnson Winter & Slattery (from 13 March 2020)
For the 3^rd third party	Mr J Peters QC Mr S Rosewarne Ms K Styles (solicitor) (4 March, 4 June 2021) Ms G Wilson (solicitor) (14 April, 6, 11 May 2021)	Maddocks
For the 4^th third party	Mr M Galvin QC Mr D Bongiorno Ms N Younan (solicitor) (4 March, 14 April, 6, 11 May, 4 June 2021)	Brian Ward & Partners (until 10 July 2017) Ward Lawyers (from 11 July 2017 to 28 February 2019) DWF (Australia) (from 1 March 2019 to 13 May 2019) Gilchrist Connell (from 14 May 2019)
For the 5^th third party	Mr R Attiwill QC Ms M Szydzik Ms N Younan (solicitor) (4 March, 14 April, 6, 11 May, 4 June 2021)	Brian Ward & Partners (until 10 July 2017) Ward Lawyers (from 11 July 2017 to 28 February 2019) DWF (Australia) (from 1 March 2019 to 13 May 2019) Gilchrist Connell (from 14 May 2019)
For the 6^th third party	Ms W Harris QC Mr C Archibald QC Mr T Jeffrie Ms K Brandon (solicitor) (4 March, 14 April, 6, 11 May, 4 June 2021)	HWL Ebsworth
For the 7^th third party	Mr S Pitt Ms C Alden Ms N Younan (solicitor) (4 March, 14 April, 6, 11 May, 4 June 2021)	Brian Ward & Partners (until 10 July 2017) Ward Lawyers (from 11 July 2017 to 28 February 2019) DWF (Australia) (from 1 March 2019 to 13 May 2019) Gilchrist Connell (from 14 May 2019)

TABLE OF CONTENTS

A.. Introduction

A.1..... A precious stone?
A.2..... The main transaction and the main parties
A.3..... The production of malt from barley

B.. The difference between theoretical blend analysis and actual analysis

C.. The key allegations and the remaining parties to the proceeding

D.. Overview of the key parties’ stated approach to business conduct

D.1..... Cargill
D.2..... Viterra
D.3..... Glencore

E... Joe White before September 2009

E.1...... Operations and reporting
E.2...... Ownership changes and other arrangements

F... Some key persons of the Viterra Parties

G.. Viterra acquires Joe White and formalises aspects of the Joe White Business relevant to some of the Operational Practices

H.. Cargill, Inc’s malting business

I.... Cargill prepares for the possibility of purchasing Joe White

J.... Glencore acquires Viterra, including Joe White

K.. Preparation for the sale of Joe White

L... The selling of Joe White commences

M. Distribution of the Information Memorandum and related matters

N.. Cargill’s indicative bid

O.. The sale process progresses, including due diligence

P... The Management Presentation and related events

Q.. The sale process continues and final bids are made

R.. Cargill induced to increase its final bid

S... The Acquisition Agreement

T.. Post-Acquisition Agreement to Completion

U.. Post-Completion events

V.. The pleadings

W. Ancillary issues for determination

W.1.... Whether parts of the Statement of Claim should be struck out because of Cargill’s agreement with Hughes
W.2.... Credibility of witnesses
W.3.... Witnesses not called

X.. Issues for determination

X.1..... Did the Information Memorandum contain statements pleaded in the Statement of Claim and in the Defence?
X.2..... During the Operations Call, did representatives of (a) Glencore and/or (b) Viterra say words to the effect pleaded in paragraph 17 of the Statement of Claim?
X.3..... During the Commercial Call, did representatives of (a) Glencore and/or (b) Viterra say words to the effect pleaded in paragraph 18 of the Statement of Claim?
X.4..... During the Management Presentation, did representatives of Viterra on behalf of (a) Glencore and/or (b) Viterra say words to the effect pleaded in paragraph 18A of the Statement of Claim, and did the Management Presentation Memorandum contain the Management Presentation Memorandum Disclaimers pleaded in paragraph 29B of the Viterra Defence?
X.5..... Did the Confidentiality Deed contain the confidentiality deed terms pleaded at paragraph 18 of the Defence, and the further terms referred to in paragraph 18 of the Reply, and did the confidentiality deed terms apply to Cargill, Inc and Cargill Australia prior to the provision to Cargill, Inc of the Phase 1 Process Letter and the Information Memorandum?
X.6..... Did the Phase 1 Process Letter contain the Phase 1 Process Letter statements as pleaded at paragraph 12 of the Defence?
X.7..... Did the Phase 2 Process Letter contain the Phase 2 Process Letter statements as pleaded at paragraph 25 of the Defence, and the further statements in paragraph 25 of the Reply?
X.8..... Was Cargill, Inc and its Representatives’ access to the Data Room documentation (as defined in paragraph 26(a) of the Defence) pursuant to, and subject to, the Data Room Protocol and did the Data Room Protocol contain the terms pleaded in paragraph 26B of the Defence?
X.9..... Is it the fact that:
(1)....... Any laboratory test measurement of the properties of material such as malt is necessarily subject to error and uncertainty?
(2)The main causes of such error and uncertainty are:
(a)inherent limitations on the precision of the testing equipment and testing procedures;
(b)random effects, including natural variability of the material;
(c)sampling effects; and
(d)systematic/recovery bias errors?

(3)As a result, any laboratory test measurement is only an estimate/approximation of the true value of the measurand (i.e. the physical/chemical property being measured), and merely implies a range of values which can reasonably be attributed to the measurand, such that the true value of the measurand cannot be determined?
(4) Accordingly, the supplier/producer must seek to ensure that any particular laboratory test measurement best takes into account all of the known effects of error and uncertainty including by the application of the subjective experience or expertise of the laboratory professionals conducting the measurements?
(5)Recognising the matters set out in (3) and (4) above, a supplier/producer’s process for determining whether or not a product complied with contractual specifications such that it can be released to its customer, can include a set of decision-making rules or policies (“a decision rule”)?
(6)Uncertainty in laboratory test measurement can be addressed by the application of subjective experience/expertise of a suitably qualified person?
(7)A decision rule can take into account:
(a)inherent limitations on the precision of testing equipment and testing procedures; and
(b)random effects, including natural variability of the material, by reference to industry accepted objective quantification of the magnitude of such uncertainty?

(8)One such objective quantification accepted within the commercial malting industry and the brewing industry is that derived from continuing (corroborative) programs such as the American Society of Brewing Chemists Laboratory Proficiency Testing Scheme and the Maltsters of Great Britain Malt Analytes Proficiency Testing Scheme to incorporate a tolerance of 2 standard deviations to the measurement of measurands in respect of malt?
(9)The Viterra Certificate of Analysis Procedure is an example of a decision rule?

X.10... Was it the fact that:
(1) Joe White routinely, and without informing customers:
(a)....... supplied malt to customers that did not comply with contractual requirements and specifications;
(b)...... supplied Certificates of Analysis to customers that misstated the results of analytical testing on the malt, so that the Certificates of Analysis reported that the malt complied with contractual requirements and specifications when it did not?

(2)....... The Viterra Practices were partly recorded in and endorsed by the Viterra Policies (being the Viterra Certificate of Analysis Procedure and the Malt Blend Parameters Procedure)?
(3)....... Joe White’s financial and operational performance for the financial year 2010 to part of the financial year 2013 was substantially underpinned by Joe White’s practice of supplying malt to customers pursuant to the Viterra Practices and the Viterra Policies that did not comply with the relevant contracts?
(4)....... But for the Viterra 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 disclosed in the Information Memorandum and during the Due Diligence?

X.11... Was it the fact that, before 22 October 2013, each of the Viterra Parties did not know of any of the matters pleaded in paragraph 30(bb), (bc), (bd) and (be) of the Defence?
X.12... Did (a) Glencore and/or (b) Viterra disclose to Cargill, in the Information Memorandum or during the Due Diligence, any, and if so which, of the matters alleged to be the Undisclosed Matters?
X.13... Prior to 4 August 2013:
(1)Were the Alleged Industry Practices engaged in by other commercial malthouses throughout the world who were in the business of supplying malt to customers, not including internal malt production facilities/units within brewing businesses and, if so, to what extent?
(2)Were the Alleged Industry Practices not ordinarily disclosed to customers?
(3)If the Alleged Industry Practices were engaged in by other commercial malthouses in the commercial malting industry, were the Alleged Industry Practices known to:
(a)other maltsters in the commercial malting industry and, if so, to what extent; and
(b)Cargill, Inc and Cargill Australia?

X.14... Was it the fact that each of the Viterra Parties did not have any awareness or knowledge of the Alleged Industry Practices prior to 22 October 2013, including that none of Rees, Fitzgerald, Mann and/or Mattiske had any such awareness or knowledge?

X.15... Did Glencore and/or Viterra make any, and if so, which, of the representations pleaded in paragraph 27 of the Statement of Claim, including in light of: the Sale Process Disclaimers (pleaded in paragraph 31 of the Defence); the Acquisition Agreement Liability Terms (pleaded in paragraph 37 of the Defence); and the Alleged Industry Practices?
X.16... Were the Financial and Operational Performance Representations false for the reasons pleaded in paragraph 30 of the Statement of Claim, including in light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms, and the Alleged Industry Practices and did Glencore and/or Viterra thereby engage in misleading or deceptive conduct within the meaning of section 18 of the Australian Consumer Law?
X.17... Were the Financial and Operational Performance Representations made in trade or commerce in Australia?
X.18... If the Financial and Operational Performance Representations or any of them were made by Merrill Lynch, Mattiske, Hughes, Youil, Argent and/or Viterra, is that conduct deemed to be Glencore’s conduct under section 139B(2) of the Competition and Consumer Act?
X.19... If the Financial and Operational Performance Representations, or any of them, were made by Merrill Lynch, Mattiske, Hughes, Youil, Argent and/or Glencore, is that conduct deemed to be Viterra’s conduct under section 139B(2) of the Competition and Consumer Act?
X.20... Did Cargill Australia enter into the Acquisition Agreement in reliance on the Financial and Operational Performance Representations, including in light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms, and the Alleged Industry Practices?
X.21... Prior to entering into the Acquisition Agreement, did Cargill Australia and Cargill, Inc have the knowledge or state of mind pleaded in paragraph 31A of the Defence?
X.22... Did Viterra know that the Financial and Operational Performance Representations or any of them were or was false and/or did Viterra not genuinely believe the representations were true and/or was Viterra reckless as to whether they were true or false?
X.23... Did Viterra make the Financial and Operational Performance Representations with the intent that Cargill Australia would rely on them by entering into the Acquisition Agreement?
X.24... Did Glencore and/or Viterra provide the October 2013 Responses as alleged in paragraph 25 of the Statement of Claim?
X.25... Did Glencore and/or Viterra convey any and if so which of the Pre-Completion Representations as pleaded in paragraph 33 of the Statement of Claim, including in light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms and the Alleged Industry Practices?
X.26... Were the Pre-Completion Representations false for the reasons pleaded in paragraphs 19 and 30 of the Statement of Claim, including in light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms and the Alleged Industry Practices, and did Glencore and/or Viterra thereby engage in misleading or deceptive conduct within the meaning of the Australian Consumer Law?
X.27... Were the Pre-Completion Representations made in trade or commerce in Australia?
X.28... If the Pre-Completion Representations, or any of them, were made by Mattiske and/or Viterra, is that conduct deemed to be Glencore’s conduct under section 139B(2) of the Competition and Consumer Act?
X.29... If the Pre-Completion Representations, or any of them, were made by Mattiske and/or Glencore, was the conduct deemed to be Viterra’s conduct under section 139B(2) of the Competition and Consumer Act?
X.30... Did Cargill Australia rely upon the Pre-Completion Representations in completing the Acquisition Agreement, including in light of the Sale Process Disclaimers, Acquisition Agreement Liability Terms and the Alleged Industry Practices?
X.31... Was Cargill Australia deprived of the opportunity to obtain properly informed legal advice about whether it was entitled to terminate the Acquisition Agreement prior to Completion, as a result of Glencore or Viterra, or both, making the Pre-Completion Representations?
X.32... If Cargill Australia had obtained properly informed legal advice, would that advice have been to the effect that it was lawfully entitled to terminate the Acquisition Agreement prior to Completion?
X.33... If, prior to Completion, Cargill Australia had received advice to the effect that it was lawfully entitled to terminate the Acquisition Agreement, would it have exercised its right to do so?
X.34... Prior to Completion, did Cargill Australia and Cargill, Inc have the knowledge or state of mind pleaded in paragraph 40A of the Defence?
X.35... Did Viterra know that the Pre-Completion Representations or any of them were or was false and/or did Viterra not genuinely believe the representations were true and/or was Viterra reckless as to whether they were true or false?
X.36... Did Viterra make the Pre-Completion Representations with the intent that Cargill Australia should rely on them by completing the Acquisition Agreement?
X.37... Did Glencore know that the Pre-Completion Representations, or any of them, were or was false and/or did Glencore not genuinely believe the representations were true and/or was Glencore reckless as to whether they were true or false?
X.38... Did Glencore make the Pre-Completion Representations with the intent that Cargill Australia should rely on them by completing the Acquisition Agreement?
X.39... Is Viterra, by the operation of clause 31.15 of the Acquisition Agreement, deemed to have known of the facts, matters and circumstances pleaded in paragraphs 19 and 30 of the Statement of Claim, for the purposes of the Warranties?
X.40... Are any of the Warranties to be read down or qualified pursuant to clause 13.3(a) of the Acquisition Agreement by any information that was fairly disclosed to Cargill Australia or otherwise within its knowledge which is inconsistent with the relevant Warranty?
X.41... Did Viterra breach Warranties 4.2(a), (b) and (c) regarding its Records on the date of the Acquisition Agreement (4 August 2013) or at Completion (31 October 2013)?
X.42... Did Viterra breach Warranties 12(a), 12(b) and 12(c) regarding the Data Room Documentation on the date of the Acquisition Agreement (4 August 2013) or at Completion (31 October 2013)?
X.43... Did Viterra breach Warranty 7.3 regarding defaults under Material Contracts on the date of the Acquisition Agreement (4 August 2013) or at Completion (31 October 2013)?
X.44... Did Viterra breach Warranty 9.2 regarding facts capable of giving rise to a Claim on the date of the Acquisition Agreement (4 August 2013) or at Completion (31 October 2013)?
X.45... Did Viterra breach Warranties 13.4 and 17(a) regarding the conduct of the Joe White Business on the date of the Acquisition Agreement (4 August 2013) or at Completion (31 October 2013)?
X.46... Did Viterra breach Warranty 6.1(e) on the date of the Acquisition Agreement (4 August 2013) or at Completion (31 October 2013)?
X.47... Did Viterra breach clauses 13.1 and 13.8 of the Acquisition Agreement?
X.48... Did Viterra convey representations in the same terms as the Warranties by providing the Warranties in the Acquisition Agreement?
X.49... Did Cargill Australia rely on the Warranty Representations in entering into the Acquisition Agreement?
X.50... Were the Warranty Representations false because the Warranties the subject of the Warranty Representations were breached and did Viterra thereby engage in misleading or deceptive conduct within the meaning of section 18 of the Australian Consumer Law?
X.51... Were the Warranty Representations made in trade or commerce in Australia?
X.52... Did Viterra know that the Warranty Representations or any of them were false and/or did they not genuinely believe the representations were true and/or were they reckless as to whether they were true or false?
X.53... Did Viterra make the Warranty Representations with the intent that Cargill Australia should rely on them by entering into the Acquisition Agreement?
X.54... Did Glencore and/or Viterra convey the Other Bidders Representations?
X.55... Were the Other Bidders Representations false, and did Glencore and/or Viterra thereby engage in misleading or deceptive conduct within the meaning of section 18 of the Australian Consumer Law?
X.56... Were the Other Bidders Representations made in trade or commerce within Australia, or between Australia and places outside Australia, such that section 18 of the Australian Consumer Law applies?
X.57... Did Cargill, Inc rely on the Other Bidders Representations in raising its bid by $15 million to $420 million?
X.58... Did Cargill Australia rely on the Other Bidders Representations in entering into the Acquisition Agreement?
X.59... Did Glencore and/or Viterra know that the Other Bidders Representations were false and/or did they not genuinely believe the Other Bidders Representations were true and/or were they reckless as to whether the Other Bidders Representations were true or false?
X.60... Did Glencore and/or Viterra make the Other Bidders Representations with the intent that Cargill, Inc should rely on them by raising its bid by $15 million, and that Cargill Australia should rely on them by entering into the Acquisition Agreement? If so, and Cargill relied upon the Other Bidders Representations (see issues 57 and 58 above), did Cargill Australia suffer any loss?
X.61... Did Glencore and/or Viterra convey the representations pleaded in paragraph 67 of the Statement of Claim (“the Co-Operative Bulk Representations”)?
X.62... Were the Co-Operative Bulk Representations false by reason of the matters pleaded in paragraphs 63 and 64 of the Statement of Claim, including in light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms and the terms of the Co-Operative Bulk Agreement as pleaded in paragraph 91 of the Defence (“the Co-Operative Bulk Agreement Terms”), and in consideration of Co-Operative Bulk’s termination claim, and did Glencore and/or Viterra thereby engage in misleading or deceptive conduct within the meaning of section 18 of the Australian Consumer Law?
X.63... Did Cargill Australia enter into the Acquisition Agreement for $420 million in reliance on the Co-Operative Bulk Representations?
X.64... Were the Co-Operative Bulk Representations made in trade or commerce in Australia or between Australia and places outside of Australia?
X.65... Did Glencore and/or Viterra owe Cargill Australia a duty to take reasonable care in making the Financial and Operational Performance Representations and/or the Warranty Representations and/or the Pre-Completion Representations (“the Due Diligence Information Duty”)?
X.66... Did Glencore and/or Viterra breach the Due Diligence Information Duty by reason of:
(1)any falsity of the Financial and Operational Performance Representations, the Warranty Representations and/or the Pre-Completion Representations; and
(2)any knowledge by Viterra of the Undisclosed Matters (individually or in combination) from around early 2010, or from around mid-October 2013?

