Indi Pty Ltd v InComm TCN Holdings Pty Ltd
[2025] VSC 687
•6 November 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2024 06703
| INDI PTY LTD (ACN 128 172 190) as trustee for the HEWITT BUSINESS TRUST (ABN 91 451 179 322) | Plaintiff |
| v | |
| INCOMM TCN HOLDINGS PTY LTD (ACN 662 754 878) | Defendant |
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JUDGE: | Waller J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9–10 October 2025 |
DATE OF RULING: | 6 November 2025 |
CASE MAY BE CITED AS: | Indi Pty Ltd v InComm TCN Holdings Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2025] VSC 687 |
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CONTRACTS — Construction of commercial contract — Share sale agreement — Company’s business involves sale of redeemable gift cards — Deferred payment based on breakage calculations — Obligation to provide supporting information, calculations and documentation — Whether includes underlying Source Data — Whether includes Breakage Brief provided to consultant — Whether includes communications with consultant — Whether includes documents relied upon to prepare notices — Meaning of identical phrases in different contractual clauses — Whether right to access books and records expired after review period — Reasonableness of requests by party’s adviser.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Sulan SC with Ms X Teo | King & Wood Mallesons |
| For the Defendant | Mr N De Young KC with Mr S Campbell | Arnold Bloch Leibler |
HIS HONOUR:
A. INTRODUCTION
This proceeding concerns information disclosure obligations arising under a Share Sale Agreement (SSA) by which the plaintiff (Indi) sold its 46.25% shareholding in TCN Group Pty Ltd (TCN) to the defendant (InComm).
TCN’s business involves the sale of gift cards or vouchers that are redeemable at certain retailers throughout Australia.
Under the SSA, entered into on 11 October 2022, the purchase price predominantly comprised an upfront payment of $75 million plus a potential deferred ‘Further Payment’ calculated by reference to TCN’s 2022 earnings and breakage. Breakage — unspent money on expired gift cards that TCN retains — is TCN’s major revenue source.
As most of the gift cards sold by TCN are valid for three years from the date of purchase, the total breakage amount can only be calculated with certainty after the end of 2025. Nevertheless, the starting amount on a gift card and the current total amount on that card can be quantified at any point in time. It is therefore possible to estimate at an earlier stage based on amounts already spent and statistical models of historical gift card spending patterns the amount of breakage likely to ultimately result.
The SSA established a multi-stage process for calculating the Further Payment, extending from 2022 through to final determination by 31 December 2025. At each stage, InComm was required to provide Indi with calculations ‘together with supporting information, calculations and documentation’. The parties could dispute calculations and, if disagreement persisted, refer the matter to an independent accountant for final determination.
Indi contends that InComm has failed to provide the information and documents it is contractually entitled to receive. It seeks access to:
(a) underlying source data from TCN’s management systems (Source Data);
(b) the instructions and specifications given to Card Compliant LLC (Card Compliant), the consultant engaged to estimate breakage (the Breakage Brief);
(c) the actual reports prepared by Card Compliant; and
(d) various supporting documentation identified by Indi’s expert accountant as necessary to verify InComm’s calculations.
InComm’s position is that it has fulfilled its disclosure obligations under the SSA. It contends that the phrase ‘supporting information, calculations and documentation’ does not extend to Source Data or the Breakage Brief, that it has provided the Card Compliant reports (in the form of spreadsheet extracts), and that Indi’s requests are either unreasonable or made outside the applicable contractual time limits.
B. BACKGROUND
B.1 The TCN Business
Richard Hewitt and Nicholas Sims founded TCN, trading as The Card Network, in 2019. Its business was the sale of gift cards redeemable at certain retailers throughout Australia.[1]
[1]Court Book filed 18 August 2025, 7 [3] (CB).
As described above, gift cards sold by TCN are typically valid for three years from the date of issue. Upon expiry, any unspent money on the gift card, or breakage, is in most cases kept by TCN. Breakage is the major source of revenue for TCN, with the remainder being commission paid to TCN upon redemption of a gift card at a retailer.[2]
[2]CB 7 [4].
TCN gift cards can be purchased in physical or digital form, with the amount chosen by the customer loaded onto the gift card by TCN. TCN sold gift cards through various avenues, which it organised internally under several different ‘sales channel’ labels. These channels included a ‘grocery’ channel for gift cards sold through Coles, Woolworths, Big W and Target, and a ‘B2B’ channel for gift cards sold to a variety of corporate clients.[3]
[3]CB 71 [12].
B.2 TCN data and breakage estimates
TCNAdmin is TCN’s central internal management system in which TCN aggregates and records multiple sources of gift card data.[4]
[4]CB 73 [23].
The information within TCNAdmin includes Source Data, being data from databases of ledgers of third-party issuers of cards that has been formatted by TCN. Source Data includes real time data of the products sold by TCN such as balances and expiry dates of individual cards.[5]
[5]CB 64–5 [74].
A third-party platform, Power BI, which aggregates data, is also used to estimate breakage. Extracts from Power BI contain data from each sales channel from TCNAdmin, providing information by card and by channel.[6]
[6]CB 75 [30], 354.
TCN has also for many years engaged Card Compliant to estimate breakage. Reports produced by Card Compliant are based on briefs and information provided by TCN to Card Compliant.[7]
[7]CB 55 [20].
B.3 The SSA
From 30 May 2018, Indi owned 46.25% of the shares in TCN. Mr Hewitt is the sole director and secretary of Indi.[8]
[8]CB 52 [1].