X.67... Did Glencore and/or Viterra owe Cargill Australia a duty to take reasonable care in providing the Financial and Operational Information (“the Co-Operative Bulk Information Duty”)?
X.68... Did Glencore and/or Viterra know or ought to have known of the termination notice pleaded in paragraph 63 of the Statement of Claim, and did they breach the Co-Operative Bulk Information Duty by disclosing the Co-Operative Bulk Agreement in the Data Room documents, but not disclosing the termination notice or the fact that Co-Operative Bulk had terminated or purported to terminate the Co-Operative Bulk Agreement, including in light of the Sale Process Disclaimers, the Acquisition Agreement Liability Terms and the Co-Operative Bulk Agreement Terms, and in consideration of Co-Operative Bulk’s termination claim?
X.69... Was the Independent Expert appointed to determine certain disputed issues pursuant to clauses 7.2(f)(iii) and 8 of the Acquisition Agreement competent to determine the Disputed Issues?
X.70... By instituting this proceeding, has Cargill Australia waived any right and/or made an election which precludes it from having an Independent Expert determine the Disputed Issues?
X.71... Are the Viterra Parties therefore bound by the outcome of the Independent Expert’s determination to the extent it purported to determine any of the Disputed Issues and are they liable to pay the amount as claimed by Cargill Australia (see issue 75 below)?
X.72... If the Viterra Parties are bound by the outcome of the Independent Expert’s determination, are the claims brought by Cargill Australia in this proceeding in relation to the Disputed Issues claims brought in breach of clause 7.2(f)(iii) of the Acquisition Agreement, which ought to be dismissed?
X.73... Has Cargill Australia suffered loss by reason of:
(1)....... Any contravention by Glencore and/or Viterra of section 18 of the Australian Consumer Law?
(2)....... Any deceit by Glencore and/or Viterra?
(3)....... Any breach by Viterra of the Warranties and clause 13.1 and/or clause 13.8 of the Acquisition Agreement?
(4)....... Any breach by Glencore and/or Viterra of the Due Diligence Information Duty?
(5)....... Any breach by Glencore and/or Viterra of the Co-Operative Bulk Information Duty?

X.74... To what, if any, damages is Cargill Australia entitled, and against any or which of Glencore or Viterra:
(1)Pursuant to section 236 of the Australian Consumer Law?
(2)For deceit?
(3) For breach of the Acquisition Agreement?
(4)For breach of the Due Diligence Information Duty?
(5)For breach of the Co-Operative Bulk Information Duty?

X.75... Is Cargill entitled to payment in the sum of $774,886.64 together with interest, under the Acquisition Agreement, in respect of the Adjustment Amount?
X.76... What is the effect, if any, of clauses 10.2 and 10.3 of the Confidentiality Deed on Cargill Australia’s claims?
X.77... What is the effect of clauses 15.8(b) and 15.9 of the Acquisition Agreement on Cargill Australia’s claims for loss and damage?
X.78... Is Cargill Australia prevented from recovering any loss in relation to the Co-Operative Bulk Representations or the Co-Operative Bulk Information Duty by reason of:
(1)Clauses 10(a), 10(b), 10(c) and 11 of the 31 October Agreement (as defined in paragraph 42 of the Defence);
(2)Clauses 4.2, 8.1(k)(1) and 8.2(a) of the Co-Operative Bulk Agreement, and Cargill Australia’s knowledge of the content of the Co-Operative Bulk Agreement prior to entering into the Acquisition Agreement; and/or
(3)Clause 15.2 of the Acquisition Agreement?

X.79... Did Cargill Australia take reasonable steps to mitigate the losses alleged at paragraphs 63M, 63N and 75 to 77 of the Statement of Claim?
X.80... If Cargill Australia has suffered loss as a result of any contraventions by Glencore and/or Viterra of section 18 of the Australian Consumer Law, has Cargill Australia suffered that loss partly as a result of its failure to take reasonable care, and ought Cargill Australia’s recoverable loss be reduced?
X.81... If Cargill Australia has suffered loss or damage as a result of any wrongs by Glencore and/or Viterra, has Cargill Australia suffered that loss or damage partly as a result of its failure to take reasonable care, and ought Cargill Australia’s damages be reduced under section 26(1) of the Wrongs Act 1958 (Vic)?
X.82... Are Cargill Australia’s claims for contravention of section 18 of the Australian Consumer Law apportionable claims within the meaning of section 87CB(1) of the Competition and Consumer Act? If so, are Joe White, Hughes, Youil and/or Cargill, Inc concurrent wrongdoers? If so, what proportion of the damage or loss claimed by Cargill Australia does the court consider just for the defendants to bear?
X.83... Are Cargill Australia’s Negligence Claims (as defined in the Defence at paragraph 116(a)) apportionable claims within the meaning of section 24AE of the Wrongs Act? If so, are Joe White, Hughes, Youil and/or Cargill, Inc concurrent wrongdoers? If so, what proportion of the damage or loss claimed by Cargill Australia does the Court consider just for the defendants to bear?
X.84... What is the effect of the Deed of Release dated 31 October 2013?
X.85... Is the Confidentiality Deed enforceable by Glencore and/or Viterra against Cargill Australia?
X.86... Has Cargill Australia breached clauses 10.2 and 10.3 of the Confidentiality Deed by instituting this legal proceeding against Glencore and Viterra?
X.87... Has Cargill Australia breached clauses 8.3(a) and 8.3(c) of the Confidentiality Deed by relying upon the Financial and Operational Performance Representations, the Warranty Representations, the Pre-Completion Representations, the Other Bidders Representations and/or the Co-Operative Bulk Representations?
X.88... To what relief, if any, is Glencore and/or Viterra entitled as a consequence?
X.89... Did Cargill Australia convey the Confidentiality Deed Representations as pleaded in paragraph 120C of the Viterra Parties’ counterclaim?
X.90... Were the Confidentiality Deed Representations made in trade or commerce within the meaning of section 18 of the Australian Consumer Law?
X.91... Did Viterra rely on the Confidentiality Deed Representations in entering into the Acquisition Agreement?
X.92... If the Confidentiality Deed Representations were representations as to future matters, did Cargill Australia have reasonable grounds for making them?
X.93... Were the Confidentiality Deed Representations misleading or deceptive or likely to mislead or deceive and did Cargill Australia thereby engage in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law?
X.94... What, if any, damages or other relief is Glencore and/or Viterra entitled to as a consequence?
X.95... Did Cargill Australia convey the No Reliance Representations as alleged in paragraph 121 of the Defence and paragraph 38 of the Third Party Claim?
X.96... Were the No Reliance Representations made in trade or commerce within the meaning of section 18 of the Australian Consumer Law?
X.97... Did Viterra rely on the No Reliance Representations in entering into the Acquisition Agreement?
X.98... Were the No Reliance Representations misleading or deceptive or likely to mislead or deceive and did Cargill Australia thereby engage in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law?
X.99... What, if any, damages or other relief is Glencore and/or Viterra entitled to as a consequence of the matters in issues 95 to 98 above?
X.100. Is the Confidentiality Deed enforceable by Glencore and/or Viterra against Cargill, Inc?
X.101. Did Cargill, Inc cause or permit Cargill Australia to institute this proceeding in respect of Confidential Information and the alleged non-disclosure of Information?
X.102. Did that constitute a breach of clauses 3.3, 10.2(b) and/or 10.3 of the Confidentiality Deed?
X.103. What, if any, damages or other relief is Glencore and/or Viterra entitled to as a consequence?
X.104. Did Cargill, Inc cause or permit Cargill Australia to rely on any of the Financial and Operational Performance Representations, the Warranty Representations, the Pre-Completion Representations, the Other Bidders Representations or the Co-Operative Bulk Representations?
X.105. Did that constitute a breach by Cargill, Inc of clauses 3.3 and/or 8.3(a) and/or (c) of the Confidentiality Deed?
X.106. What, if any, damages or other relief is Glencore and/or Viterra entitled to as a consequence?
X.107. Are Glencore and/or Viterra estopped from making a claim against Cargill, Inc for breach of clauses 8.3(a) and/or 8.3(c) of the Confidentiality Deed?
X.108. Did Cargill, Inc wrongfully induce Cargill Australia to breach clauses 10.2(a) and/or (b) and/or 10.3 of the Confidentiality Deed?
X.109. What, if any, damages or other relief is Glencore and/or Viterra entitled to as a consequence?

X.110. Did Cargill, Inc represent to Glencore and/or Viterra the Confidentiality Deed Representations as pleaded in paragraph 27 of the Third Party Claim?
X.111. Were the Confidentiality Deed Representations made in trade or commerce within the meaning of section 18 of the Australian Consumer Law?
X.112. Did Viterra rely upon the Confidentiality Deed Representations in entering into the Acquisition Agreement?
X.113. If the Confidentiality Deed Representations were representations with respect to future matters, did Cargill, Inc have reasonable grounds for making them?
X.114. Were the Confidentiality Deed Representations misleading or deceptive or likely to mislead or deceive and did Cargill, Inc thereby engage in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law?
X.115. What, if any, damages or other relief is Glencore and/or Viterra entitled to as a consequence?
X.116. Are Glencore and/or Viterra estopped from maintaining a claim against Cargill, Inc based upon the Confidentiality Deed Representations?
X.117. If Cargill Australia is held to have engaged in misleading or deceptive conduct by:
(1)Making the Confidentiality Deed Representations; and/or
(2)Making the No Reliance Representations,

was Cargill, Inc involved in that misleading or deceptive conduct, within the meaning of section 2(1) of the Australian Consumer Law?
X.118. What, if any, damages or other relief is Glencore and/or Viterra entitled to as a consequence?
X.119. Are Glencore and/or Viterra estopped from maintaining a claim against Cargill, Inc based upon its alleged involvement in any misleading or deceptive conduct by Cargill Australia?
X.120. If Glencore and/or Viterra have suffered loss as a result of any contraventions by Cargill, Inc of section 18 of the Australian Consumer Law, has Glencore and/or Viterra suffered that loss partly as a result of their failure to take reasonable care and ought their recoverable loss be reduced?
X.121. Are Glencore and/or Viterra’s claims against Cargill, Inc for contravention of section 18 of the Australian Consumer Law apportionable claims within the meaning of section 87CB(1) of the Competition and Consumer Act? If so, are Cargill, Inc, Hughes, Stewart, Youil, Wicks, Argent, Fitzgerald, Rees and/or Mattiske concurrent wrongdoers? If so, what proportion of the damage or loss claimed by Glencore and/or Viterra does the court consider just for each party to bear?
X.122. Were the No Reliance Representations incorrect or misleading?
X.123. Is Cargill, Inc required by reason of clause 20.3(a)(iv) of the Acquisition Agreement to indemnify Viterra against any liability arising as a consequence of the No Reliance Representations?
X.124. Prior to entry into the Acquisition Agreement, did Joe White represent to Glencore or Viterra, or both, that:
(1)the Information Memorandum Statements were true and correct;
(2)the Financial and Operational Information was true and correct;
(3)the Operations Call Statements were true and correct;
(4)the Commercial Call Statements were true and correct;
(5)the Management Presentation Statements were true and correct;
(6)the Undisclosed Matters did not exist; and/or
(7)the Warranties (being Warranties 4.2(a)-(c), 6.1(e), 7.3, 9.2, 12(a)-(c), 13.4, and 17(a) of the Acquisition Agreement) were true and correct?
(Collectively, “the Joe White Representations”.)

X.125. Prior to entry into the Acquisition Agreement, did Hughes, Youil, Wicks, Stewart and/or Argent represent to Glencore and/or Viterra the representations set out below in relation to each of them (collectively defined as “the Joe White Executives’ Representations”)?
X.126. Were the Joe White Representations or the Joe White Executives’ Representations, or both, made in trade or commerce within the meaning of section 18 of the Australian Consumer Law?
X.127. Did Glencore and/or Viterra rely upon the Joe White Representations and/or the Joe White Executives’ Representations in making the Financial and Operational Performance Representations and the Warranty Representations, and did Viterra rely upon the Joe White Representations and/or the Joe White Executives’ Representations in giving the Warranties?
X.128. Were the Joe White Representations and/or the Joe White Executives’ Representations misleading or deceptive or likely to mislead or deceive and did Joe White and/or the Third Party Individuals thereby engage in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law?
X.129. Were the Third Party Individuals involved within the meaning of section 2(1) of the Australian Consumer Law in any misleading or deceptive conduct by Joe White?
X.130. Prior to entry into the Acquisition Agreement, by reason of the Joe White Representations and/or the Joe White Executives’ Representations, were Glencore and/or Viterra not informed of the existence of any Undisclosed Matters or the inaccuracy of any Warranties?
X.131. If Glencore or Viterra had been informed of the existence of any “Undisclosed Matters found by the court” (as defined in paragraph 49A(a) of the Third Party Claim) or the inaccuracy of any “Incorrect Warranties found by the court” (as defined in paragraph 49A(b) of the Third Party Claim) prior to entry into the Acquisition Agreement would Glencore and/or Viterra have taken steps to:
(1)....... Disclose to potential purchasers of Joe White, including Cargill Australia, the Undisclosed Matters?
(2)....... Amend the terms of the Acquisition Agreement, before it was entered into, including the Warranties?
(3)....... Investigate the Undisclosed Matters?
(4)....... Cause Joe White to cease any “Viterra Practices found by the court” (as defined in paragraph 49B(f) of the Third Party Claim)?
and, were Glencore and/or Viterra therefore deprived of the opportunities to:
(5)....... Take the steps set out in sub-paragraphs (1) to (4) above (or any of them) prior to entry into the Acquisition Agreement?
(6)....... Avoid any liability to Cargill Australia in respect of:
(a)....... Any misleading or deceptive conduct in which Glencore and/or Viterra are held to have engaged in contravention of section 18 of the Australian Consumer Law?
(b)...... Any conduct amounting to deceit in which Glencore and/or Viterra are held to have engaged?
(c)....... Any conduct held to amount to breach by Viterra of the Acquisition Agreement?
(d)...... Any conduct amounting to negligent misrepresentation in which Glencore and/or Viterra are held to have engaged?

X.132. If Glencore and/or Viterra have suffered loss as a result of any contraventions by Joe White and/or the Third Party Individuals of section 18 of the Australian Consumer Law, has Glencore and/or Viterra suffered that loss partly as a result of their failure to take reasonable care and ought their recoverable loss be reduced?
X.133. Are Glencore and/or Viterra’s claims for contravention of section 18 of the Australian Consumer Law apportionable claims within the meaning of section 87CB(1) of the Competition and Consumer Act and/or section 24AI of the Wrongs Act and/or section 8 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act? If so, are Cargill, Inc, Joe White, the Third Party Individuals, Fitzgerald, Rees, Mattiske, King, Viterra Malt, Viterra Operations, Viterra Ltd and/or Glencore concurrent wrongdoers? If so, what proportion of the damage or loss claimed by Glencore and/or Viterra does the court consider just for each party to bear?
X.134. What, if any, damages or other relief is Glencore and/or Viterra entitled to against Joe White and/or the Third Party Individuals as a consequence?
X.135. Were the Third Party Individuals parties with Viterra Ltd to the service contracts pleaded in paragraph 66 of the Third Party Claim?
X.136. Did the terms of the service contracts require the Third Party Individuals to behave ethically and honestly and act in the best interest of Viterra Ltd?
X.137. Have the Third Party Individuals (including Hughes) failed to act in the best interest of Viterra Ltd and/or failed to act ethically, and thereby breached their service contracts, by reason of the making of the Joe White Executives’ Representations?
X.138. Further to issue 137, has Hughes failed to act in the best interest of Viterra Ltd, failed to act ethically and/or failed to act honestly, and thereby breached his service contract, by reason of the making of the Hughes Representations?
X.139. Was Viterra Ltd deprived of the opportunity to avoid liability to Cargill Australia because:
(1)As a result of the breaches of the service contracts, Glencore and/or Viterra were not informed of the existence of any Undisclosed Matters or the inaccuracy of any Incorrect Warranties?
(2)As addressed in issue 131 above, if Glencore and/or Viterra had been informed of the existence of any “Undisclosed Matters found by the court” or the inaccuracy of any “Incorrect Warranties found by the court” prior to entry into the Acquisition Agreement, then Glencore and Viterra would have taken the Alleged Steps

X.140. Is Viterra Ltd vicariously liable for the conduct of Hughes and/or Stewart and required to indemnify them in respect of loss and damage arising from, caused by or otherwise attributable to their actions or conduct carried out in the course of their employment?
X.141. Is Hughes entitled to be indemnified by Viterra Ltd as its employee in respect of any loss and/or damage arising from, caused by or otherwise attributable to his actions or conduct carried out in the course of his employment and/or pursuant to the terms of the indemnity agreement between Viterra Inc and Hughes dated 8 August 2012?
X.142. Are Viterra Ltd’s claims for breach of the service contracts apportionable claims within the meaning of section 24AE of the Wrongs Act and/or do they give rise to an apportionable liability with the meaning of section 3(2) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act? If so, are the Third Party Individuals, Fitzgerald, Rees, Mattiske, King, Glencore, Viterra Malt, Cargill, Inc, Joe White and/or Viterra Operations concurrent wrongdoers? If so, what proportion of the damage or loss claimed by Viterra Ltd does the court consider just for each party to bear?
X.143. What, if any, damages or other relief is Viterra Ltd entitled to against the Third Party Individuals as a consequence?
X.144. Are clauses 8.3(a), 8.3(c), 10.2 and/or 10.3 of the Confidentiality Deed void and/or unenforceable, and is Cargill, Inc thereby entitled to a declaration to that effect?
X.145. What is the effect, if any, of clause 15.4(b) of the Acquisition Agreement on Cargill Australia’s claims?

Y.. Conclusion

Z.. Further remarks

Z.1..... Consideration of the evidence, pleadings and submissions
Z.2..... Some parting words

ANNEXURE A

ANNEXURE B

ANNEXURE C

ANNEXURE D

Schedule A - Fact 6

Schedule B - Fact 27

DEFINITIONS[1]

[1]An asterisk after a person’s name indicates that person was a witness at the trial.

DEFINED TERM[2]	MEANING[3]	PAR (OR FN) DEFINED[4]
15 October Meeting	Meeting held on 15 October 2013	1102
25 October Reply Letter	Letter from Mattiske to Purser dated 25 October 2013	1405
30 October Reply Letter	Letter from Mattiske to Savona dated 30 October 2013	1524
ABB Grain	ABB Grain Ltd	88
Abbot*	Nicholas Abbot, information technology manager at Cargill	2312
Accumulation and Position Margin	Estimated margin available to Joe White if it undertook all barley procurement functions	526
Acquisition	Acquisition under the Acquisition Agreement completed on 31 October 2013	8
Acquisition Agreement	The acquisition agreement between Viterra Malt, Viterra Operations, and Viterra Ltd as Sellers and Cargill Australia as Buyer and Cargill, Inc as Buyer Guarantor	5
Acquisition Agreement Liability Terms	Clauses of the Acquisition Agreement relied upon by the Viterra Parties on questions of liability	2829
Acquisition Integration Review	Document entitled “[Joe White] Acquisition Integration Review” and dated 30 May 2014	1750
Action	Defined in the Acquisition Agreement	1022
Adelaide Malting	Adelaide Malting Co Pty Ltd	87
Administration System	Joe White’s accounting software package, which connected with the Laboratory Information System	260
Allan	Max Allan, senior associate, Mallesons	923
Alleged Industry Practices	Practices the Viterra Parties alleged were engaged in by commercial malthouses throughout the world	1860
Alleged Steps	Steps the Viterra Parties alleged they would have taken if they had known of the Viterra Practices	5128
Allens Letter of Advice	Letter of advice from Clark and O’Donahoo dated 17 October 2013	1170
Approved Purpose	Defined in the Confidentiality Deed	586
Argent	Scott Argent, seventh third party in the proceeding; financial controller, Viterra Feed New Zealand and Joe White; and controller – processing (Australia and New Zealand), Viterra	51
Argent Representations	Representations alleged to have been made by Argent prior to entry into the Acquisition Agreement	4792
Arndt	Brenda Arndt, senior attorney – mergers and acquisitions, Cargill, Inc	471
Asahi	Sumitomo Corporation Asahi	150
Asia Pacific Breweries	Asia Pacific Breweries Group	150
Assumption	Cargill, Inc’s assumption that it was entitled to rely upon the accuracy of the financial and operation performance information of the Joe White Business provided by Glencore or Viterra, or both, in the sale process and the Other Bidders Representations	4692
Aubertin*	Jacques Aubertin, partner of Stibbe law firm, called as expert on Belgian law	2030
AusBulk	AusBulk Ltd	87
Australian Consumer Law	Competition and Consumer Act 2010 (Cth), Schedule 2	1849
Barley Analysis	Analysis of Barley Data undertaken by Ryan	2317
Barley Data	Data extracted from the Laboratory Information System by Abbot relating to barley varieties used by Joe White	2316
Barley Inventory Call	Telephone call on 23 July 2013 between Argent, Viers, Merrill Lynch, Goldman Sachs and others	925
Beer Thai	Beer Thai 1991 Public Co Ltd	1675
Beer Thip	Beer Thip Brewery 1991 Co Ltd	3635
Bias Correction Standard	A standard requiring bias correction to be made uniformly	2211
Bickmore*	Alicia Bickmore, legal counsel, Viterra Ltd	157
Boon Rawd	Boon Rawd Brewery Co Ltd	789
Bowe*	Patrick Bowe Jr, summer associate, strategy & business development, Cargill, Inc	554
Breszee*	Aimee Breszee, Cargill, Inc’s technical accounting director	Fn 494
Buyer	Cargill Australia under the Acquisition Agreement	5
Buyer Guarantor	Cargill, Inc under the Acquisition Agreement	5
Cargill	Cargill Australia and Cargill, Inc	5
Cargill 22 October Letter	Letter from Cargill Australia to Viterra dated 22 October 2013	1236
Cargill 29 October Letter	Letter from Cargill Australia to Mattiske dated 29 October 2013	1451
Cargill Australia	Cargill Australia Ltd, the plaintiff and defendant by counterclaim	5[5]
Cargill Blending and Certificate of Analysis Procedure	Cargill, Inc’s combined malt blending and certificate of analysis procedure	302
Cargill Code	Cargill, Inc’s code of conduct	56
Cargill Covenant	Covenant in Hughes Letter	1868
Cargill, Inc	Cargill, Incorporated, the first third party	5
Cargill Indicative Bid	7 June 2013 non-binding indicative bid of $330–$360 million to acquire Joe White	622
Cargill Japan	Cargill Japan Ltd	2493
Cargill Malt	Cargill, Inc’s malt business unit	297
Cargill Parties	Collectively, Cargill Australia, Cargill, Inc and Joe White	5
Certificates of Analysis	Certificates stating the results of analytical testing accompanying malt	24
Christianson	Joseph Christianson, global merchandising & risk manager, Cargill Malt	563
Chubb	Vern Chubb, property services manager, Viterra	4964
Claim	Defined in the Acquisition Agreement and the Deed of Release (see context for relevant meaning)	1022, 1553
Clark*	(Matthew) Marcus Clark, partner – mergers and acquisitions, Allens	952
Commercial Call	Telephone call on 19 July 2013 between Hughes, Eden, Merrill Lynch, Goldman Sachs and others	910
Commercial Call Statements	Statements made by Glencore and Viterra during the Commercial Call	2165
Common Synergies	Synergies available to all market participants	4165
Competitiveness Representation	Representation to Cargill that there were other bids close to the First Final Bid	3777
Complete	Defined in the Acquisition Agreement	1022
Completion	Defined in the Acquisition Agreement	1022
Completion Date	Defined in the Acquisition Agreement	1022
Confidential Information	Defined in the Confidentiality Deed	586
Confidentiality Deed	Deed of confidentiality between Cargill, Inc and Glencore	459, 462, 585, 1022
Confidentiality Deed Representations	The alleged representations by Cargill to Glencore and Viterra that Cargill would rely solely on its own investigations and analysis and not rely on Confidential Information in evaluating a possible Joe White acquisition	4730
Confidentiality Deed Terms	Various terms contained in the Confidentiality Deed alleged by the Viterra Parties to form part of the Sale Process Disclaimers	2187
Confidentiality Obligations	The obligations of confidentiality set out in the Hughes/Cargill Agreement in clauses 5 and 6	1890
Conformity Assessment Criteria	The 4 criteria, as set out by Hibbert, outlining best practice when applying a Decision Rule	2227
Control	Defined in the Acquisition Agreement	1022
Conway*	Paul Conway, corporate vice president, Cargill, Inc; and member of Cargill leadership team	300
Co-Operative Bulk	Co-Operative Bulk Handling Pty Ltd	89
Co-Operative Bulk Agreement	The agreement between Joe White and Co-Operative Bulk for grain storage and handling services in Western Australia	89
Coopers	Coopers Brewery Ltd	50
Customer Review Spreadsheet	The spreadsheet detailing Joe White’s ability to fully meet all customer requirements prepared by Stewart	1211
Data Books	Financial data books containing historical information concerning the Joe White Business	678
Data Room	Virtual data room created for the sale of the Joe White Business	465
Data Room Documentation	Defined in the Acquisition Agreement	1022
Data Room Protocol	Protocol for access to the Data Room	650
Data Room Protocol Terms	Various terms contained in the Data Room Protocol alleged by the Viterra Parties to form part of the Sale Process Disclaimers	2198
Data Room Statements	Statements identified in the Statement of Claim, to the general effect that Joe White’s historical and forecast future operational and financial performance was as set out in the Information Memorandum, and that Joe White’s earnings platform was supported by its long-term customer contracts	3577
Decision Rule	A tool used in assessing whether or not a product or material complied with specifications	2208
Deed of Release	Deed of release relating to the Confidentiality Deed	1552
Defence	The Viterra Parties’ defence and further amended counterclaim	1850
De Gelder	Ronald de Gelder, trader, Glencore	363
Deloitte	Deloitte Financial Advisory Services LLP	367
De Samblanx*	Steven De Samblanx, head of malt operations manager Europe, Cargill Malt; and Project Hawk team member	302
Deviation Analysis	Further analysis undertaken by Ryan to ascertain the extent to which the adjustments identified in the Parameter Analysis were within or beyond 2 standard deviations of the customer’s specification	2360
Dickie	Robert Dickie, marketing manager, Joe White	1210
Discloser	Defined in the Confidentiality Deed (but also defined in the Information Memorandum and the Management Presentation Memorandum)	585 (475, 711)
Disclosure Material	Defined in the Acquisition Agreement	1022
Disputed Issues	Issues raised with Independent Experts	3908
Doderer	Dr Albert Doderer, Heineken’s principal scientist	1585
Dom Box Seller	Viterra Ltd under the Acquisition Agreement	1020
Dom Boxes	Defined in the Acquisition Agreement	1022
Due Diligence	Defined in the Acquisition Agreement	1022
Eden*	Doug Eden, president, business unit leader, malt, Cargill, Inc; and Prairie Malt Ltd board member	212
Engle*	Ryan Engle, assistant vice president, strategy & business development, Cargill, Inc; and Project Hawk team member	471
Equal to or Better Bids Representation	Representation that bids had been received equal to or higher than the First Final Bid	3777
Eurachem/International Guide	A document referred to and endorsed by Hibbert, outlining measurement uncertainty practices in the field of chemistry	2226
Eurachem/International Standards	The 4 recommendations endorsed by Hibbert in respect of measurement uncertainty as set out in the Eurachem/International Guide	2226
Evans*	Jonathon Evans, barley trader, Glencore Grain	377
Evers*	Matthew Evers, reliability excellence leader, Cargill, Inc	1611
Existing Deed	Confidentiality Deed as defined in the Deed of Release	1553
Financial and Operational Information	Information regarding Joe White’s financial and operations performance for the financial year 2010 to 2013 as disclosed in the Information Memorandum and during the Due Diligence	1851
Financial and Operational Performance Representations	Representations made about the financial and operational performance of Joe White	2826
First Confidentiality Deed Representation	Alleged representation that Cargill, Inc and Cargill Australia would rely solely on their own investigations and analysis in evaluating a possible Joe White acquisition	4730(1)
First Final Bid	Cargill’s bid for Joe White of $405 million dated 29 July 2013	976
First Further Bid Call	Phone call between Mahoney and Koenig on 2 August 2013	1004
Fitzgerald	Damian Fitzgerald, director legal (Australia and New Zealand), Viterra and Glencore Grain; secretary, Glencore Grain Holdings Australia Pty Ltd (now Glencore Agriculture Pty Ltd), Glencore Grain Pty Ltd, Viterra Ltd, Viterra Malt, Viterra Operations, former company secretary of Viterra and Joe White	114
Forsythe	Matthew Forsythe, safety, health and environment business partner, processing malt division, Viterra and Joe White	669
French*	Bruce French, witness called as malting industry expert	2748
Further Bid Calls	Collectively, the First Further Bid Call and the Second Further Bid Call	3778
Further Payment	A further payment under the Hughes/Cargill Agreement	1885
Gibberellic Acid Practice	The practice of using gibberellic acid in the production of malt despite it being prohibited by a customer, and not disclosing the fact to the customer	42
Glasenberg	Ivan Glasenberg, Glencore’s chief executive officer	766
Glencore	Glencore International AG, the fourth defendant	9
Glencore Agriculture	Glencore Agriculture BV	100
Glencore Grain	Glencore Grain Pty Ltd	97
Gordon	Robert Gordon, president for Southeast Asia and senior vice president, Viterra Ltd; managing director, Viterra Ltd; chief executive officer, Viterra Ltd; and former director, Viterra Ltd and Viterra Operations	108
HABECO	Hanoi Beer Alcohol and Beverage Joint Stock Corporation	1681
Hannon*	Andrew Hannon, country operations manager of storage and handling, Viterra Ltd	125
Hawthorne*	Peter Hawthorne, vice president, corporate strategy & development, Cargill, Inc; and Project Hawk team member	431
Hermus	Ruud Hermus, quality manager, Cargill, Inc	302
Hertrich*	Joseph Hertrich, witness called as an expert brewer	2135
Hibbert*	Professor David Brynn Hibbert, emeritus professor in analytical chemistry called as an expert on analytical chemistry	2201
Hibbert Report	Expert report produced by Hibbert, dated 3 May 2019, and relied upon by the Viterra Parties	2201
Hite	Hite Brewery Co Ltd	1676
Hughes	Gary Hughes, third third party in the proceeding; executive manager, Viterra Malt; and director and executive manager, Joe White; and former director, Viterra Ltd, Viterra Malt, Viterra Operations, Joe White	47
Hughes/Cargill Agreement	The agreement entitled “Separation and Release” between Cargill Australia and Hughes on 25 June 2014	1867
Hughes Letter	Letter sent by Eden, on behalf of Cargill Australia, to Hughes on 9 July 2014	1868
Hughes Representations	Representations alleged to have been made by Hughes prior to entry into the Acquisition Agreement	4792
Hughes/Viterra Contract	The contract of service between Viterra Ltd and Hughes effective from 1 November 2009	188
Independent Expert	Expert appointed to determine Disputed Issues	3908
Independent Expert’s Determination	Determination of Disputed Issues	3908
Information	Defined in the Confidentiality Deed	586
Information Memorandum	The document entitled “Joe White Maltings Information Presentation May 2013”	470
Information Memorandum Disclaimers	Disclaimers made by Glencore and Viterra in the Information Memorandum alleged by the Viterra Parties to form part of the Sale Process Disclaimers	2147
Information Memorandum Statements	Statements made by Glencore and Viterra in the Information Memorandum	2146
ISO Standards	Defined in the Acquisition Agreement	1034
Jewison*	Lisa Jewison, business unit controller, malt, Cargill, Inc; and Project Hawk team member	441
Joe White	Joe White Maltings Pty Ltd[6]	4
Joe White Business	The business conducted by Joe White	8
Joe White Executives’ Representations	The Hughes Representations, the Youil Representations, the Wicks Representations, the Stewart Representations and the Argent Representations collectively	4792
Jones*	Lucas Jones, production plant & barley manager, Joe White	129
Key Recommendations Memorandum	Memorandum dated 21 October 2013 from Stewart	1210
King*	Ian King, corporate finance director, business analyst, Glencore	109
Kirin	Kirin Brewery Company Ltd	1224
Klaeijsen	Bram Klaeijsen, regional director, corporate centre, Cargill	710
Klein*	Gordon Klein, 1 of the 2 loss experts called by Cargill Australia	3946
Koenig*	Emery Koenig, chief risk officer and board member, Cargill, Inc; member of the Cargill leadership team	343
Laboratory Information System	Joe White’s laboratory information and management system	255
Land Seller	Viterra Operations under the Acquisition Agreement	1020
Last Balance Sheet Date	Defined in the Acquisition Agreement	1022
Law	Defined in the Acquisition Agreement	1022
Le Binh*	Khai Le Binh, project team leader, strategy & business development, Cargill, Inc; and Project Hawk team member	472
Leave Payment	Hughes’ entitlement to payment under the Hughes/Cargill Agreement	1885
Liabilities	Defined in the Acquisition Agreement	1022
Liability	Defined in the Acquisition Agreement	1022
Lindner*	Kate Lindner, senior associate, Mallesons	616
Loss	Defined in the Confidentiality Deed and the Acquisition Agreement (see context for relevant meaning)	588, 1022
Lotte	Lotte Chilsung Beverage Co Ltd	1811
MacLennan	David MacLennan, chairman and chief executive officer, Cargill, Inc; member of the Cargill leadership team	963
Mahoney	Chris Mahoney, chief executive officer, Glencore Agriculture, director of agricultural products division, Glencore	100
Malecha	Fran Malecha, Viterra’s chief operating officer	142
Mallesons	King & Wood Mallesons	367
Malt Assets	Defined in the Acquisition Agreement	1022
Malt Blend Parameters Procedure	Procedure developed by Joe White in around 2006, updated from time to time and formed part of Viterra’s records	90, 227, 229, 249, 277
Malt Cost Reduction Transformation Project	The formalised business plan for the transformation project recorded in the Viterra presentation dated 5 August 2010 and entitled “[Australia New Zealand] Transformation Project – Malt Cost Reduction”	136
Malt Operations Update Presentation	The presentation prepared by Youil and delivered to Van Lierde on or around 22 May 2014	1722
Malt Proficiency Scheme	The malt analysis proficiency testing scheme to assess proficiency of laboratories	175
Management Presentation	Oral presentation delivered on 26 June 2013	708
Management Presentation Memorandum	Written presentation entitled “Joe White Maltings Management Presentation” delivered on 26 June 2013	711
Management Presentation Memorandum Disclaimers	Disclaimers made by Glencore and Viterra in the Management Presentation Memorandum alleged by the Viterra Parties to form part of the Sale Process Disclaimers	2186
Management Presentation Statements	Statements made by Glencore and Viterra during the Management Presentation	2168
Mann	Matthew Mann, general manager of safety, health and the environment, Viterra and Glencore Grain	942
MaPPS	Cargill’s malt plant production system	304
Material Contract	Defined in the Acquisition Agreement	1022
Mattiske*	David Mattiske, regional director, Glencore Agriculture; former managing director (Australia and New Zealand), Glencore Grain; and former director, Viterra Ltd, Viterra Malt, Viterra Operations and Joe White	97
Maw	James Maw, head of the grain trading business, Glencore; and managing director, Glencore Agriculture UK Ltd	375
McIntyre*	Laura McIntyre, customer service administrator, Joe White	74
McMeekin	Peter McMeekin, Viterra barley trader	Fn 115
Meredith*	Greg Meredith, 1 of the 2 loss experts called by Cargill Australia	3946
Merrill Lynch	Bank of America Merrill Lynch	103
Moller	Naomi Moller, technical centre chemist, Viterra Ltd (and Joe White)	160
Mostert	Ernest Mostert, chief financial officer, Glencore Agriculture; director, Glencore Grain Holdings Australia Pty Ltd, Glencore Grain, Viterra Ltd, Viterra Malt, Viterra Operations; and former director, Glencore Australia Holdings Pty Ltd and Joe White	363
Necessity Representation	Representation Cargill needed to pay extra $15 million	3777
Nestlé	Nestlé Singapore Pte Ltd	252
No Discretion Standard	Standard involving acceptance and rejection zones with no discretion	2218
Non-Disparagement Obligation	The non-disparagement obligation set out in clause 7 of the Hughes/Cargill Agreement	1895
Norman	Benjamin Norman, director of human resources Australia and New Zealand, Glencore Grain and Viterra	359
October 2013 Responses	Responses to Cargill’s queries concerning the Operational Practices	3283
O’Donahoo	Peter O’Donahoo, partner, Allens	1170
Okoroegbe	Chris Okoroegbe, senior lawyer, Cargill, Inc	1170
Operational Practices	Collectively, the Reporting Practice, the Varieties Practice, and the Gibberellic Acid Practice	43
Operations Call	Telephone call on 18 July 2013 between Hughes, Youil, De Samblanx, Merrill Lynch and Goldman Sachs	865
Operations Call Statements	Statements made by Glencore and Viterra during the Operations Call	2149
Operations Spreadsheet	Spreadsheet created by De Samblanx as part of the Due Diligence	771
Oriental Brewery	Oriental Brewery Co Ltd	79
Other Bidders Representations	Collectively, the Equal to or Better Bids Representation, the Competitiveness Representation and the Necessity Representation	3777
Page	Gregory Page, Cargill, Inc chief executive officer and board chairperson	963
Pappas	Nicholas Pappas, partner, Mallesons	369
Parameters Analysis	Analysis of Parameters Data undertaken by Ryan	2317
Parameters Data	Data extracted from the Laboratory Information System by Abbot relating to malt parameters and Certificates of Analysis produced by Joe White	2316
Phase 1	First phase of sale process	464
Phase 1 Process Letter	Letter from Merrill Lynch dated 14 May 2013 and entitled “Joe White – Phase 1 of the Proposed Transaction”	461
Phase 1 Process Letter Statements	Various statements made in the Phase 1 Process Letter alleged by the Viterra Parties to form part of the Sale Process Disclaimers	2196
Phase 2	Second phase of sale process	464
Phase 2 Process Letter	Letter from Merrill Lynch dated 14 June 2013 inviting Cargill, Inc to participate in Phase 2 of the proposed transaction	639
Phase 2 Process Letter Statements	Various statements made in the Phase 2 Process Letter alleged by the Viterra Parties to form part of the Sale Process Disclaimers	2197
Phoenix	Phoenix Beverages Limited	1231
Plus 2 Affected Result	A recorded test result that is outside specification by more than 2 standard deviations where the reported test result is within specification	2364
Potter*	Michael Potter, the loss expert called by the Viterra Parties	3946
Prazak	Miroslav Prazak, plant manager Sydney, Joe White	284
Pre-Completion Representations	Representations made by Glencore and Viterra as a result of the October 2013 Responses	3299
Pre-Execution Statements	Collectively, the Information Memorandum Statements, the Financial and Operational Information, the Management Presentation Statements, the Operations Call Statements and the Commercial Call Statements	2830
Project Hawk	Project name given by Cargill for the Acquisition	341
Pulse	Viterra’s internal intranet and information sharing platform	191
Purser*	Philippa Purser, managing director, Cargill Australia	559
Q&A Process[7]	Question and answer process established under the Data Room Protocol; defined also in the Acquisition Agreement	657, 1022
Recipient	Defined in the Confidentiality Deed	585
Records	Defined in the Acquisition Agreement	1022
Records System (known internally as TRIM)	Viterra’s total records and information management system	191
Rees	Jason Rees, director of finance (Australia and New Zealand), Viterra Ltd; director, Viterra Operations and Viterra Malt; and corporate controller (Australia and New Zealand), Viterra Ltd; former chief financial officer (Australia and New Zealand), Viterra	359
Refusal of Certain Terms	The Viterra Parties’ refusal of certain suggested amendments to drafts of the Acquisition Agreement	979, 989, 992
Render Assistance Obligation	Obligation under the Hughes/Cargill Agreement	1889
Reply	Cargill Australia’s reply to the Defence	2187
Reply Letters	The 25 October Reply Letter and the 30 October Reply Letter	1545
Reporting Practice	The practice of reporting results in Certificates of Analysis in accordance with the pencilled results to comply or substantially comply with specifications, without disclosing the process to customers	37
Representative	Defined in the Confidentiality Deed and the Acquisition Agreement (see context for relevant meaning)	588, 1022
Roelfs	Maarten Roelfs, business development, finance and trade at Glencore Grain	362
Ross	Karen Ross, director of human resources and transformation, Viterra	157
Ryan*	Liam Ryan, director of KordaMentha Forensic and a non-independent expert witness of the Cargill Parties	2311
SABECO	Saigon Alcohol Beer and Beverage Joint Stock Corporation	1681
SAB Miller	SAB Miller Plc	874
Sagaert*	Sabine Sagaert, general manager Europe, malt, Cargill, Inc	441
Sale Process Disclaimers	Disclaimers given during the sale process by reason of the Phase 1 Process Letter Statements, the Information Memorandum Disclaimers, the Confidentiality Deed Terms, the Phase 2 Process Letter Statements, the Data Room Protocol Terms and the Management Presentation Memorandum Disclaimers	2828
Sapporo	Sapporo Breweries Ltd	150
Savona	Tina Savona, legal counsel, Cargill Australia	1161
Scaife*	Jody Scaife, regional general manager Asia Pacific, Cargill Malt	1041
Second Confidentiality Deed Representation	Alleged representation that Cargill, Inc and Cargill Australia would not rely on Confidential Information in evaluating a possible Joe White acquisition	4730(2)
Second Further Bid Call	Phone call between Mahoney and Koenig on 2 August 2013	1005
Seller	Defined in the Acquisition Agreement	1022
Sellers	Viterra under the Acquisition Agreement	5, 1022
Shares	Defined in the Acquisition Agreement	1022
Share Seller	Viterra Malt	1020
Sheehy	Dr Megan Sheehy, technical service manager, Viterra Ltd and Joe White	160
Sidley	Peter Sidley, barley relationship manager, Glencore Grain	414
Sign-Out Report	Report prepared for recording test results of malt for internal purposes only	36
Statement of Claim	Cargill Australia’s fifth further amended statement of claim	1849
Stewart*	Dr Douglas Stewart, sixth third party in the proceeding; and general manager technical, malt, Viterra Ltd and Joe White	50
Stewart Representations	Representations alleged to have been made by Stewart prior to entry into the Acquisition Agreement	4792
Stuart	Mont Stuart, marketing manager, Joe White	252
Tan	Chik Liang Tan, associate, strategy & business development, Cargill Asia Pacific	1103
Teaser	The document entitled “Joe White Maltings Teaser” provided to Cargill, Inc by Merrill Lynch on 1 May 2013	457
Testi*	Julie Testi, quality manager, Joe White	92
Thai Beverages	Thai Beverage Public Company Limited	150
Thai Duyen	Thai Duyen Trading and Transpo	2522
Third Party Claim	Third party statement of claim filed by the Viterra Parties	1850
Third Party Individuals	Executives of Joe White at the time of the Acquisition against whom the Viterra Parties have issued third party claims	46
Tilleman*	Filip Tilleman, partner of Tilleman van Hoogenbemt, called as expert on Belgian law	2014
Tracking Sheet	The spreadsheet entitled “Project Hawk … Due Diligence Tracking Sheet: Questions and Issues (cannot be solved by additional questions)” used for logging Cargill’s queries during the Due Diligence	931
Transaction	Defined in the Confidentiality Deed	588
Transaction Documents	Defined in the Acquisition Agreement	1022
Turnbull	Trevor Turnbull, general manager – engineering, Joe White	789
Unadjusted Earnings	Earnings before interest, tax, depreciation and amortisation (unless stated to be earnings before interest and tax only)