On 7 May 2022, InComm and the shareholders in TCN, including Indi, entered into a non-binding ‘Heads of Agreement’ which summarised the terms of the acquisition of shares in TCN by InComm. The aggregate purchase price was specified as $105 million.[9]
[9]CB 6 [1(b)], 53 [8].
After a period of negotiation, on 11 October 2022, Indi (and other shareholders) sold their shareholding in TCN to InComm pursuant to the SSA. The consideration for the sale predominantly consisted of a payment of $75 million to be shared between the sellers, and the deferred Further Payment.[10]
[10]CB 438–9.
Clause 7 of the SSA provides the mechanism for the calculation of the Further Payment. It also requires that information underlying the calculation be provided, and provides for the resolution of disputes concerning the Further Payment.
It is convenient to set out clause 7 of the SSA in full:
7 Post Completion Calculations and Further Payment
7.1 Completion EBITDA & Completion Breakage Amount
Within 40 Business Days after Completion, the Sellers must procure:
(a) the calculation of Completion Breakage Amount;
(b)the preparation of the Completion Accounts, which shall include the Completion Breakage Amount; and
(c) the calculation of the Completion EBITDA; and
(d)a calculation of EBITDA, which shall include the Breakage in respect of Gift Cards sold in the period commencing on 1 January 2022 and ending on the Effective Time,
and provide a copy of each of the items at clauses 7.1 (a), 7.1 (b), 7.1 (c) and 7.1 (d) to the Buyer together with supporting information, calculations and documentation.
7.2December 22 EBITDA (Base) & December 22 Breakage (First Estimate)
Within 40 Business Days after 31 December 2022, the Buyer must:
(a)procure Card Compliant, LLC or its successor (or another party agreed by the Buyer and Sellers) to calculate and provide a report (on the basis of the Breakage Brief) for the:
(i) December 22 Breakage (First Estimate); and
(ii) amount of Breakage of the Group as at the Effective Time;
(b) calculate the December 22 EBITDA (Base); and
(c)prepare the December 22 Accounts, the first draft of which must be prepared by JM (so long as JM remains employed by the Group or the Buyer Group) in consultation with Walker Wayland (in accordance with the principles set out in Schedule 7),
and provide a copy of each of the items at clauses 7.2(a), 7.2(b) and 7.2(c) to the Sellers together with supporting information, calculations and documentation. The parties agree that in undertaking the calculations in clauses 7.2(b) and 7.2(c) the Buyer will take into consideration the amounts provided in the report prepared pursuant to clause 7.2(a).
7.3 Review and finalisation of December 22 Accounts
The provisions of clauses 5.2 to 5.9 apply mutatis mutandis to the Sellers’ examination and review of the draft December 22 Accounts and December 22 EBITDA (Base) as if the references to “Completion Statement” are references to “December 22 Accounts” and references to “Actual Working Capital and Actual Net Debt” are references to “December 22 EBITDA (Base)”.[11]
[11]Clauses 5.2 to 5.9 provide for a review and dispute resolution procedure.
7.4December 22 EBITDA (Second Estimate) & December 22 Breakage (Second Estimate), Further Payment Calculation
Within 40 Business Days after 31 December 2023, the Buyer must:
(a)procure Card Compliant, LLC or its successor (or another party agreed by the Buyer and Sellers) to calculate and provide a report (on the basis of the Breakage Brief) for the:
(i) December 22 Breakage (Second Estimate); and
(ii) amount of Breakage of the Group as at the Effective Time;
(b)calculate the December 22 EBITDA (Second Estimate) by including December 22 Breakage (Second Estimate);
(c) calculate the Breakage Differential Amount; and
(d)calculate the Further Payment in accordance with clause 7.5 (FP Notice),
and provide a copy of each of the items at clauses 7.4(a), 7.4(b), 7.4(c) and 7.3(d) to the Sellers together with supporting information, calculations and documentation. The parties agree that in undertaking the calculations in clauses 7.4(b), 7.4(c) and 7.4(d) the Buyer will take into consideration the amounts provided in the report prepared pursuant to clause 7.4(a).
7.5 Further Payment Calculation
(a)The Further Payment will be determined and calculated in accordance with this clause after the calculation of the items in clauses 7.4(a) and 7.4(b) and the Breakage Differential Amount in clause 7.4(c).
(b)The Further Payment shall be calculated in accordance with the following formula:
FP = ((AE x 10.5) - $75,000,000)- (BDA)
Where:
FP is the Further Payment.
AE is the December 22 EBITDA (Second Estimate).
BDA is the Breakage Differential Amount.
Worked Examples and for illustration only:
if the BOA is a positive amount:
• If the (AE) December 22 EBITDA (Second Estimate)= $11,000,000,
• If the BOA= +$10m.
• (($11,000,000 x 10.5) - $75,000,000) - (+$10,000,000) = $30,500,000
• Further Payment = $30,500,000.
if the BOA is a negative amount:
• If the (AE) December 22 EBITDA (Second Estimate)= $11,000,000,
• If the BOA=-$10m.
• (($11,000,000 x 10.5) - $75,000,000) - (-$10,000,000) = $50,500,000
• Further Payment = $50,500,000.
7.6 Sellers Review
The Sellers must complete their examination and review of the Further Payment calculation in the FP Notice and all items at clauses 7.4(a), 7.4(b) and 7.4(c) within 20 Business Days after receipt from the Buyer under clause 7.3 (FP Review Period) and deliver to the Buyer a written report, by no later than the end of the FP Review Period (Sellers FP Report) stating whether or not the Sellers agree with the contents of the FP Notice.