Undisclosed Matters	Matters that Cargill Australia alleged were not disclosed in the Information Memorandum or during the Due Diligence	1851
Unique Synergies	Synergies available to a specific or only some market participants	4165
Van Lierde*	Frank Van Lierde, executive vice president, Cargill, Inc	300
Varieties Practice	The practice of using barley varieties other than the required barley varieties without disclosing the fact to the customer	39
Viers*	Marc Viers, enterprise risk manager (food ingredient and bio-industrial enterprise), Cargill, Inc; global commercial manager, Cargill Malt; Project Hawk team member; Prairie Malt Ltd board member; and former integration manager, Joe White	332
Vinken*	Steven Vinken, Cargill, Inc’s human resources market leader for Belgium and France	2014
Viterra	Collectively, Viterra Malt, Viterra Operations and Viterra Ltd	9
Viterra Certificate of Analysis Procedure	Certificate of Analysis procedure which formed part of Viterra’s records	199, 280
Viterra Code	Viterra Inc’s code of business conduct	58
Viterra Ltd	Viterra Ltd, the third defendant	5
Viterra Malt	Viterra Malt Pty Ltd, the first defendant	5
Viterra Operations	Viterra Operations Ltd, the second defendant	5
Viterra Parties	Collectively, Viterra Malt, Viterra Operations, Viterra Ltd and Glencore	9
Viterra Policies	The Viterra Certificate of Analysis Procedure and the Malt Blend Parameters Procedure	1851
Viterra Practices	Practices of routinely, and without informing customers, supplying: malt to customers, which was not compliant with contractual requirements and specifications; and Certificates of Analysis to customers that misstated results of analytical testing on malt such that the certificates reported incorrectly that the malt was compliant with contractual requirements and specifications	1851
Walt	Markus Walt, head of business development, Glencore; and former corporate finance team member, Glencore	112
Warranties	Defined in the Acquisition Agreement	1022
Warranty	Defined in the Acquisition Agreement	1022
Warranty Representations	Representations made and forming part of the Warranties (as defined)	3739
Wicks	Robert Wicks, fifth third party in the proceeding; and general manager – commercial, Viterra Malt	49
Wicks Representations	Representations alleged to have been made by Wicks prior to entry into the Acquisition Agreement	4792
Wilson*	Jonathan Wilson, general manager – logistics and commercial relations, Viterra Operations; and manager of barley and oilseeds, Viterra Merchandising	118
Wilson-Smith*	Joshua Wilson-Smith, legal counsel, Viterra Ltd	615
Woodburn	Kim Woodburn, general plant operations lead, grain and oilseeds supply chain Australia	744
Youil	Peter Youil, fourth third party in the proceeding; and general manager operations, malt, Viterra Ltd and Joe White	48
Youil Representations	Representations alleged to have been made by Youil prior to entry into the Acquisition Agreement	4792
Zampin	Cheryl Zampin, client human resource manager, Cargill Australia	1903

[2]There were also various defined terms in agreements and other documents referred to in these reasons that are not set out here. Further, there are a small number of defined terms that appear in some headings of the issues for determination that are not included in this table as the issues in question were ultimately not raised for adjudication.

[3]With respect to individuals, the parties provided an agreed list of persons and descriptions of their positions.

[4]If a term is used before it is defined, on the first occasion this occurs a reference to the definition is given, but not otherwise.

[5]But see also par 1880 below.

[6]But see also fn 13 below.

[7]To assist the reader, the use of acronyms has been generally avoided. However, as “Q&A” was referred to in numerous documents, it is convenient to adopt this definition.

HIS HONOUR:

IntroductionA.

A.1 A precious stone?

A popular song of the early 1990s referred to fields of barley as fields of gold. This case concerned a business producing malt from Australian barley fields. The business was acquired by a well-established malting industry participant. Based on its assessment of the value of the business and its ability to perform, it was anticipated ownership of the business would result in substantial benefits being reaped, including as part of an existing global operation. Indeed, leading up to the purchase of the business, it was referred to prospectively as the crown jewel in a string of pearls.
Very broadly, this litigation arose because the business fell short of the purchaser’s assessment of its value and capacity. It claimed it was misled in making the assessment that it did. The misleading conduct was denied by the defendants, who alleged that their conduct was not causative of any loss in any event. It has been found they were wrong on both counts.
Further, shortly before completing the sale, the defendants were invited to disclose the true state of affairs concerning the business. In response, they chose to take the risk of not providing relevant information, fully appreciating that such an approach may give rise to claims against them. In essence, these reasons address the consequences of that approach.[8]

The main transaction and the main partiesA.2

[8]For a more detailed summary, see pars 5332-5342 below.

The second third party, Joe White Maltings Pty Ltd (“Joe White”),[9] was founded in Ballarat, Victoria, in 1858. Its operations expanded over time until it became the largest maltster in the Asia-Pacific region. In 2013, Joe White’s head office was in Adelaide.
[9]Joe White subsequently became known as Cargill Malt Asia Pacific Pty Ltd.
On 4 August 2013, the plaintiff, Cargill Australia Ltd (“Cargill Australia”), agreed to purchase all the shares in Joe White and some additional assets used by Joe White for the sum of $420 million.[10] This was done pursuant to an agreement (“the Acquisition Agreement”) between 3 of the defendants, Viterra Malt Pty Ltd (“Viterra Malt”), Viterra Operations Ltd (“Viterra Operations”) and Viterra Ltd[11] (as “Sellers”), and Cargill Australia (as “Buyer”) and the first third party, Cargill, Incorporated (“Cargill, Inc”) (as “Buyer Guarantor”).
[10]All references to dollar amounts in these reasons by means of the symbol “$” are references to Australian dollars unless expressly indicated otherwise.
[11]Viterra Ltd is now known as Viterra Pty Ltd.
Cargill, Inc is the ultimate holding company of Cargill Australia. It was established in 1865. Cargill, Inc is based in Minneapolis, Minnesota. It is a global supplier of food products. As at 31 August 2012, it had approximately 142,000 employees located in 65 countries.
In this judgment, Cargill Australia, Cargill, Inc and Joe White are referred to collectively as “the Cargill Parties”. Cargill Australia and Cargill, Inc are referred to collectively as “Cargill”.[12]
[12]In some documents as referred to below, “Cargill” is used, and may have a different meaning depending on the context. Further, “Cargill” is used in these reasons where it was unclear as to whether the evidence was referring to Cargill Australia or Cargill, Inc, or both.
The Acquisition Agreement was completed on 31 October 2013 (“the Acquisition”), and Cargill Australia purchased all the issued shares in Joe White from Viterra Malt, together with assets used by Joe White from Viterra Operations and Viterra Ltd. The following day it took over control of the operations of the malt business (“the Joe White Business”).[13]
[13]For the avoidance of doubt, the use of the term “the Joe White Business” encompasses the malt business that was also referred to as “Viterra Malt” while owned by Viterra. Equally, when “Joe White” is used to describe matters related to the Joe White Business (such as Joe White executives or Joe White general manager), the use of “Joe White” encompasses “Viterra Malt” to the extent the evidence reflected both descriptions were applicable (which was almost invariably the position from late 2009 to 31 October 2013).
The defendants (collectively, “the Viterra Parties”) are related companies. Viterra Malt is wholly owned by Viterra Operations, which is wholly owned by Viterra Ltd (collectively, “Viterra” or “the Sellers”). Viterra Ltd is wholly owned by the fourth defendant, Glencore International AG (“Glencore”). Glencore acquired the “Viterra Group”, and thereby each of the Sellers and Joe White, on 17 December 2012.[14] Viterra’s core business in Australia was the logistics of the storage and handling of grain, including a trading division. Broadly, Viterra in Australia and New Zealand consisted of 4 business units: operations; agriproducts; malt, being the Joe White Business; and “New Zealand”. Each business unit had an executive manager and a financial controller.[15]
[14]To be clear, Glencore holds the shares in Viterra Ltd, which holds the shares in Viterra Operations, which holds the shares in Viterra Malt. Viterra Malt held the shares in Joe White immediately before the Acquisition.
[15]Viterra and Joe White shared the same address in Adelaide, though they operated out of separate adjacent buildings.
There are many issues for determination. Most of them stem from conduct engaged in before 1 November 2013, in relation to the manner in which the Joe White Business produced and sold malt.

The production of malt from barleyA.3

Malt is germinated grain. It is necessary to understand a little about barley and the production of malt to comprehend the nature of some of the key issues in this proceeding.
Essentially there are 3 steps to be taken in producing malt: steeping, germination and kilning.[16] Steeping involves introducing moisture to cleaned barley over the period of approximately 1 day to get the hydration up from its natural level (in Australia around 11 percent) to around 40 to 45 percent.[17] This allows the barley to germinate. Germination occurs much as it would naturally, giving rise to a biochemical transformation and allowing enzymes to develop.[18] Kilning introduces heat to stop the germination process from continuing. By this process, the malt is dried, further modification of the grain ceases and a stable product is created.[19] By the means of germination and kilning, enzymes are developed and proteins are broken down to the desired levels. These steps may involve constant adjustments according to the natural variations in each batch of barley and the prevailing conditions. During the kilning stage, moisture content is reduced to about 5 percent, resulting in the development of malt flavour and colour. The malt is then cleaned and stored.
[16]A Cargill document referred more extensively to the steps involved in the following terms: barley origination, receiving, steeping, germination, kilning, blending and shipping. With respect to receiving, this usually involved inspecting and testing the barley, including for levels of protein, moisture, foreign matter, chemical odours and fungal infections.
[17]Barley is submerged in water under aeration, air-rested, and then resubmerged.
[18]There are 3 types of modifications in this transformation, proteolytical modification (concerned with modification of proteins), cytolytic modification (concerned with the physical modification of the cell walls in the grain) and amylolytical modification (which relates to starch). Beyond referring to a model that was tendered setting out the relationship between these modifications and how customer specifications are sought to be achieved, it is unnecessary to go into further detail.
[19]Relative to its previous state; malt will deteriorate after an extended period of time. See further pars 21, 34 below.
Purchasers of malt often stipulate that malt supplied have certain characteristics, which may be rigid and mandatory, or have a level of tolerance (depending on the terms of the particular supply contract). The characteristics stipulated, usually referred to as specifications, may refer to various attributes of the malt, and may or may not include the variety or varieties of barley to be used, or whether particular additives are permitted.[20] If required to meet a customer’s specifications, the malt is blended with other batches to produce the product as ordered.[21] In order to successfully blend 2 or more batches, the batches must not be too divergent in characteristics, otherwise problems can arise subsequently in the customer’s process.
[20]This is discussed in more detail below: see pars 14-24 below.
[21]This is usually required, as it is rare that a particular batch will meet a customer’s specifications without some blending.
Barley is not homogenous, and is subject to variation from year to year and also within the same crop. Further, there are numerous varieties of barley, possessing different qualities and characteristics. For some brewers a particular barley variety or specific blend of barley varieties is important.
The approval regime for accreditation of barley as malting barley is overseen by Barley Australia. Barley Australia is an industry body, being an association of member companies. Industry accreditation of new malting varieties may take up to 2 years. Securing customer specifications for any approved new varieties may take even longer.[22] In contrast to malting barley, feed barley is generally considered less suitable for malt production, and it is usually used to feed livestock. It is ordinarily stored differently by grain traders; in bunkers on the ground covered by tarpaulins instead of the vertical silos used for malting barley. However, feed barley can, of itself, or in combination with malt grade barley, be used to produce malt.[23] Further, feed barley is cheaper than malt grade barley; how much cheaper varies from time to time, depending on market forces.
[22]Growers may choose to adopt new varieties before or after accreditation, which may affect the supply and prices of older accredited varieties.
[23]Indeed, the evidence of Douglas Stewart (see par 50 below) was that around 2.5 million tonnes of feed grade barley was exported from Australia every year to China (the biggest beer producing nation in the world) to make beer. The evidence suggested any barley was capable of producing malt as long as it was “alive”.
Furthermore, malting barley is classified into grades, from malt 1, being the highest grade, to malt 2 and malt 3. These grades are considered superior to feed grade barley.[24] Each of the malt 1, 2 and 3 grades of barley are approved as being of a quality appropriate for producing malt. When compared with malt 1, producing malt using malt 2 barley usually results in greater processing time and loss of end volume.[25]
[24]Grain Trade Australia publishes a set of standards that are used as guidelines to determine how a particular load of barley is graded. Grain traders have developed their own classifications and names, which are in addition to the Grain Trade Australia classifications and do not replace them.
[25]As a matter of practice, Viterra generally graded barley as malt 1 or malt 2, and if the barley did not achieve those standards it was segregated as feed barley.
There are at least 20 varieties of barley grown in Australia,[26] and more elsewhere. With very limited exceptions,[27] barley varieties are specific to location and varieties grown differ between geographical locations. Australian barley varieties are unique to Australia. Common varieties in Australia in 2013 included Gairdner, Buloke and Commander. Further varieties are developed on an ongoing basis, with the varieties grown determined by individual growers. The differing characteristics of barley varieties include growing strengths, harvest volumes, grain size, germination vigour, and protein and enzyme levels. Each barley variety has unique attributes after malting. Further, most barley varieties accredited for malting are highly fermentable.
[26]There was some evidence that, in 2013, there were around a dozen varieties. Some barley varieties had different names depending on which State they were grown in, even though they were the same variety.
[27]These related to Europe and North America and were not relevant.
This is particularly important for overseas brewers, who generally prefer malt with high enzyme levels and fermentability, because they use rice or maize in the brewing process (both of which have their own starch that needs to be broken down into sugars for fermenting). In contrast, domestic brewers prefer malt from barley with low enzyme levels and fermentability (because they use cane sugar in the brewing process). In any event, the barley variety or blends of barley varieties chosen by a brewer are generally considered important to the brewer.[28] Further, some brewers select barley varieties for reasons not always obvious to the malt supplier, including flavour. That said, there are some brewers who place a higher value on specification compliance than on the precise barley variety used.
[28]This was 1 of a number of propositions agreed to by the industry experts called to give evidence. Most brewers “test brew” barley varieties prior to adding to a specification for a malt supply contract.
Parcels of barley are graded according to quality. Grading is undertaken at the time a grower delivers grain. Some barley may be accorded a lower grade while still having desirable performance characteristics. Lower grades attract lower prices. Further, not only will higher grades command higher prices, but premium varieties may also attract higher prices.
The terms “off-grade” and “off-spec” are commonly used in the barley industry. Any malt that is not malt 1 is generally referred to as off-grade. The term off-spec may include off-grade barley and the terms are sometimes used interchangeably.[29] However, the terms are not synonyms. Barley may be off-grade but still within specification. Further, barley may be malt 1 (that is, not off-grade), but be out of specification.[30] The terms off-grade or off-spec are not used to refer to feed barley.
[29]In the grain trade, it seems they are often used interchangeably. According to 1 witness, in grain trading both terms are used to describe barley that is not malt 1. But this use of the terms did not reflect how those terms were used by other witnesses.
[30]See further par 23 below.
As for malt, it is an organic substance that is in a constant state of flux. Testing the various characteristics of the same malt at different times, or even different samples of the same malt at the same time and within the same batch, can produce different test results. When tested, each characteristic or substance the subject of such testing is referred to as an analyte.[31]
[31]Throughout the trial the words analyte and parameter were used interchangeably.
Purchasers usually require the specifications of the malt supplied to be reported by the producer. In identifying the specifications they require to be met, customers may stipulate a specific figure for a specific result, or may impose their requirements by means of figures which identify the range within which the result must be achieved.
The specifications identified by any given customer may be numerous. Specifications may include both analytical parameters and processing details. They may include the type of barley to be used or even the crop year of the barley. However, the evidence suggested that usually a customer’s specifications do not include the particular grade of barley to be used.[32] In other words, ordinarily the obligation on Joe White was to meet the specifications regardless of whether malt 1 grade barley was used or some lesser grade. That said, the lower the grade of barley used in producing the malt, the more difficult it may be to achieve the required specifications. Equally, the mere fact that malt 1 barley is used does not ensure the particular specifications in question may be met.
[32]But see par 156 below, and the reference to Joe White inaccurately reporting that malt-grade barley was being used.

The specifications of the malt are recorded on a certificate (“Certificate of Analysis”), which is provided to the customer around the time the malt is supplied. Joe White’s customers typically identified specifications for around 15 to 25 parameters.[33] In addition to some customers having specifications which identified a specific numerical result to be met and others including a range,[34] others still would have schemes for tolerances and compensation for non-compliance with some parameters. That said, many of Joe White’s customers took the more strict approach.[35] Further, customers often specified the variety to be used, or more typically several acceptable varieties. Some Joe White customers analysed malt upon its receipt; many did not.[36]

The difference between theoretical blend analysis and actual analysisB.

[33]The parameters that Joe White’s customers overall required to be reported included the following: moisture; colour; protein (both soluble and total protein); extract percentage (being the percentage of fermentable sugars that are available in the malt); viscosity; diastatic power (being the enzymatic power of the malt reflecting its ability to break down starches into simpler fermentable sugars); wort betaglucan (being enzymes available to break down the cell walls); friability; speed of filtration; fermentability; alpha and beta amylase; clarity; Carlsberg plate (involving using a fluorescent light to review a cross-section of the malt to determine the extent to which enzymes have broken down); free amino nitrogen; assortment of size; dimethyl sulphide; broken and burnt kernels percentage; dust percentage; foreign seeds; hectolitre weight; insects; mould; acrospire length (being the root of the barley, which germinates and increases in length during the malting process); nitrosodimethylamine (which is a carcinogen); pH; saccharification time (being the time it took starch to be converted to simple sugars); and betaglucanase.

[34]Thereby incorporating tolerance levels, rather than requiring a single specified result.

[35]The Cargill Parties tendered 178 customer contracts for export customers for the period from 1 January 2010 to 31 October 2013. Only Thai Beverages made provision in some of its contracts permitting tolerances for specifications.

[36]This is discussed in more detail at pars 150-153 below.

There are different means of testing and reporting the malt delivered. Much was made in this case of the contrast between 2 different approaches adopted.
Cargill, Inc and its subsidiaries often, but not always,[37] used a principal method of analysis known as theoretical blend. It was the results from this analysis that were generally reported to Cargill, Inc’s customers. Up to 31 October 2013, Joe White tested for the actual results of the malt specifications, as well as using the theoretical blend method.
[37]See par 313 below.
To elaborate, the theoretical blend approach involves analysis of the constituent batches used in the blending of different batches of malt. As each separate batch is produced, it is sampled when transferred to a silo. The representative sample is fully analysed for all analytical specifications.[38] When malt is delivered to a customer from 2 or more batches, the weighted average for the analytical parameters is calculated.
[38]But see par 261 below with respect to Joe White’s process before 1 November 2013.
By way of simple example, if a delivery consists of a blend of 2 batches of malt in equal amounts, the first with a moisture content of 4.1 and the second with a moisture content of 4.5, the weighted average of the moisture would be 4.3; this would then be reported in the Certificate of Analysis as the moisture content. In other words, what is reported in the Certificate of Analysis is the result of a mathematical calculation from the previous separate analyses, rather than the actual result from a test of the batch as delivered.
A theoretical blend may include not only the blend of individual production batches, but also the blending of malt that has already been blended, effectively producing a blend upon a blend.
Further, as part of Cargill’s theoretical blend process, adjustments could be made to reported results in accordance with any deviation between a customer’s laboratory and Cargill’s laboratory,[39] but “only in transparency with the customer”. If this arrangement was agreed to, then it was a requirement that such adjustments for the relevant parameter or parameters should take place for all theoretical blends made for that particular customer.
[39]In other words, if the customer indicated it was reporting a different result to Cargill, Cargill might then agree with the customer to adjust its recording of results to accord with the customer’s readings.
If there was a single component of a blend to be delivered to a customer where the analytical parameter was unknown, then it could not be used as part of the theoretical blend process.[40]
[40]See further pars 302-309 below.
Cargill considered the theoretical blend approach to be satisfactory. A contrary view was expressed by a witness (who was a former Joe White employee) who described it as a very inaccurate approach.[41] Expert evidence was led on the issue of its efficacy.
[41]But also see par 1587 below.
Broadly speaking, the alternative approach to theoretical blend is to test the malt actually produced (sometimes referred to as “wet chemistry”) to ascertain the specifications after production, but before delivery to the customer. In adopting this approach, a sample or samples are taken from the malt, analysed in a laboratory promptly and then the results of those tests are available to be recorded on a Certificate of Analysis.[42] This approach is not mutually exclusive of the theoretical blend approach.[43] On the contrary, in seeking to arrive at the correct specifications, a theoretical blend calculation may precede any actual analysis after production.[44]
[42]Joe White had laboratories at each of its plants, except Devonport in Tasmania and Cavan in South Australia. In addition, Joe White had a central laboratory in Adelaide, which was also used for research and development as well as more complicated testing. For a more detailed discussion of the testing process, see pars 257-264 below.
[43]A hybrid of the 2 approaches may be used.
[44]See further fn 710 below.
This method is also not without difficulty. The analysis involved testing the malt itself, rather than seeking to identify the specifications based on a mathematical calculation from earlier batches. Therefore it would seem more likely to produce results that would reflect a truer position of the characteristic as represented by the analyte when compared to the results ascertained from the theoretical blend analysis.[45] However, there could be real issues about the analyte’s composition when compared with the rest of the batch.[46] Results could differ, depending on the parameter being tested and from where in the malt a sample was taken. Further, taking multiple representative samples did not eradicate the inherent uncertainty in this method as the results of samples may vary.[47] Furthermore, the results may not be static, in the sense that the qualities of the malt could vary with time. Moreover, some parameters were able to be tested with more certainty than others. Naturally, the aim of a reliable testing regime was to establish processes that enabled repeatability and reproducibility of tests. In other words, enabling the same test to be undertaken numerous times, by the same or a different laboratory, and to produce the same result each time.
[45]This observation does not take into account the various levels of reliability in the testing procedures and equipment used at the plants and the laboratories.
[46]Stewart gave evidence that a sample of 200 grams, representing a handful, was used for batches as large as 300 tonnes (which would fill 17 shipping containers).
[47]Stewart gave evidence of the use of an “auto-sampler” taking small samples from a batch or a shipment on a regular basis. He suggested that this resulted in a combined sample being very representative. However, there remains a level of uncertainty, which Stewart and other witnesses acknowledged.
The Viterra Parties’ position was that the wet chemistry approach was far superior to the theoretical blend approach. There was evidence that supported this. However, there was also evidence that the theoretical blend approach was better, and that this could be established statistically.[48] For the purpose of determining the issues in this case, it is not necessary to make a finding in this regard.

The key allegationsC. and the remaining parties to the proceeding

[48]See par 1139 below.