7.7 Sellers Agree
If the Sellers agree with the FP Notice in the Sellers FP Report:
(a)if the Further Payment is more than $0, the Buyer will pay the Further Payment to the Sellers, together with an amount for Simple Interest calculated in accordance with clause 7.17 (in their Respective Proportions) within 10 Business Days after the date the Sellers deliver the Sellers FP Report; or
(b)if the Further Payment is a negative amount, the Further Payment will be deemed to be $0, the Buyer will not be required to pay any Further Payment to the Sellers, the Sellers will not be required to pay the Further Payment to the Buyer, and, following such, the Purchase Price will be deemed fully paid.
7.8 Sellers Disagree
If the Sellers do not agree with contents of the FP Notice, the Sellers must also set out in the Sellers FP Report:
(a)the matters in respect of which the Sellers disagree with the FP Notice (Disputed FP Matters);
(b) the grounds on which the Sellers disagree with the FP Notice; and
(c) the Sellers’ opinion as to the quantum of the Further Payment.
7.9 No Sellers FP Report
If the Sellers do not deliver the Sellers FP Report as required under clause 7.6, then the FP Notice delivered by the Buyer under clause 7.4 will be deemed to be accepted by the Sellers and clause 7.7 shall apply.
7.10 Steps on Disagreement
(a) If the Sellers delivers a Sellers FP Report as required under clause 7.6 stating that the Sellers do not agree with the Further Payment provided for in the FP Notice, then the Sellers and the Buyer must enter into good faith negotiations and use all reasonable endeavours to agree the Disputed FP Matters.
(b)If the Buyer and the Sellers cannot agree the Disputed FP Matters within 20 Business Days after delivery of the Sellers FP Report (or such longer period as the Buyer and the Sellers may agree in writing) then the Buyer must pay to the Sellers (in their Respective Proportions) at least 80% of the Further Payment (as calculated by the Buyer and specified in the FP Notice) (Further Payment Instalment) and defer the calculation and payment of the balance of the Further Payment (Deferred FP Amount) until a date no later than 31 December 2025 (Deferred FP Date) in accordance with clauses 7.11 and 7.12.
7.11 Deferred FP Amount - 2nd FP Notice
This clause 7.11 applies if there is a Deferred FP Amount.
(a)Within 40 Business Days after 31 December 2024, the Buyer will (2nd FP Notice):
(i)procure Card Compliant, LLC or its successor (or another party agreed by the Buyer and Sellers) to provide a report (on the basis of the Breakage Brief) for the:
(A) December 22 Breakage (Third Estimate); and
(B)amount of Breakage of the Group as at the Effective Time;
(ii)calculate the December 22 EBITDA (Third Estimate) by including December 22 Breakage (Third Estimate); and
(iii)calculate the Further Payment in accordance with clause 7.5 but using the December 22 EBITDA (Third Estimate) and the Final Breakage Amount determined under clause 7.11 (a)(i), and determine:
(A)the quantum (if any) of the Deferred FP Amount that is payable to the Sellers; or
(B)whether the Further Payment Instalment paid by the Buyer to the Sellers under clause 7.10(b) results in a payment due to the Buyer by the Sellers (Overpayment),
and provide a copy of each of the items at clauses 7.11 (a)(i), 7.11 (a)(ii) and 7.11 (a)(iii) to the Sellers together with supporting information, calculations and documentation. The parties agree that in undertaking the calculations in clauses 7.11 (a)(ii) and 7.11 (a)(iii) the Buyer will take into consideration the amounts provided in the report prepared pursuant to clause 7.11 (a).
(b)Clauses 7.6 to 7.10(a) apply mutatis mutandis to the review and response to the 2nd FP Notice as if it were an FP Notice.
(c)If the Sellers agree with the 2nd FP Notice, the agreed Deferred FP Amount or Overpayment (as the case may be) must be paid, together with an amount for Simple Interest calculated in accordance with clause 7.17 or, in the case of an Overpayment, with a repayment of any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment, within 10 Business Days of the date on which the Deferred FP Amount is agreed between the Buyer and the Sellers and, following such payment, the Purchase Price will be deemed fully paid.
7.12 Deferred FP Date and Deferred FP Amount - Final FP Notice
This clause 7.12 applies if there is a Deferred FP Amount and clause 7.11(c) does not apply.
(a)Within 40 Business Days after the Deferred FP Date, the Buyer must (Final FP Notice):
(i) calculate the:
(A) December 22 Breakage (Final); and
(B)amount of Breakage of the Group as at the Effective Time;
(ii)calculate the December 22 EBITDA (Final), using the December 22 EBITDA (Base) and including December 22 Breakage (Final), and
(iii)calculate the Further Payment in accordance with clause 7.5, but using the December 22 EBITDA (Final) and the Final Breakage Amount determined under clause 7.12(a)(i) and determine:
(A)the quantum (if any) of the Deferred FP Amount that is payable to the Sellers; or
(B)whether the Further Payment Instalment paid by the Buyer to the Sellers under clause 7.10(b) results in a payment due to the Buyer by the Sellers (Overpayment),
and provide a copy of each of the items at clauses 7.12(a)(i), 7.12(a)(ii) and 7.12(a)(iii) to the Sellers together with supporting information, calculations and documentation.