In this case, the impugned conduct included Joe White’s manner of reporting the results of analytical testing in Certificates of Analysis provided to its customers. This was done by physically altering the printed results of the analysis by hand on a sign-out report (“Sign-Out Report”);[49] a practice known at Joe White, and in the industry more generally, as “pencilling”. If pencilling had occurred with respect to a particular batch of malt, the results recorded in the Certificates of Analysis were the pencilled “results”, rather than the original test results as recorded on the printed Sign-Out Report.
[49]These were not provided to Joe White’s customers.
By this conduct, generally speaking, Joe White represented that malt was being supplied in accordance, or substantially in accordance, with all required specifications (“the Reporting Practice”).[50] The nature and extent of and the reasons underlying this conduct are matters for determination.
[50]Usually Joe White’s customers set out the required specifications in their contracts, but sometimes they would also be identified in emails or as a result of discussions. See further par 257 below.
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.
Further, with respect to some customers who specified that particular varieties of barley were required to be used in producing the malt, on occasions Joe White represented the required barley varieties had been used when they had not (“the Varieties Practice”). The fact that the Varieties Practice was engaged in from time to time up to 31 October 2013 was not in controversy. Broadly, the issues between the parties were the nature and extent of such conduct; and whether the evidence of such conduct gave rise to misleading or deceptive conduct in the sale of Joe White.
In addition, some of Joe White’s customers expressly prohibited the use of gibberellic acid in the production of the malt to be supplied to them. Gibberellic acid is a naturally occurring hormone found in barley. Additional gibberellic acid speeds up the process of germination of malt. Its use is common in the Australian malting industry, and it is routinely used either when approved by a customer or when a supply contract is silent on its use. The addition of exogenous gibberellic acid is relatively inexpensive and may reduce total germination time by as much as a day, thereby reducing production and storage costs. Its common use was well-known by Cargill long before it started considering acquiring Joe White.
Some brewers prohibit exogenous gibberellic acid in order to be able to market their beer as a natural product. For example, some beers are marketed as being made only with malt, yeast, hops and water with no additives.[51] With respect to Joe White, there was uncontroverted evidence that a number of its customers usually had supply contracts which provided for malt not to include exogenous gibberellic acid.[52]
[51]For example, in Germany, longstanding laws regulating such beer are referred to as Reinheitsgebot, which translates to “purity order”.
[52]These customers were Asahi, Asia Pacific Breweries (Heineken), Kirin, SAB Miller and Sapporo: see par 150 below. There were disputed allegations with respect to San Miguel and the Viterra Parties also made submissions with respect to Sapporo despite the uncontroverted evidence: see pars 272, 281-282, 888, 1215, 1224, 1308, 1564, 1689 below.
On occasion, contrary to this contractual obligation or instruction, Joe White used gibberellic acid as part of the germination process, to accelerate the malt production time or to assist in purporting to meet specifications, and failed to disclose that fact (“the Gibberellic Acid Practice”).
The Reporting Practice, the Varieties Practice and the Gibberellic Acid Practice, and related conduct, are referred to collectively as “the Operational Practices”.[53]
[53]See also par 1852 below.
Essentially, Cargill Australia claims that if it had known of the existence of the Operational Practices, it would not have entered into the Acquisition Agreement. Further, Cargill Australia claims that when, belatedly in mid October 2013, there was some disclosure of the Operational Practices, if it had learnt of the extent to which Joe White engaged in the Operational Practices, it would have terminated the Acquisition Agreement and would not have completed the Acquisition. Alternatively, claims are made for breach of Warranties[54] contained in the Acquisition Agreement, and by way of deceit. There are some other not insignificant claims.
[54]See the definition in par 1022 below.
The Viterra Parties, being represented by the same counsel and solicitors, took a united approach to their defence. They did so notwithstanding their different, or potentially different, positions with respect to some of the key events.[55] Broadly speaking, for much of the duration of the proceeding, both before and during the trial, the Viterra Parties did not admit the Operational Practices (despite much of them being documented, including in formal policies and practices). Further, despite extensive evidence referred to during openings and the early stages of the trial, the Viterra Parties expressly refused to concede the Operational Practices had occurred before the Acquisition.[56] Belatedly, the Viterra Parties amended their defence to make certain limited admissions.[57]
[55]This matter was raised with the Viterra Parties’ senior counsel, who informed the court this approach had been taken advisedly. As each of the Sellers were wholly owned by the ultimate holding company, Glencore, the court permitted the Viterra Parties to proceed on this basis.
[56]During the course of the trial, on an interlocutory application, 1 of the Viterra Parties’ senior counsel conceded the Operational Practices had been engaged in prior to the Acquisition Agreement on a “not insignificant” basis: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 12) [2018] VSC 454, [16]. I observed at the time that the adoption of this position on the evidence was quite properly taken: ibid. For completeness, the precise position adopted was: “The core which is common ground at this stage is that the [Operational Practices] were occurring to a not insignificant extent”. However, lead senior counsel for the Viterra Parties soon after stated that if such a statement by his fellow senior counsel amounted to a concession, it was withdrawn: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 15) [2018] VSC 523, fn 7. After the concession was withdrawn, the following exchange took place with lead senior counsel for the Viterra Parties: “You will recall my comments yesterday about narrowing the issues and having the real issues to be determined. Some of the cross-examination by you and your other senior counsel … has proceeded on the basis that there were Viterra Practices (as to which see par 1851 below). So I want to emphasise the obligations - and I say this with the greatest of respect of course - under the Civil Procedure Act requiring counsel and solicitors to only put before the court the real issues. I understand the extent to which [the Operational Practices were engaged in] is very, very much a live issue. But the existence of, based on the evidence I have heard, I am not going to say anything absolute of course, my mind is still open, but ---”. Mr Myers: “Of course, your Honour. If I may say this. I hear what your Honour says. I don’t want to debate it. I put it as exactly and carefully as I was constrained to put it and have done so …”. After I referred to the documents that were already in evidence, I enquired as to the extent to which the concession was withdrawn, and was told in response that it was “withdrawn wholly” on the basis that: “That’s my instruction”. However, see pars 1854, 3425 below.
[57]See par 1854 below.
Further, the Viterra Parties claimed, perhaps somewhat paradoxically, that even if the Operational Practices occurred prior to the Acquisition, Cargill Australia and Cargill, Inc were on notice of their existence. Furthermore, they alleged that any such conduct was the conduct of Joe White and its executives, but not of the Viterra Parties. Consistent with this approach, the Viterra Parties issued third party claims against a number of persons who were executives of Joe White at the time of the Acquisition (“the Third Party Individuals”). The Viterra Parties sought to be indemnified by the Third Party Individuals in the event they were held to be liable to Cargill Australia.
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.[58] 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.[59]
[58]For example, on 14 May 2010 Hughes was sent an email along with other members of Viterra’s Australia and New Zealand executive attaching the April 2010 monthly management report for Australia and New Zealand. That email sent by Viterra’s corporate controller invited the recipients to consider and review the report in preparation “for the Executive meeting” the following week. See further par 52 below.
[59]For further details concerning Hughes, see pars 1870-1878 below.

The fourth third party, Peter Youil (“Youil”), was an employee of Joe White at the time of the trial.[60] Youil was the strategic project manager, a position he had held since October 2016. Youil had been an employee of Joe White for over 3 decades, having commenced employment at Joe White in 1988. In 2013, Youil was the general manager operations – malt at Joe White and reported directly to Hughes.
[60]This was the position at the time the trial concluded. There was no evidence as to what has occurred after the further sale of Joe White in more recent times: see par 1845 below.
The fifth third party, Robert Wicks (“Wicks”), was also a long-term employee. He commenced work at Joe White in 1983. In 2009, Wicks was appointed general manager, commercial, for Viterra Malt. In 2013, Wicks undertook Joe White’s procurement of barley, in consultation with Hughes, to whom he reported. He was also in charge of customer sales. Wicks remained employed as the general manager, commercial, at Joe White until late January 2016.
The sixth third party, Douglas Stewart (“Stewart”), is a biochemist who has worked in the malting industry since January 2000 and reported to Hughes from that time.[61] As a result of acquisitions of Joe White in 2002 and 2003, Stewart then worked for Joe White. In around March 2010, he was appointed by Viterra Ltd as general manager technical – malt.[62] In that role, Stewart was responsible for the quality of malt produced by Joe White.[63] Although he dealt with customers directly, he did not deal with commercial matters. Stewart also reported to Hughes. Stewart remained with Joe White until September 2014. At the time he gave his evidence he was employed by Coopers Brewery Ltd (“Coopers”). Amongst other industry positions, at this time Stewart was chairperson of the Malting and Brewing Industry Barley Technical Committee, which is a subcommittee of the board of Barley Australia.
[61]Stewart obtained a PhD in bio-chemistry from the University of Sydney, having already majored in food and environmental science as part of a bachelor of agriculture degree. Stewart has also engaged in post-doctoral research, including regarding the effect of malt quality on brewing performance at Michigan State University and then at the University of Adelaide. He gave evidence that he has expertise to offer others in the barley industry, and that he holds himself out as a technical expert in fields associated with the connection between barley and malt.
[62]In this capacity, Stewart was the person most concerned with the execution of procedures relating to Certificates of Analysis that were issued by Joe White up to 31 October 2013.
[63]Stewart’s primary responsibility was described in his Viterra position description as being: thorough input into the sale process; barley acquisition; every step of the malt manufacturing process and customer relationship management; and overall responsibility to ensure that the quality of malt met the expectations of customers.
The seventh third party, Scott Argent (“Argent”), at the time of trial was the financial controller of Joe White.[64] Argent commenced employment with Joe White in February 2003 as an accountant. In February 2012, Argent was appointed to the position of controller, processing, for Joe White and Viterra’s New Zealand feed business. He reported directly to the finance director of Viterra for Australia and New Zealand (who told Argent the parameters in which he needed to operate), as well as to Hughes.[65]
[64]See fn 60 above.
[65]This was the substance of David Mattiske’s evidence (see par 97 below), but also see fn 4387 below.
Evidence was led by the Viterra Parties that each of these executives’ duties were limited to the functions related to Joe White, and that they had no other function within the business of Viterra or Glencore.[66] However, there were many aspects of the Joe White Business that were run or assisted by Viterra. In addition to all persons involved in conducting the Joe White Business being employees of Viterra,[67] in Viterra’s desire to be different and achieve synergies some things were done at a group level. These included use of the same computer and information systems, and the same legal and human relations departments. Further, Viterra owned some land, intellectual property and certain tangible assets used by the Joe White Business. Furthermore, Hughes was on the Australia and New Zealand executive committee and attended regular meetings in that capacity. Although he resigned from his directorships of Viterra on 17 December 2012, he continued on as a member of this executive committee until completion of the Acquisition.[68] Moreover, he was the director of a company in which Viterra was engaged with Cargill in a joint venture in Canada.[69]
[66]This was the position generally, but, as set out below (see esp par 2655), there were some notable exceptions, particularly in relation to the sale of the Joe White Business.
[67]The evidence suggested they were all employees of Viterra Ltd: see fn 71 below.
[68]Mattiske gave evidence that towards the completion (no date was given), Hughes only attended the meetings to deal with the malt division and the safety section: see further par 359 below.
[69]See further par 345 below.
The Viterra Parties claimed that the Third Party Individuals made certain representations concerning the accuracy of information and certain Warranties provided to Cargill Australia. The Viterra Parties sought to “pass through” any liability to which they might be exposed by reason of the existence of the Operational Practices. The Viterra Parties further alleged that the Third Party Individuals have not acted in the best interest of Viterra or have not acted ethically, contrary to their contracts of service with Viterra Ltd.
With respect to the “pass through” approach, the Viterra Parties contended that Glencore acquired Viterra with no intention of retaining Joe White, a subsidiary that it necessarily acquired as part of a larger transaction. It was alleged that Joe White was “passed” to Cargill Australia prior to Glencore having any real involvement in, or understanding of, the business conducted by Joe White. Broadly, the Viterra Parties, therefore, sought to pass through any liability for a number of the claims made by Cargill Australia against them to the Third Party Individuals. The Viterra Parties were substantially unsuccessful in this aspect of the case.

Overview of the key parties’ stated approach to business conductD.

CargillD.1

Numerous issues in this case concerned allegations and counter-allegations of unethical conduct. Further, extensive evidence was given about the manner in which business was conducted in the malting industry, and why certain approaches were or were not adopted. Accordingly, it is necessary to identify the codes of conduct that were said to underlie the approaches to certain operations and decisions.
Cargill, Inc had a code of conduct (“the Cargill Code”) which was provided to every Cargill employee. The Cargill Code contained what were referred to as “Cargill’s Guiding Principles”, which were as follows:
1        We obey the law.
2        We conduct our business with integrity.
3        We keep accurate and honest records.
4        We honour our business obligations.
5        We treat people with dignity and respect.
6        We protect Cargill’s information, assets and interests.
7        We are committed to being a responsible global citizen.
In a 30 page document, each of these 7 principles was further explained, and was the subject of examples as to how they ought to be applied. With respect to the third principle, it was stated that all business records Cargill, Inc created, in whatever form, were required to reflect the true nature of the transactions and events in question. In that regard, the following was stated:
Never deliberately falsify a record or try to disguise what really happened and avoid exaggeration, colourful language and legal conclusions in your communications.
A number of witnesses called by the Cargill Parties gave evidence about the Cargill Code. The evidence was to the effect that it was something that was “drilled into” all employees and had to be strictly adhered to. The Cargill Code was applied without flexibility. Relevantly, the applicability of the Cargill Code meant that Cargill, Inc would not acquire a business unless it could conduct the business successfully in a manner consistent with the Cargill Code. Evidence was given to the effect that this position would prevail no matter how strategically advantageous the proposed purchase might be. Naturally, such a position did not require any business the subject of a proposed purchase to comply with the Cargill Code before it was purchased. Rather, it would need to be able to be conducted profitably in such a manner after purchase if it were to be capable of efficaciously being incorporated into Cargill, Inc’s global enterprise.

ViterraD.2

Viterra Inc, the parent company of Viterra Ltd up until December 2012, also had a code of business conduct (“the Viterra Code”), which was in place from at least 2008. The Viterra Code applied to Viterra and its subsidiaries, including sometime after to Joe White up until the Acquisition.
The Viterra Code, as issued on 2 September 2008, and revised on 22 September 2010[70] and again in or around November 2011, required all subsidiaries to conduct their business with integrity in accordance with high ethical standards and in compliance with all applicable laws, rules and regulations. To this end, the Viterra Code provided that employees were to strive to provide a high level of customer-oriented service, including maintaining superior standards of honesty, fairness and integrity in business relationships. Further, the Viterra Code required fostering high standards of ethical conduct among employees, including rejecting any improper or illegal business practices. Furthermore, employees were encouraged to speak out when they observed unethical behaviour or activity.
[70]On 9 July 2010, all Australian and New Zealand Viterra employees were sent an email introducing a “new Global Code of Conduct” which was said to be updated and “now includes all Viterra employees”. The email’s attachments were entitled “Global Code of Business Conduct – June 2010” and “Disclosure Policy – June 2010 FINAL”. An email sent to all staff in November 2011 confirmed the Viterra Code had been updated again, and continued to form part of the mandatory online training. It further stated that an online version of the annual certification form had been created and would be automatically assigned to all new employees. In addition, existing employees were required to complete the form by 15 January 2012, except for operations employees who had until February 2012 “due to Harvest constraints”.
The Viterra Code addressed the provision of products and services. It required all employees to be accurate and truthful in all dealings, including accurately representing the quality, features and availability of Viterra’s products and services.
With respect to books and records, the Viterra Code required that no director or employee create, or condone the creation of, a false record. Employees were expected to record and report financial and operating information “fully, accurately and honestly”. In that regard, it was stated:
That means no relevant information should be omitted or concealed, and no secret or unrecorded funds or assets should be created for any purpose. Making false or fictitious entries in Viterra Inc’s books or records is prohibited.
A form was annexed to, and formed part of, the Viterra Code. All new employees were required to complete this form at the time their employment commenced. Further, the form was required to be completed annually by, amongst others, all Joe White employees during their performance review.[71]
[71]In these reasons, a reference to “Joe White employees” is a reference to Viterra employees up to 31 October 2013 who were employees specifically engaged in the Joe White Business. Although the evidence was not entirely clear, it appeared all such employees were, in fact, Viterra Ltd employees from around September 2009 until 31 October 2013 and Cargill Australia employees thereafter (until more recently). Cargill was informed by the Viterra Parties on 9 July 2013 that all staff within Joe White were employed by Viterra Ltd, and that had been the position since July 2009.
The form required each employee to state that she or he had read and understood the Viterra Code. In addition, a Joe White employee was required to acknowledge:
I do not know of any unreported violations or possible violations of the [Viterra] Code. I agree to abide by the [Viterra] Code in my dealings with or on behalf of Viterra, and agree to disclose any violations or possible violations of the [Viterra] Code as soon as I become aware of them.
The introduction of this regime to Joe White’s employees gave rise to resistance in light of the Operational Practices. In short, some disquiet was expressed about the tension between what was stated in the form and the manner in which Joe White was conducting its business.[72] Despite this, the practice of requiring the form to be signed was implemented on an ongoing basis.[73]

GlencoreD.3

[72]See further par 156 below.

[73]As late as 28 May 2013, all employees were emailed by Viterra’s legal department, stipulating that the Viterra Code form was required to be signed by each of them by 28 June 2013. The email expressly noted each employee was required to acknowledge that she or he had no knowledge of any unreported violations or suspected violations of the Viterra Code. The email was sent by Damian Fitzgerald as “Director Legal”: see par 114 below. This email followed immediately after the Viterra Code had been reissued on 27 May 2013.

Glencore had its own ethical code of conduct. The document containing it was tendered, but it was otherwise not the subject of evidence.

Joe White before September 2009E.

Operations and reportingE.1

In order to conduct the Joe White Business of producing malt, Joe White was required to engage in various steps. These included acquiring different varieties and grades of barley, segregating and storing barley, operating plants that could perform the malting process, blending batches of malt, laboratory testing samples of barley and malt at numerous stages during the process, and then delivering malt to its customers.
To perform the testing and technical aspects of the Joe White Business, a chief chemist, a technical centre chemist, a research and development chemist, a quality assurance and business improvement manager and a customer services administrator were employed. Each of these roles was performed under the supervision and coordination of Stewart. In addition, Hughes, Wicks and Youil had scientific training and experience in the technical production aspects of the Joe White Business.
In Australia, barley crops are usually planted in May or June, and harvested around November or December. Joe White’s production operated on the basis of “harvest years” for the 12 months from April. In the northern hemisphere, barley is generally harvested in August. European suppliers may compete with Australia, and may affect the timing of Australian supply contracts, as well as pricing. Accordingly, Australian malt supply contracts to international customers are often struck in around August.[74] Ordinarily, barley procurement contracts would then follow.
[74]Contracts to supply malt were usually for a year or longer. Ordinarily, they would provide for a total volume of malt which would be shipped over the duration of the contract.
Malting barley is stored in silos or stacks for up to 15 months. As time passes, its vigour peaks then reduces. Grain from each new harvest was delivered to Joe White around March each year, and then was supplemented as the barley was used. If Joe White was required to use external storage facilities,[75] the barley was delivered to its plants as required. Naturally, in these circumstances operating costs were increased.
[75]Grain storage facilities are predominantly owned by large grain trading companies, including Glencore (and formerly Viterra).
After malt was produced, it could also be stored awaiting blending. Malt is usable for around 2 years, but Joe White would only store malt for shorter periods of time.
Historically, Joe White’s storage facilities were generally adequate for both barley and malt at most of its plant sites. However, some sites did not have substantial storage. Sydney, which was constructed in 2012, and Cavan operated on a just-in-time production basis because of this. Further, Port Adelaide’s malt storage became strained at times because the plant did not have good process control, which resulted in a need for greater segregation of batches.
In a poor harvest year, when there were lower volumes of malt 1 barley, storage providers tended to open segregations for malt 2 barley, and, more rarely, malt 3 barley, which was also referred to as “malt industrial” barley. These inferior grades were “discreetly” captured into the barley production process without being relegated into feed.
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.[76]
[76]Stewart gave evidence that he was troubled by this approach after spending years in academic research. He said he came to learn from working with others that “this was how it worked in the industry”. (This evidence was admitted on the limited basis that it reflected Stewart’s state of mind, pursuant to s 136 of the Evidence Act 2008 (Vic).)
Laura McIntyre (“McIntyre”), from the technical department of Joe White,[77] 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. Her evidence was that actual results of the analysis of both the blended and the packed malt frequently differed from customers’ specifications.
[77]McIntyre commenced working at Joe White in 2005, when she was 23 years old. She had completed high school, but had no tertiary qualifications when first employed at Joe White. She obtained a diploma of business with Technical and Further Education in South Australia in 2011, but never obtained any qualifications as a maltster. Her employment with Joe White ceased on 30 June 2018. She was employed in the technical department as a laboratory information management system administrator. See further pars 255-260 below.
As the person generally responsible for the preparation of Certificates of Analysis, McIntyre changed results for most Certificates of Analysis as almost every Sign-Out Report was the subject of amendment. The Sign-Out Report recorded the original result and the changes, but was for internal use only and was not shown to customers.[78]
[78]For further details on Sign-Out Reports, see par 2248(1) below.

[4855]For the purposes of this annexure D.

Facts drawn from the Parameters Analysis page 38347_H

Item	Fact	Methodology/calculation	Transcript reference/Source
1.	Of the 4,359 Certificates of Analysis[4856] included in the Parameters Data, 98.88% of those Certificates of Analysis (or 4,310) had one or more parameters the subject of an Adjustment (ie the Recorded Analytical Test Result and Reported Analytical Result did not match).	This is set out in the summary page of the Parameters Analysis.	Page 38347_H, tab “Summary”, cells B9 and C9
2.	The 98.88% (or 4,310) Certificates of Analysis which had one or more parameters the subject of an Adjustment equate to 1,347,372 tonnes or 99.16% of the total tonnage for the 4,359 orders.	This is set out in the summary page of the Parameters Analysis.	Page 38347_H, tab “Summary”, cells D9 and E9
3.	Of the 4,359 Certificates of Analysis included in the Parameters Data, 88.05% of those Certificates of Analysis (or 3,838 orders) had one or more parameter results Reported that was the subject of an Adjustment that brought a Recorded Analytical Test Result that was outside Specification to a Reported Analytical Result that was within Specification.	This is set out in the summary page of the Parameters Analysis.	Page 38347_H, tab “Summary”, cells B16 and C16

[4856]All references to “Certificates of Analysis” in Items 1–4 in this table are a reference to customer order data appearing in the “Reported” column (column J) of the “Data” sheet in page 38347_H, which Ryan was instructed, pursuant to item J of the table on page 2 of the letter of instruction dated 26 September 2018 (page 38303_0001), records the result for each parameter reported to the customer in the Certificate of Analysis.

4.	The 88.05% of those Certificates of Analysis (or 3,838 orders) which had one or more parameter result Reported that was the subject of an Adjustment to bring a Recorded Analytical Test Result that was outside Specification to a Reported Analytical Result that was within Specification equate to 1,210,608 tonnes or 89.10% of the total tonnes for the 4,359 orders.	This is set out in the summary page of the Parameters Analysis.	Page 38347_H, tab “Summary”, cells D16 and E16
5.	87.2% of all individual Recorded Analytical Test Results contained in the Parameters Data are recorded as being within Specification or otherwise had a blank entry in the Recorded Analytical Test Result column (Column I).	Page 38347_H (“Data” Sheet) A. Total Recorded Analytical Test Results: Highlight all of the data in column U by clicking on the top of the column. The total number of Recorded Analytical Test Results is 87,351, being the “Count” value less 1 to account for the heading.	T6626.6-29
B. Number of Recorded Analytical Test Results within Specification: Apply the filter to column U to show only the rows which have a “0” in that column. Highlight all of the data in the column by clicking on the top of the column. The number of Recorded Analytical Test Results that are within Specification is 76,202, being the “Count” value less 1 to account for the heading.
C. Number of Recorded Analytical Test Results with a blank result in the Parameters Data: Highlight all of the data in column I and apply the filter to select only “blanks”. This will show only those rows which are blank for Recorded data, that is for which no Recorded result was extracted. The number of Recorded Analytical Test Results that are blank are 6,716. Ryan’s analysis allocated those a “0” in column U.[4857]
Percentage of Recorded Analytical Test Results within Specification: (B/A)100 = 87.2%*
Percentage of Recorded Analytical Test Results within Specification (not counting blanks): ((B – C)/A)100 = 79.6%.*
6.	12.6% of all individual Recorded Analytical Test Results contained in the Parameters Data are recorded as being outside Specification and being the subject of Adjustment such that the Reported Analytical Result is within Specification.	Page 38347_H (“Data” Sheet) A. Total Recorded Analytical Test Results: Highlight all of the data in column W by clicking on the top of the column. The total number of Recorded Analytical Test Results is 87,351, being the “Count” value less 1 to account for the heading.	T6627:1-18
B. Number of rows where the Recorded Analytical Test Result is outside Specification but the Reported Analytical Result is within Specification: Apply the filter to column W to show only the rows which have a “1” in that column. Highlight all of the data in the column by clicking on the top of the column. The number of rows where the Recorded Analytical Test Result is outside Specification but the Reported Analytical Specification is within Specification is 10,971, being the “Count” value less 1 to account for the heading.
Percentage of rows with Recorded Analytical Test Result outside Specification and Reported Analytical Result within Specification (B/A)100 = 12.6%*
The 10,971 parameters with Recorded Analytical Test Results outside Specification and Reported Analytical Results within Specification: • are found in 3,838 separate orders (as referenced at 3 above); and • have estimated times for departure (column C) ranging from 3 January 2010 to 31 October 2013; and • cover 53 customers (being the list of individual customer names from the filtered results in column D). The 53 customers are identified in schedule A to this document.
7.	87.4% of all individual Recorded Analytical Test Results contained in the Parameters Data are not recorded as being outside Specification and being the subject of Adjustment such that the Reported Analytical Result is within Specification or otherwise had a blank entry in the Recorded Analytical Test Result column (Column I).	Page 38347_H (“Data” sheet) A. Total Recorded Analytical Test Results: Highlight all of the data in column W by clicking on the top of the column. The total number of Recorded Analytical Test Results is 87,351, being the “Count” value less 1 to account for the heading. B. Number of rows other than where the Recorded Analytical Test Result is outside Specification and the Reported Analytical Result is within Specification: Apply the filter to column W to show only the rows which have a “0” in that column. Highlight all of the data in the column by clicking on the top of the column. The number of rows other than where the Recorded Analytical Test Result is outside Specification and the Reported Analytical Specification is within Specification is 76,380, being the “Count” value less 1 to account for the heading.	T6627.26-6628.5
C. Number of the 76,380 rows in Column W coded with a “0” but for which there is a blank in the Recorded Analytical Test Result column I: Once you have applied the filter in Column W to click only those with a “0” (per step B above), without clearing that filter move to Column I and using the arrow, filter these by selecting only “blanks”. The number of rows that have blank in Recorded and a “0” in Column W is 6,716.
Percentage of rows other than where the Recorded Analytical Test Result is outside Specification and the Reported Analytical Result is within Specification (B/A)100 = 87.4%*
Percentage excluding rows with a blank Recorded Analytical Test Result ((B-C)/A)100 = 79.8%.*
8.	37.1% of all Adjustments recorded in the Parameters Data were such that the Recorded Analytical Test Result was outside Specification but the Reported Analytical Result was within Specification.	Page 38347_H (“Order Summary” sheet) A. Total number of Adjustments: The figure in cell E4364 (29,372). This total is drawn from “Column E” in the “OrderSummary” sheet, which is the total of all rows in column Q (“LR Recorded and Reported Rounded Excluding Duplicates”) of the “Data” sheet which contain a “1”, being the total number of parameter results in the Parameters Data where the Recorded Analytical Test Result and the Reported Analytical Result do not match (after Ryan has applied various instructions and assumptions).	T6628.6-6630.12
This total includes 5,811 results that do not match because the Recorded Analytical Result is blank, but the Reported Analytical Result is not blank. This figure is calculated by filtering column Q to show only rows containing “1” and then filtering column I (or K) to show only “blanks”).
B Total number of Adjustments where the Recorded Analytical Test Result is outside Specification but the Reported Analytical Result is within Specification: The figure in cell H4364 (10,900)
This total is drawn from “Column H” in the “OrderSummary” sheet, which is the total of all rows in column X (“LR Recorded Out Reported In Excluding Duplicates”) of the “Data” sheet which contain a “1”. For the purpose of this figure, Ryan was instructed to exclude (and did exclude) the 5,811 rows that were treated as non-matching in column Q because the Recorded Analytical Test Result was blank. Calculation: (B/A)100 = 37.1%.*
C. Total number of Adjustments (column E of the “OrderSummary” sheet) excluding blank Recorded Analytical Test Results Calculation: A (29,372) – 5,811 = 23,561. Percentage excluding rows with a blank Recorded Analytical Test Results: (B/C)100 = 46.26%*
9.	There were 261 individual Recorded Analytical Test Results for the Beer Thai, Beer Thip Brewery 1991 Co Ltd and Cosmos Brewery Thailand Co Ltd customers in the Parameters Data that were recorded as being outside Specification.	Page 38347_H (“Data” sheet) Apply the filter to column D to select only the customers beginning with the names “Beer Thai”, “Beer Thip” and “Cosmos Brewery”. Apply the filter to column U to select only the rows that have a “1” in the column. Highlight all of the data in the column by clicking on the top of the column. The number of Recorded Analytical Test Results outside Specification is 261, being the “Count” value less 1 to account for the heading.	T6632.13-6633.29

[4857]By reason of assumption F in the letter of instruction to Ryan dated 26 September 2018 (page 38303_0001): see par 2322 above.

Facts drawn from the Barley Analysis Page 38345

10.	Of the 2,753 unique orders with at least one Reported Variety in the Certificate of Analysis[4858] and at least one Customer Required Barley Variety, there were 2,695 (97.89%) orders where all Reported Varieties on a Certificate of Analysis were a Customer Required Barley Variety.	This is set out in the “Results” page of the Barley Analysis. The figure of 2,753 is obtained by adding the figures in cells B15 and B16 (2,695+58).		Page 38345, tab “Results”, cells B15 and C15
11.	Of the 4,171 unique orders with at least one barley variety used in the blend and at least one Customer Required Barley Variety, 3,236 or 77.58% of those orders, were orders where not all the barley varieties used in the blend were Customer Required Barley Varieties.	This is set out in the “Results” page of the Barley Analysis. The figure of 4,171 is obtained by adding the figures in cells B21 and B22 (935+3,236).		Page 38345, tab “Results”, cells B22 and C22
12.	Of the 2,788 unique orders with at least one barley variety used in the blend and at least one Reported Variety in the Certificate of Analysis, there were 2,457 (88.13%) orders where not all barley varieties used on the blend were Reported Varieties in the Certificate of Analysis.	This is set out in the “Results” page of the Barley Analysis. The figure of 2,788 is obtained by adding the figures in cells B27 and B28 (331+2,457).		Page 38345, tab “Results”, cells B28 and C28
13.	Of the 2,753 unique orders with: • at least one barley variety used in the blend, • at least one Reported Variety in the Certificate of Analysis; and • at least one Customer Required Barley Variety,	This is set out in the “Results” page of the Barley Analysis. The figure of 2,753 is obtained by adding the figures in cells B40 and B41 (2,429+324).		Page 38345, tab “Results”, cells B40 and C40
there were 2,429 (88.23%) unique orders which had: • at least one barley variety used in the blend that did not match any Reported Variety in the Certificate of Analysis; and/or • at least one barley variety used in the blend that did not match any of that Customer’s Required Barley Varieties.
14.	0.93% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “0”.	Page 38345 (“Barley Data” sheet) The total number of rows of data in the sheet is 52,970, being the “Count” value less 1 to account for the heading. Sort the data in column K by smallest to largest. All data in that column up to row 493 (row 492 excluding the heading) contains a “0”. (492/52,970)100 = 0.93%.*	T6647.5-15
15.	1.53% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “0.0001” tonnes or less.	Page 38345 (“Barley Data” sheet) As per the methodology in 14. All data in that column up to row 809 (row 808 excluding the heading) contains a value of “0.0001” or less (808/52,970)100 = 1.53%*.	T6647.16-23
16.	2.48% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “0.0005” tonnes or less.	Page 38345 (“Barley Data” sheet) As per the methodology in 14. All data in that column up to row 1,315 (row 1,314 excluding the heading) contains a value of “0.0005” or less (1,314/52,970)100 = 2.48%*.	T6647.24-29
17.	7.54% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “0.01” tonnes or less.	Page 38345 (“Barley Data” sheet) As per the methodology in 14. All data in that column up to row 3,995 (row 3,994 excluding the heading) contains a value of “0.01” or less (3,994/52,970)100 = 7.54%*.	T6647.30-6648.4
18.	16.1% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “0.1” tonnes or less.	Page 38345 (“Barley Data” sheet) As per the methodology in 14. All data in that column up to row 8,531 (row 8,530 excluding the heading) contains a value of “0.1” or less (8,530/52,970)100 = 16.1%*.	T6648.5-10
19.	28.4% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “1” tonne or less.	Page 38345 (“Barley Data” sheet) As per the methodology in 14. All data in that column up to row 15,046 (row 15,045 excluding the heading) contains a value of “1” or less (15,045/52,970)100 = 28.4%*.	T6648.11-15
20.	45.2% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “5” tonnes or less.	Page 38345 (“Barley Data” sheet) As per the methodology in 14. All data in that column up to row 23,942 (row 23,941 excluding the heading) contains a value of “5” or less (23,941/52,970)100 = 45.2%*.	T6648.16-20
21.	56.34% of the Malt Blend Components recorded in the Barley Data have a Production Issue Quantity of “10” tonnes or less.	Page 38345 (“Barley Data” sheet) As per the methodology in 14. All data in that column up to row 29,844 (row 29,843 excluding the heading) contains a value of “10” or less (29,843/52,970)100 = 56.34%*.	T6648.21-25
22.	The majority of orders recorded in the Barley Data contain more than one Malt Blend Component (ie, more than one row in Production Issue Quantity).	Page 38345 (“Barley Data” sheet) Per column K For example, select the drop-down menu for “Order Number” in Column A and select only order number 10001846. With respect to order number 10001846, Column K (being “Production Issue Quantity”) shows the seven Malt Blend Components comprising this order.
23.	10.8% of the orders recorded in the Parameters Data are for malt supplies of less than 100 tonnes.	Page 38347_H (“Order summary” sheet) Sort column C by smallest to largest There are 4,362 rows of order details (4,359 excluding headings) All data in column C up to row 474 (471 excluding headings) contains a value less than 100 tonnes. 471/4,359 = 10.8%.	T6648.26-6649.25
24.	50% of the orders recorded in the Parameters Data are for malt supplies of less than 225 tonnes, and 50% are for malt supplies of more than 225 tonnes	As per the methodology in 23. All data in column C up to row 2,179 (2176 excluding headings) contains a value of 225 tonnes or less 2,176/4,359 = 49.99%.
25.	1.04% of the total quantity of Malt Blend Components recorded in the Barley Data are recorded to have been produced from Hindmarsh barley.	Page 38345 (“Barley Data” sheet) Select all of the data in column K. The “Sum” figure is 1,356,674.71 Apply the filter to column M to select only the rows that have a “Hindmarsh” in the column (being Hindmarsh Pale Malt and Hindmarsh Trial Pale Malt). Select all of the data in column K. The “Sum” figure is 14,118. (14,118/1,356,674.71)100 = 1.04%*.	T6655.17-6657.2
26.	The “Sum” figure for “Hindmarsh” referred to at 25 above (14,118 tonnes) contained Hindmarsh Malt Blend Components across 188 unique orders. These 188 unique orders have an estimated date of departure (ETD) range of 7 June 2010 to 31 October 2013.	Page 38345 (“Barley Data” sheet) Per 25 above, apply the filter to column M to select only the rows that have a “Hindmarsh” in the column (being Hindmarsh Pale Malt and Hindmarsh Trial Pale Malt). Unique orders: This figure is obtained by removing duplicate Order Numbers from Column A (ie applying the “Remove Duplicates” feature in Excel). ETD: Select Column D, “ETD” and filter by “Oldest to Newest.”
27.	Hindmarsh Pale Malt and Hindmarsh Trial Pale Malt were recorded as Malt Blend Components in the orders of 32 customers in this period.	Page 38345 (“Barley Data” sheet) Per 25 above, apply the filter to column M to select only the rows that have a “Hindmarsh” in the column (being Hindmarsh Pale Malt and Hindmarsh Trial Pale Malt). Select the drop down menu in Column B, “Customer Name”. The number of individual customers recorded in the drop-down menu in Column C is 32. The 32 customers are identified in schedule B to this document.
28.	384 issue batches of Hindmarsh containing at least 5 Tonnes of Hindmarsh were recorded as Malt Blend Components in the Barley Data. 593 issue batches of Hindmarsh containing less than 5 tonnes of Hindmarsh were recorded as Malt Blend Components in the Barley Data.	Page 38345 (“Barley Data” sheet) Per 25 above, apply the filter to column M to select only the rows that have a “Hindmarsh” in the column (being Hindmarsh Pale Malt and Hindmarsh Trial Pale Malt). Apply the filter to Column K to select values that are greater than or equal to 5 and the figure for those orders that use at least 5 tonnes is 384 issue batches. Apply the filter to Column K to select values that are less than 5 and the figure for those orders that use less than 5 tonnes is 593 issue batches.

[4858]All references to “Certificates of Analysis” in items 10, 12 and 13 in this table are a reference to customer order data appearing in the “Reported Materials” column (column P) of the “Barley Data” sheet in page 38345, which Ryan was instructed, pursuant to item P of the table on page 3 of the letter of instruction dated 5 October 2018 (page 38303_0008), identifies the barley variety or varieties reported in the Certificate of Analysis for each order.