(b)Clause 7.6 to 7.10(a) apply mutatis mutandis to the review and response to the Final FP Notice as if it were an FP Notice.
(c)If the Sellers agree with the Final FP Notice the agreed Deferred FP Amount or Overpayment (as the case may be) must be paid, together with an amount for Simple Interest calculated in accordance with clause 7.17 or, in the case of an Overpayment, a repayment of any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment, within 10 Business Days of the date on which the Deferred FP Amount or Overpayment (as the case may be) is agreed between the Buyer and Sellers and, following such payment, the Purchase Price will be deemed fully paid.
7.13 Independent Accountant Dispute Resolution
(a)If the Seller disagrees with the Final FP Notice and the Buyer and the Sellers cannot agree the Disputed FP Matters in respect of the Final FP Notice within 20 Business Days after delivery of the Sellers FP Report (or such longer period as the Buyer and the Sellers may agree in writing) then either the Buyer or the Sellers may refer the disagreement to the Independent Accountant to determine such unresolved Disputed FP Matters. For the avoidance of doubt, the only matters which may be referred to the Independent Accountant for determination are the December 22 Breakage (Final) and the Final Breakage Amount and the impact that such amounts have on the December 22 EBITDA (Final) and the Further Payment.
(b)The Buyer and the Sellers must instruct the Independent Accountant to decide within the shortest practicable time the Disputed FP Matters in respect of the Final FP Notice and to deliver to the Buyer and the Sellers a report (IA’s FP Report), that contains a copy of the amended Final FP Notice (if any) and that states, on the basis of the Independent Accountant's decision, its opinion as to:
(i)the Disputed Matters in respect of the Final FP Notice, including the reasons for the Independent Accountant’s decision; and
(ii) the Final FP Notice.
(c)The Buyer and the Sellers must provide and must ensure that the Buyer’s accountants and the Group’s accountants respectively provide, all information and assistance the Independent Accountant reasonably requests for the purpose of the IA’s FP Report.
(d)The Buyer and the Sellers may, within 10 Business Days of the appointment of the Independent Accountant, make a submission to the Independent Accountant in respect of each of the Disputed FP Matters in respect of the Final FP Notice and may, within 5 Business Days of a submission by the other party, make a response to the submission of the other party.
(e)The procedures to be followed by the Independent Accountant and the parties in determining the dispute will be as follows:
(i)the Independent Accountant will review the documents submitted by the relevant parties and have the opportunity to ask specific written questions of, or request specific historical documents from, the parties to clarify its understanding of the submissions;
(ii)in relation to questions asked of one party, the other party may submit to the Independent Accountant written dissent to any response submitted by the first party to the Independent Accountant;
(iii)copies of any submission, response or document submitted to or by the Independent Accountant by or to a party as contemplated in this clause will be submitted by the party or the Independent Accountant to the other parties simultaneously or as soon as received, as the case may be; and
(iv)if any non-written communication with the Independent Accountant is proposed, the relevant party must:
(A)give the other parties not less than 2 Business Days’ notice of the proposed communication; and
(B)provide each other party and its representatives and advisers with the opportunity to be present at any meetings or be part of any discussions, as the case may be.
7.14 Conclusiveness of IA’s report
(a)The Independent Accountant will act as an expert, not as an arbitrator, in determining the dispute.
(b)The Independent Accountant’s determination in relation to the Disputed FP Matters in respect of the Final FP Notice and the Final FP Notice must be made as soon as possible.
(c)The Independent Accountant's decision is final, conclusive and binding (except in the case of manifest error).
(d)The Deferred FP Amount determined as payable by the Independent Accountant, must be paid by the Buyer to the Sellers, together with an amount for Simple Interest calculated in accordance with clause 7.17, within 10 Business Days of the date of the IA's FP Report and, following such payment, the Purchase Price will be deemed fully paid.
(e)The Overpayment determined by the Independent Accountant as payable must be paid by the Sellers to the Buyer, together with a repayment of any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment, within 10 Business Days of the date of the IA’s FP Report and, following such payment, the Purchase Price will be adjusted by the amount of the Overpayment.
7.15 Costs
The parties agree to each pay the Independent Accountant’s costs and expenses in accordance with the determination of the Independent Accountant. In the absence of such a decision, the Sellers and the Buyer will each pay for half of the Independent Accountant’s costs and expenses.
7.16 Access to information
The Buyer must procure the Company to:
(a)permit representatives of the Buyer and the Sellers to have access to and take extracts from the books, correspondence, accounts or other records relating to the Group as the Buyer or the Sellers reasonably request in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice; and
(b)provide or ensure the provision of all information and assistance that may reasonably be requested by the advisers of the Buyer and the Sellers in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice (as applicable), which includes procuring that JM (so long as JM remains employed by the Company) provides all reasonable assistance to the Sellers during business hours,
and the parties further agree that:
(c)nothing in this clause 7.16 requires the Buyer to waive legal professional privilege; and
(d)the Sellers must comply (and procure their representatives comply) with any reasonable confidentiality requirements of the Buyer.
7.17Payment of Simple Interest: Further Payment, Further Payment Instalment, Deferred FP Amount or Overpayment
(a) At the same time that:
(i)the Further Payment is paid by the Buyer to the Sellers under clause 7.7; or
(ii)a Further Payment Instalment is paid by the Buyer to the Sellers under clause 7.10(b),
the Buyer must also pay to the Sellers Simple Interest on the Further Payment or the relevant Further Payment Instalment (as applicable) at the Initial Interest Rate for the period commencing on the Completion Date and ending on the date on which the Further Payment or relevant Further Payment Instalment (as applicable) is paid by the Buyer to the Sellers.