Facts drawn from the Deviation Analysis Page 60297

29.	Of the 3,070 Certificates of Analysis[4859] included in the Parameters Data during the Relevant Period, 42.90% of those Certificates of Analysis (or 1,317) had one or more Affected Results (ie the Recorded Analytical Test Result was outside Specification by more than two Standard Deviations and the Reported Analytical Result was within Specification)	This is set out in the summary page of the Deviation Analysis.	Page 60297, tab “Summary”, cells B23, B25 and C23
30.	The 1,317 Certificates of Analysis included in the Parameters Data during the Relevant Period which had one or more Affected Results equate to 508,338 tonnes or 52.01% of the total tonnage for the 3,070 orders during the Relevant Period	This is set out in the summary page of the Deviation Analysis.	Page 60297, tab “Summary”, cells D23 and E23
31.	The 3,070 Certificates of Analysis included in the Parameters Data during the Relevant Period comprise 70.43% of the 4,359 Certificates of Analysis included in the Parameters Data	This is set out in the summary page of the Deviation Analysis.	Page 60297, tab “Summary”, cells B18, B25 and B26
32.	The 3,070 Certificates of Analysis included in the Parameters Data during the Relevant Period comprise 71.94% of the total tonnage included in the Parameters Data.	Page 60297 (“Summary Sheet”) A. Total tonnage in the Deviation Analysis: This figure can be found at cell D11. The total tonnage of the 4,359 orders originally analysed is 1,358,770. B. Total tonnage in the Relevant Period: This figure can be found at cell D25. The total tonnage of the 3,070 orders in the Relevant Period is 977,445. Percentage of total tonnage in the Deviation Analysis that is within the Relevant Period: (B/A)100 = 71.94%*.	Page 60297, tab “Summary”, cells D11 and D25.
33.	The Deviation Analysis for the Relevant Period (18 February 2011 to 31 October 2013) contains orders for 46 individual customers and records that of those individual customers, 93.48% (43 out of 46) were shipped an order with a Certificate of Analysis that contained an Affected Result.	Page 60297 (“Data” Sheet) A. Customers in the Relevant Period: Filter column C to show only results after 17 February 2011. Copy the “Customer Name” column into a new sheet. Press “Remove Duplicates”. There are 52 unique values. Then manually remove the following remaining duplicates from this list: • Beer Thip Brewery (1991) Co Ltd; • Beer Thai; • Marubeni Australia Ltd; • Kirin Brewery Co Ltd; • Beer Thai 1991 Public Co Ltd; • Beer Thip Brewery 1991 Co Ltd. Once these have been removed there are 46 individual customers. B. Number of customers with Affected Results: Go back to the “Data” Sheet. Filter Column AI for “1”. This will show all parameters with an Affected Result in the Relevant Period. Copy the “Customer Name” column into a new sheet. Press “Remove Duplicates”. There are 46 unique values. Then manually remove the following remaining duplicates from this list: • Beer Thip Brewery 1991 Co Ltd; • Marubeni Australia Ltd; • Kirin Brewery Co Ltd. Once these have been removed there are 43 individual customers. Percentage of customers: B/A*100 = 93.48%.
34.	3.52% (or 2,132) of the 60,645 individual entries contained in the Parameters Data during the Relevant Period were Affected Results (including parameters that Ryan was instructed to exclude[4860])	Page 60297 (“Data” Sheet) A. Relevant Period: Filter column C to show only results after 17 February 2011. B. Total entries during the Relevant Period without excluding excluded parameters: At column AI, the number of entries during the Relevant Period is 60,645, being the “Count” value less 1 to account for the heading. C. Number of Affected Results during the Relevant Period: At column AI, the number of Affected Results is 2,132, being the “Sum” value. Percentage of total entries during the Relevant Period (without excluding excluded parameters) which were Affected Results: C/B*100 = 3.52%.	T8578.30-8582.11
35.	4.01% (or 2,132) of the 53,162 entries contained in the Parameters Data during the Relevant Period were Affected Results (excluding parameters that Ryan was instructed to exclude)	Page 60297 (“Data” Sheet) A. Relevant Period: Filter column C to show only results after 17 February 2011. B. Total entries during the Relevant Period after excluding excluded parameters: Filter column AH to show only the “1”s,[4861] then at column AI, the number of entries during the Relevant Period is 53,162, being the “Count” value less 1 to account for the heading. C. Number of Affected Results during the Relevant Period: At column AI, the number of Affected Results is 2,132, being the “Sum” value. Percentage of entries during the Relevant Period (after excluding excluded parameters) which were Affected Results: C/B100 = 4.01%*.	T8582.12-8583.24
36.	197 of the 587 entries for the parameter “1,000 Corn Weight g, Dry Basis” during the Relevant Period were Affected Results	Page 60297 (“Data” Sheet) A. Relevant Period: Filter column C to show only results after 17 February 2011. B. Total entries for this parameter during the Relevant Period: Filter column G to show only results for “1,000 Corn Weight g, Dry Basis”, then at column AI, the number of entries during the Relevant Period for this parameter is 587, being the “Count” value less 1 to account for the heading. C. Number of Affected Results for this parameter during the Relevant Period: At column AI, the number of Affected Results is 197, being the “Sum” value.	T8583.25-8584.15
37.	204 of the 1,851 entries for the parameter “Soluble Protein %, Dry Basis, Congress” during the Relevant Period were Affected Results	Page 60297 (“Data” Sheet) A. Relevant Period: Filter column C to show only results after 17 February 2011. B. Total entries for this parameter during the Relevant Period: Filter column G to show only results for “Soluble Protein %, Dry Basis, Congress”, then at column AI, the number of entries during the Relevant Period for this parameter is 1,851, being the “Count” value less 1 to account for the heading. C. Number of Affected Results for this parameter during the Relevant Period: At column AI, the number of Affected Results is 204, being the “Sum” value.	T8584.16-25
38.	493 of the 2,980 entries for the parameter “Total Protein %, Dry Basis” during the Relevant Period were Affected Results	Page 60297 (“Data” Sheet) A. Relevant Period: Filter column C to show only results after 17 February 2011. B. Total entries for this parameter during the Relevant Period: Filter column G to show only results for “Total Protein %, Dry Basis”, then at column AI, the number of entries during the Relevant Period for this parameter is 2,980, being the “Count” value less 1 to account for the heading. C. Number of Affected Results for this parameter during the Relevant Period: At column AI, the number of Affected Results is 493, being the “Sum” value.	T8584.26-8585.1
39.	The sum of the number of entries in Items 36-38 above, being the total number of Affected Results for those three parameters during the Relevant Period, is 894, comprising 41.93% of the total number of Affected Results during the Relevant Period at Items 34 and 35	The sum of the number of Affected Results during the Relevant Period for the three parameters at Items 36-38: 197+204+493 = 894 Percentage of total number of Affected Results during the Relevant Period for those parameters: 894/2,132*100 = 41.93%.	T8585.2-27
40.	34 of the 3,095 entries for the parameter “Moisture %” during the Relevant Period were Affected Results, being 1.10% of the total number of entries for that parameter during the Relevant Period	Page 60297 (“Data” Sheet) A. Relevant Period: Filter column C to show only results after 17 February 2011. B. Total entries for this parameter during the Relevant Period: Filter column G to show only results for “Moisture %”, then at column AI, the number of entries during the Relevant Period for this parameter is 3,095, being the “Count” value less 1 to account for the heading. C. Number of Affected Results for this parameter during the Relevant Period: At column AI, the number of Affected Results is 34, being the “Sum” value. Percentage of entries for this parameter during the Relevant Period which were Affected Results: 34/3,095 = 1.10%.	T8586.19-8587.7
41.	For Certificates of Analysis that contained one or more Affected Results, there was an average of 1.62 Affected Results per Certificate of Analysis[4862] during the Relevant Period (ie excluding Certificates of Analysis which had no Affected Results)	This is calculated by taking the total number of Affected Results during the Relevant Period per Items 34 and 35 above, and dividing it by the total number of Certificates of Analysis during the Relevant Period which had one or more Affected Results per Item 29 above: 2,132/1,317 = 1.62.	T8589.11-8590.13
42.	There was an average of 0.69 Affected Results per Certificate of Analysis during the Relevant Period (ie including Certificates of Analysis which had no Affected Results)	This is calculated by taking the total number of Affected Results during the Relevant Period per Items 34 and 35 above, and dividing it by the total number of Certificates of Analysis during the Relevant Period per Item 29 above: 2,132/3,070 = 0.69.	T8590.14-8590.29
43.	For each included parameter with a Standard Deviation of zero,[4863] the total number of Adjustments and the total number of Affected Results is the same	This was demonstrated by the example of the parameter “1,000 Corn Weight g, Dry Basis” as follows. Page 60297 (“Data” Sheet) A. Relevant Period: Filter column C to show only results after 17 February 2011. B. Number of Affected Results for this parameter during the Relevant Period: Filter column G to show only results for “1,000 Corn Weight g, Dry Basis”, then at column AI, the number of Affected Results is 197, being the “Sum” value. C. Number of Adjustments for this parameter during the Relevant Period: At column X, the number of Adjustments is 197, being the “Sum” value.	T8594.6-8598.21

[4859]See fn 4856 above, for items 29-31 of this table of annexure D.

[4860]See next item including fn 4861 below.

[4861]This excludes parameters that Ryan was instructed to exclude by reason of the letters of instruction to Ryan dated 18 June 2019 and 21 June 2019.

[4862]See fn 4856 above, for items 41-42 of this table.

[4863]Being the parameters at items 50-87 of the table at page 60291 which comprised Ryan’s instructions as to Standard Deviation values. These are the parameters at numbers 50-87 of column C of the “Standard Deviation” Sheet of page 60297 (note that they appear in rows 51-88).

Facts drawn from the edited copy of the Deviation Analysis page 60297_0001

Note:Page 60297_0001 is a copy of page 60297 with figures changed by the court book operator, on the basis of instructions given by senior counsel for the Viterra Parties, Mr Parmenter QC. Entries in Column D of the “StandardDeviation” sheet were changed from 1s to 0s for the parameters at rows 51-88 (being the parameters at items 50-87 of page 60291 for which Ryan was instructed to assume a Standard Deviation of zero and include in his analysis). The calculations in the spreadsheet were then recalculated. As a result, page 60297_0001 shows the Deviation Analysis with those parameters excluded. Refer T8602.7-26.

44.

With the parameters at items 50- 87 excluded, 25.31% of Certificates of Analysis[4864] included in the Parameters Data during the Relevant Period had one or more Affected Results (ie the Recorded Analytical Test Result was outside Specification by more than two Standard Deviations and the Reported Analytical Result was within Specification)

This is set out in the summary page of the edited copy of the Deviation Analysis.

Page 60297_0001, tab “Summary”, cell C23

T8602.27-8603.4

45.

With the parameters at items 50- 87 excluded, 1.66% (or 1,007) of the 60,645 individual entries contained in the Parameters Data during the Relevant Period were Affected Results (including parameters that Ryan was instructed to exclude[4865] and the parameters at items 50-87 of page 60291 that the court book operator was instructed to exclude by senior counsel for the Viterra Parties)

Page 60297_0001 (“Data” sheet)

A. Relevant Period: Filter column C to show only results after 17 February 2011.

B. Total entries during the Relevant Period without excluding excluded parameters: At column AI, the number of entries during the Relevant Period is 60,645, being the “Count” value less 1 to account for the heading.

C. Number of Affected Results during the Relevant Period: At column AI, the number of Affected Results is 1,007, being the “Sum” value.

Percentage of total entries during the Relevant Period (without excluding excluded parameters) which were Affected Results:

C/B*100 = 1.66%.

T8603.19-8604.24

46.

With the parameters at items 50- 87 excluded, 2.57% (or 1,007) of the 39,148 individual entries contained in the Parameters Data during the Relevant Period were Affected Results (excluding individual parameters that Ryan was instructed to exclude and the parameters at items 50- 87 of page 60291 that the court book operator was instructed to exclude by senior counsel for the Viterra Parties)

Page 60297_0001 (“Data” Sheet)

A. Relevant Period: Filter column C to show only results after 17 February 2011.

B. Total entries during the Relevant Period after excluding excluded parameters: Filter column AH to show only the “1”s,[4866] then at column AI, the number of entries during the Relevant Period is 39,148, being the “Count” value less 1 to account for the heading.

C. Number of Affected Results during the Relevant Period: At column AI, the number of Affected Results is 1,007, being the “Sum” value.

Percentage of total entries during the Relevant Period (after excluding excluded parameters) which were Affected Results:

C/B*100 = 2.57%.

T8604.25-8605.15

[4864]See fn 4856 above for this item.

[4865]See next item including fn 4866 below.

[4866]This excluded parameters that Ryan was instructed to exclude by reason of the letters of instruction to Ryan dated 18 June 2019 and 21 June 2019 and parameters that were excluded by the court book operator at the instructions of senior counsel for the Viterra Parties.

Schedule A - Fact 6

List of individual customers

Customer Name
1	An Loc Phuong Company Ltd
2	Asia Pacific Breweries Singapore PL
3	Asia Pacific Brewery Hanoi Ltd
4	Beer Thai 1991 Public Co Ltd
5	Beer Thip Brewery 1991 Co Ltd
6	Brasserie De Tahiti
7	Cambodia Brewery Limited
8	Cargill Japan Ltd
9	Chen Tai Foods Co Ltd
10	Cosmos Brewery Thailand Co Ltd
11	Dakao Trading and Service Co Ltd
12	DB Breweries Limited
13	EMM LLC
14	Guinness Anchor Berhad
15	Hanoi Beer
16	Hite Brewery Co Ltd
17	Hitejinro Co Ltd
18	Hue Brewery Limited
19	Khon Kaen Brewery Co Ltd
20	Kirin Brewery Company Limited
21	Lao Asia Pacific Breweries Limited
22	Lion Breweries South
23	Long Fong Import Export Co Ltd
24	Lotte Chilsung Beverage Co Ltd
25	Louisiane One Member Company Limite
26	Marubeni Australia Limited
27	Meidiya Company Ltd
28	Millac Foods PVT Ltd
29	Millers Brewery Limited
30	Myawaddy Trading Limited
31	Nestlé Singapore Pte Ltd
32	Nouvelle Brasserie de Madagascar
33	Oriental Brewery Co Ltd
34	Pathumthani Brewery Co Ltd
35	Phoenix Beverages Limited
36	Pt Multi Bintang Indonesia
37	Saigon Beer Alcohol and Beverages
38	San Miguel Beer Thailand Ltd
39	San Miguel Brewery Inc
40	San Miguel Brewery Vietnam Ltd
41	Singha Beverage Co Ltd
42	Solomon Breweries Ltd
43	South Pacific Brewery Limited
44	Sumitomo Corporation Asahi
45	Sumitomo Corporation Kirin
46	Tan Hiep Phat Co Ltd
47	Thai Asia Pacific Brewery Co Ltd
48	Thai Duyen Trading And Transpo
49	Thai Tan Trading and Transport
50	The South Africa Breweries Ltd
51	United Thai Distillers Co Ltd
52	Vanuatu Brewing Limited
53	Vietnam Brewery Limited

Schedule B - Fact 27

List of individual customers

Customer
1	Asia Pacific Breweries Singapore PL
2	Asia Pacific Brewery Hanoi Ltd
3	Beer Thai (1991) Public Co Ltd
4	Beer Thip Brewery (1991) Co Ltd
5	Brasserie De Tahiti
6	Cambodia Brewery Limited
7	Cargill Japan Ltd
8	Cosmos Brewery (Thailand) Co Ltd
9	Guinness Anchor Berhad
10	Hanoi Beer
11	Hite Brewery Co Ltd
12	Hitejinro Co Ltd
13	Khon Kaen Brewery Co Ltd
14	Kirin Brewery Co Ltd
15	Lao Asia Pacific Breweries Limited
16	Lotte Chilsung Beverage Co Ltd
17	Louisiane One Member Company Limited
18	Millac Foods PVT Ltd
19	Nestlé Singapore Pte Ltd
20	Oriental Brewery Co Ltd
21	Pathumthani Brewery Co Ltd
22	Pt Multi Bintang Indonesia
23	Saigon Beer Alcohol and Beverages C
24	San Miguel Brewery Inc
25	Singha Beverage Co Ltd
26	Solomon Breweries Ltd
27	South Pacific Brewery Limited
28	Tan Hiep Phat Co Ltd
29	Thai Asia Pacific Brewery Co Ltd
30	Thai Duyen Trading And Transport
31	Thai Tan Trading and Transport
32	Vietnam Brewery Limited

Identify applicable food and feed regulations and evaluate project accordingly.
Identify appropriate resources and capabilities needed for food safety/regulatory compliance risk management.
Perform the Cargill Corporate Food Safety and Regulatory Affairs Audit as part of Due Diligence activities.
Finish the [due diligence] document request list (section M4 [Food Safety, Quality and Regulatory]).
Review [due diligence] documents.
Review [Joe White’s Food Safety, Quality and Regulatory] organization and determine the gaps to get to the Cargill [Food Safety, Quality and Regulatory] organization model.
Create a [Food Safety, Quality and Regulatory] plan to mitigate and manage identified risks and needed changes [from] the [Corporate Food Safety and Regulatory Affairs] Audit, the [due diligence] Document Checklist, and the Organization review.
Update and follow-up on [the plan referred to in the preceding item] to mitigate and manage the identified risks and need changes …
Complete plans for eliminating/mitigating [Food Safety, Quality and Regulatory] compliance risks (include capital needs).
Continue to review [due diligence] documents.
Conduct [a Food Safety, Quality and Regulatory] follow-up meeting, involving Corporate Food Safety, Quality and Regulatory as appropriate, to discuss the prepared … action plan.
Understand customer needs, product specifications, and analytical testing procedures.
Ensure that customer needs can be met.

[2022] VSC 13

28 January 2022