(b)At the same time that a Deferred FP Amount is paid by the Buyer to the Sellers, the Buyer must also pay to the Sellers Simple Interest on the relevant Deferred FP Amount calculated in the following manner:
(i)at the Initial Interest Rate for the period commencing on the Completion Date and ending on the date on which the Deferred FP Amount is deferred under clause 7.1 0(b ); plus
(ii)at the Deferred Interest Rate for the period commencing on the date on which the Deferred FP Amount is deferred under clause 7.10(b) until the date on which the Deferred FP Amount is paid by the Buyer to the Sellers.
(c)Where the Overpayment is payable to the Buyer that amount shall be paid by the Sellers to the Buyer with an amount of Simple Interest calculated in this clause within 10 Business Days after the earlier of:
(i)agreement between the parties to the Overpayment due to the Buyer; or
(ii)determination of the Overpayment as at the date of (and in) the IA’s Report under clause 7.14(e)
The Sellers must repay, at the same time the Overpayment is paid to the Buyer, any interest that has been paid by the Buyer to the Sellers in respect of the Overpayment.
Schedule 7 of the SSA specifies in detail how relevant post-completion calculations are to be prepared.
1 General Principles
(a)The Completion Breakage Amount, Completion Accounts, Completion EBITDA, December 22 Accounts and December 22 EBITDA (Base) (Post Completion Accounts - Part A) must be prepared in accordance with, in order of precedence:
(i)the specific accounting principles, policies and procedures set out in Part 2 of this Schedule 7;
(ii)where an item is not covered by the specific accounting principles, policies and procedures set out in paragraph (a) of Part 1 of this Schedule 7, in a manner consistent with the accounting principles, policies and procedures (with consistent classifications, judgments and estimation techniques) used to prepare the Accounts for the twelve months ending on the Accounts Date, but taking into account that not all line items in the Accounts will be included in the Post Completion Accounts - Part A; and
(iii)where an item is not covered by the accounting principles, policies and procedures referred to in paragraphs (i) or (ii) of Part 1 of this Schedule 7 above, in accordance with the Accounting Standards.
(b)The December 22 Breakage (First Estimate), December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate), December 22 Breakage (Final), Final Breakage Amount, December 22 EBITDA (Second Estimate), December 22 EBITDA (Third Estimate) and December 22 EBITDA (Final) (Post Completion Accounts - Part B, together with the Post Completion Accounts - Part A, the Post Completion Accounts) must be prepared in accordance with the specific accounting principles, policies and procedures set out in Part 2 of this Schedule 7.
2 Accounting Principles
The Post Completion Accounts must be prepared in accordance with the following principles:
(a)The Completion Accounts and December 22 Accounts must be prepared in a manner consistent with the accounting standards, principles, policies and procedures used to prepare the Completion Statement in accordance with Part B of Schedule 6, other than the following normalisations that are to be added back to the Completion EBITDA and December 22 EBITDA (Base):
(i)Transaction Costs, including but not limited to travel, accommodation and associated expenses relating to visit by TCN and its advisers to Tampa in September 2022; and
(ii)where not already included in Transaction Costs under Paragraph (a)(i) of Part 2 of Schedule 7, the following normalisations:[12]
[12]The detail of these normalisations is set out in an image of a table in the SSA and omitted here.
…
(b)Completion Breakage Amount must be calculated on the same basis that the Group has accounted for Breakage in the Accounts, being:
(i)Breakage is recognised in line with month of sale. Breakage is not recognised in line with spend as required under IFRS15. For example, the Group sold 1 x $100 card in a month, and the Group expects 10% of the funds on that card to be unspent at the end of its expiration period, the Group would take up $10 of breakage revenue (less GST liability) in the month of sale via a journal at month end.
(ii)Historically, Card Compliant reports are used to guide the Group’s breakage estimates for its 7 highest selling cards. The Group has adopted its own models and uses the Card Compliant reports as an index.
(iii)In respect of corporate sales (B2B), the Group recognises Breakage in the month after sale. Each quarter the Group reviews its corporate breakage estimates and post true-ups/true-downs for any material variances from our initial estimates.
(c)Completion EBITDA must be calculated using the EBITDA derived from the Completion Accounts, excluding Breakage for Gift Cards sold in the period commencing on 1 January 2022 and ending on the Effective Time.
(d)December 22 Breakage (First Estimate), December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate), December 22 Breakage (Final) and Final Breakage Amount based on actual Breakage data to the extent that it is available and forecast data for unexpired cards.
(e)December 22 EBITDA (Base) must be calculated using the EBITDA derived from the December 22 Accounts (and having regard to the Completion EBITDA, including the same normalisations as in the Completion EBITDA), excluding December 22 Breakage.
(f)December 22 EBITDA (Second Estimate), December 22 EBITDA (Third Estimate) and December 22 EBITDA (Final) must all be calculated using the December 22 EBITDA (Base) adjusted to include the following:
(i)December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate) or December 22 Breakage (Final), as appropriate; and
(ii)changes to Commissions based on the quantum of the December 22 Breakage (Second Estimate), December 22 Breakage (Third Estimate) or December 22 Breakage (Final), as appropriate.
(g)When calculating each of December 22 EBITDA (Second Estimate), December 22 EBITDA (Third Estimate) and December 22 EBITDA (Final), the only variables that will change from the December 22 EBITDA (Base) will be changes in the calculation of December 22 Breakage and the corresponding changes to commissions as a result of such changes to December 22 Breakage.
(h) Breakage and Commission Worked Example
(i)The Breakage estimates have a direct impact on the Commission estimates as follows:
(ii)There are two estimates in the Group accounts posted at month end:
(A)Breakage equalling estimated balance left on Gift Cards at expiration, less 10% GST; and
(B)Commission equalling estimated commission revenue earned on Gift Cards sold during the period, calculated on specific cards at a rate agreed to in specific partner agreements.
(iii)Example: If Breakage is estimated at 20%, then the estimated commission revenue is calculated on 80% of the Gift Cards. At the end of the 3-year period, if Breakage is actually 18%, then 82% of the Gift Cards would have earned commission revenue at the rates specific to those particular cards and partners.
(iv)At the end of the Gift Card lifecycle (3 years), both of the above estimates will become actuals and an adjustment will occur.
3 Breakage Brief
Card Compliant must be instructed to prepare its reports on December 22 Breakage using Card Compliant’s standard methods and practices with consideration of the following, but acknowledging that Card Compliant has final determination of its calculations and report:
(a) the differences between “grocery” and “corporate/B2B” sales;
(b)each product channel based on the information provided in a Card Compliant program profile, which identifies the specific characteristics of each product and/or channel (see example as set out in document 09.02 in the Data Room);
(c)all card data for the relevant period as compiled by the Company and reviewed by the Buyer in accordance with standard card compliant ETL specifications (see example as set out in document 09.03 in the Data Room);
(d)the specific transaction code mapping schedule provided by the Company and reviewed by the Buyer identifying the balance and non-balance affecting transactions; and
(e) the Australian market and its specific characteristics.
Clause 1 of the SSA relevantly defines the following terms:[13]
[13]Defined terms not relevant to this proceeding have been excluded. Ellipses indicating those exclusions have been omitted for readability.
In this agreement, unless the context otherwise requires:
2nd FP Notice has the meaning given in clause 7.11.
Accounting Standards means:
(a)the requirements of the Corporations Act for the preparation of financial reports; and
(b)to the extent not inconsistent with paragraph (a), generally accepted accounting principles and practices in Australia for a period of at least 12 months before Completion for a business of the size conducted by the Group.
Accounts means:
(a)the unaudited consolidated balance sheet of the Company as at the Accounts Date; and
(b)the unaudited profit and loss accounts for the period from 1 June 2021 to 30 June 2022 a copy of which is listed as document 03.01.02 in the Data Room Index.
Accounts Date means 30 June 2022.
Action means an action, investigation, inquiry, prosecution, litigation, proceeding, arbitration, mediation or dispute resolution process.
Actual Net Debt means Net Debt as at the Effective Time, as set out in the final Completion Statement and as adjusted in accordance with clause 5 (if applicable).
Actual Working Capital means Working Capital as at the Effective Time, as set out in the final Completion Statement and as adjusted in accordance with clause 5 (if applicable).
Breakage means the amount of value loaded on to a Gift Card which is forfeited for use by a Gift Card holder as a result of the expiry of the Gift Card.
Breakage Brief means the instructions to Card Compliant to be given by the Buyer for the reports for Breakage in clause 7 accounting for paragraphs (b) and (d) of Part 2 of Schedule 7, as set out in Part 3 of Schedule 7.
Breakage Differential Amount means the difference between the Completion Breakage Amount and the Final Breakage Amount and:
(a)if the Completion Breakage Amount is higher than the Final Breakage Amount shall be expressed as a positive amount; and
(b)if the Completion Breakage Amount is less than the Final Breakage Amount shall be expressed as a negative amount.
Business Day means a day on which banks are open for business in Melbourne, Australia, other than a Saturday, Sunday or public holiday in Melbourne, Australia.
Buyer Group means the Buyer and each of its Related Bodies Corporate (other than the Group Members) and Buyer Group Member means any member of the Buyer Group.
Cash means, in relation to each Group Member, the aggregate of its cash (whether in hand or credited to any account with any banking, financial, lending or other similar institution or organisation), including all interest accrued thereon, as at the Effective Time and any other amounts that constitute “cash” in accordance with the line items set out in the Proforma Completion Balance Sheet, based upon the appropriate bank account reconciliation where the cash balance represents the “book” balance (as opposed to the “bank” balance). To avoid double counting, cash excludes any amount already categorised as Debt.
Commission means commission earned by the Group as recorded in the general ledger of the Group with account number 205.
Company means TCN Group Pty Limited ACN 626 501 568.
Completion means completion of the Transaction in accordance with clause 4.
Completion Breakage Amount means the Breakage of the Group as at the Effective Time as set out in the Completion Accounts prepared in accordance with clause 7.1.
Completion Date means the date of this agreement.
Completion Accounts means the
(a)the unaudited consolidated balance sheet of the Company as at the Effective Time; and
(b)the unaudited profit and loss accounts for the period from 1 January 2022 to the Effective Time.
Completion EBITDA means the EBITDA for the period from 1 January 2022 to the Effective Time excluding Breakage in respect of that period, calculated in accordance with clause 7.1.
Completion Payment means $75,000,000.
Completion Statement means the statement setting out Actual Working Capital and Actual Net Debt to be prepared and finalised pursuant to clause 5 and in accordance with the principles, policies and procedures set out in Schedule 6.
Corporations Act means the Corporations Act 2001 (Cth).
CY22 means the period commencing on 1 January 2022 and ending on 31 December 2022, inclusive.
Data Room means the virtual data room maintained through Ansarada entitled “Project Bright”, as at 5pm on the date of this agreement.
Data Room Index means the index set out in Part A of Schedule 12.
Debt means the aggregate amount of all financial indebtedness of the Group as at the Effective Time, being the aggregate of the following:
(a)all loans or other financing liabilities, including overdrafts, from Third Parties (including any accrued but unpaid fees, break costs and charges);
(b)any obligations in respect of dividends or other distributions declared but not paid as at the Effective Time;
(c) shareholder loans and any accrued interest;
(d) any outstanding Transaction Costs;
(e)any other amounts that constitute “debt” in accordance with the line items set out in the Proforma Completion Balance Sheet, but which are not already included in items (a) to (d) above. To avoid double counting, Debt specifically excludes any amount already defined as Cash. In the circumstance where a debt amount is a debit balance on the Group’s balance sheet, the amount will be treated as a negative Debt amount and in the circumstance where a debt amount is a credit balance on the Group’s balance sheet, the amount will be treated as a positive Debt amount; and
(f)any obligation of the Company for financial indebtedness that is due and payable as at Completion and not otherwise included in Working Capital or the Pro Forma Completion Balance Sheet, in each case, other than to the extent such amount is paid out or discharged at Completion.
December 22 Breakage (First Estimate) means the estimated Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.2 and Schedule 7.
December 22 Breakage (Second Estimate) means the estimated Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.3 and Schedule 7.
December 22 Breakage (Third Estimate) means estimated Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.11 (a) and Schedule 7.
December 22 Breakage (Final) means the actual Breakage in respect of Gift Cards sold by the Group in CY22 calculated in accordance with clause 7.12(a) and Schedule 7.
December 22 Accounts means the
(a)the unaudited consolidated balance sheet of the Company as at 31 December 2022; and
(b)the unaudited profit and loss accounts for CY22, provided in accordance with clauses 7.2.
December 22 EBITDA (Base) means the EBITDA for CY22, excluding Breakage in respect of Gift Cards sold by the Group in CY22, calculated in accordance with clause 7.2 and Schedule 7.
December 22 EBITDA (Second Estimate) means the EBITDA for CY22, calculated by including December 22 Breakage (Second Estimate) in the December 22 EBITDA (Base), in accordance with clause 7.4 and Schedule 7.
December 22 EBITDA (Third Estimate) means the EBITDA for CY22, calculated by including December 22 Breakage (Third Estimate) in the December 22 EBITDA (Base), in accordance with clause 7.11 (a) and Schedule 7.
December 22 EBITDA (Final) means the EBITDA for CY22, calculated by including December 22 Breakage (Final) in the December 22 EBITDA (Base), in accordance with clause 7.12(a) and Schedule 7.
Deferred FP Amount has the meaning given in clause 7.10(b).
Deferred FP Date has the meaning given in clause 7.10(b).
Deferred Interest Rate means a Simple Interest rate of 5.10%.
Disputed FP Matters has the meaning given in clause 7.8.
EBITDA means earnings before income taxes, interest, depreciation and amortisation of the Group.
Effective Time has the meaning given to the term in paragraph (a) of Part B of Schedule 6.
Final Breakage Amount means (as the context requires) the amount of Breakage of the Group as of Completion:
(a)estimated by Card Compliant LLC under clause 7.2(a)(ii), 7.4(a)(ii), 7.4 or 7.11 (a)(i)(B) (as applicable);
(b) calculated by the Buyer under clause 7.12(a)(i)(B);
(c) determined by the Independent Accountant under clause 7.13; or
(d) determined by agreement of the parties;
Final FP Notice has the meaning given in clause 7.12.
FP Notice has the meaning given in clause 7.4
FP Review Period has the meaning given in clause 7.6.
Further Payment means the amount:
(a) calculated in clause 7.5; and
(b)payable to the Sellers (in their Respective Proportions) in accordance with clause 7.7; or
(c)payable to the Sellers (in their Respective Proportions) as the Further Instalment Payment under clause 7.10, and if applicable, the Deferred FP Amount in accordance with clauses 7.11, 7.12 or 7.14(d), with interest calculated and payable as part of the Further Payment, Further Payment Instalment and/or Deferred FP Amount (as applicable) to the Sellers (in their Respective Proportions) in accordance with clause 7.17.
Further Payment Instalment has the meaning given in clause 7.10(b).
Gift Card means a stored value or prepaid physical card or digital voucher, which, when activated:
(a) has a set dollar amount;
(b)can be used to purchase services or merchandise from a single retailer or multiple retailers in Australia or New Zealand at physical retailing locations or on-line shops;
(c) is not redeemable for cash;
(d) is not reloadable;
(e) is marketed solely as a gift card;
(f) is not a component of another financial product;
(g)prominently displays or permits the prominent display on the card or mechanism either:
(i) the expiration date; or
(ii)the number of months following purchase that such card or mechanism expires (along with room to write the purchase date on such card or mechanism); and
(h)otherwise satisfies the definition of “gift facility” as that term appears in AS/C Corporations (Non-cash Payment Facilities) Instrument 2016/211 (as amended or replaced from time to time).
Governmental Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
Group means the Company and the Subsidiaries, and Group Member means any one of them.
GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply.
GST Act means A New Tax System (Goods & Services Tax) Act 1999 (Cth) and the regulations associated with that Act.
GST Law has the same meaning as in the GST Act.
IA’s FP Report has the meaning given in clause 7.13(b).
Independent Accountant means a qualified and independent Australian chartered accountant appointed jointly by the Sellers and the Buyer or, if they do not agree on the person to be appointed within five Business Days of a party requesting the appointment pursuant to a relevant provision of this agreement, a qualified and independent Australian chartered accountant of not less than 10 years’ standing appointed by the Chair of the Resolution Institute.
Initial Interest Rate means a Simple Interest rate of 3.8%.
Net Debt means in respect of the Group as at the Effective Time, Cash, less Debt, as calculated in accordance with Schedule 6. For the avoidance of doubt, if Cash is greater than Debt, the Net Debt will be a positive amount, and if Cash is less than Debt, the Net Debt will be a negative amount.
Purchase Price means the aggregate of the amounts payable under clause 3.1.
Related Body Corporate means a ‘related body corporate’ as that expression is defined in the Corporations Act.
Respective Proportion means in respect of each Seller:
(a) [Indi] - 46.25%;
(b)[Hopper Nation Pty Ltd ACN 632 534 199 as trustee for the Hopper Nation Trust ABN 54 136 466 248] - 46.25%;
(c) [Emily Hall] - 5%; and
(d) JM - 2.5%.
Sellers FP Report has the meaning given in clause 7.6.
Seller Group means:
(a) the Sellers and their Related Body Corporates; and
(b)any trust that a Seller or a Related Body Corporate of a Seller is the trustee of, and Seller Group Member means any member of the Seller Group.
Seller Group Representative means any representative or adviser of any Seller Group Member and any Related Bodies Corporate of such representative or adviser (or any current or former executive, officer, employee of or contractor to any of them).
Sellers means [Indi], [Hopper Nation Pty Ltd ACN 632 534 199 as trustee for the Hopper Nation Trust ABN 54 136 466 248], [Emily Hall] and JM.
Simple Interest means the amount of interest calculated in accordance with the following formula:
AO x (I ÷ 365) x N
where:
• AO = Relevant amount outstanding on the day of calculation
•I = Initial Interest Rate (0.038) or Deferred Interest Rate (0.0510) (as applicable)
• N = Number of days during which interest is accrued
Transaction means the sale and purchase of the Sale Shares in accordance with this agreement.
Transaction Costs means:
(a)adviser costs, service fees, finder’s fees, escrow fees or other costs or fees relating to the Transaction incurred or payable by any Group Member;
(b)the aggregate amount of any bonuses, incentives, commissions or other fees incurred or payable by any Group Member to any current or former executive, officer, employee of or contractor to any Group Member in connection with the Transaction (including all retention and similar bonuses and any payments for restraint covenants); and
(c)any directors and officers insurance costs incurred or payable by any Group Member in accordance with clause 6.4.
Working Capital means in respect of the Group as at the Effective Time, as calculated in accordance with Schedule 6.
Paragraph (a) of Part B to Schedule 6 of the SSA defines the Effective Time as 30 September 2022.
JM is defined in the list of parties as:
Jonathon Mould
of Unit 405, 71 Abinger Street, Richmond VIC 3121 (JM).
Jonathan Mould was the Chief Financial Officer of TCN between May 2022 and October 2024 and has since been the General Manager of TCN.[14]
[14]CB 151 [4].
B.4 Chronology
On 7 December 2022, the Sellers provided InComm with calculations and documents pursuant to clause 7.1 of the SSA. Relevantly, the calculation of the Completion Breakage Amount pursuant to clause 7.1(a) was $50,467,676.27, the calculation of the Completion EBITDA pursuant to clause 7.1(c) was -$12,949,309.75 and the calculation of the EBITDA pursuant to clause 7.1(d) was $3,887,011.29, with a normalised calculation of $4,741,149.30.[15]
[15]CB 560.
On 3 January 2023, Mr Mould granted Mr Hewitt access to Power BI, which was subsequently revoked on 11 February 2023.[16]
[16]CB 588–91.
On 27 March 2023, Card Compliant produced several PDF reports and spreadsheets relating to the calculation of breakage (March 2023 Card Compliant PDF reports). The reports appeared to cover a transaction period from 15 December 2019 to 31 December 2022.[17] The reports and spreadsheets (converted to PDF) were subsequently provided by InComm to Indi.[18]
[17]CB 592–667.
[18]CB 163–4 [74] item 1. It appears that these documents were provided to Indi with the affidavit of Jonathan Mould dated 31 July 2025.
On 22 July 2023, InComm emailed Indi (and the other Sellers) its calculations and five spreadsheets ‘in respect of reporting under clause 7.2’. The December 22 Breakage (First Estimate) it calculated pursuant to clause 7.2(a)(i) was $23,929,900. The supporting spreadsheet had several tabs, including a ‘Summary’ tab, tabs for specific channels that appeared to summarise calculations from Card Compliant reports[19] (insofar as they included Card Compliant logos) and further tabs that appeared to summarise information regarding other channels. The calculations that appeared to be from Card Compliant were ‘hard-coded’ such that they did not reveal the formulas or underlying data from which the calculations were drawn, and the spreadsheets otherwise did not include the underlying Source Data from which the calculations were purported to have been made.[20] InComm calculated the Breakage of the Group as at the Effective Time pursuant to clause 7.2(a)(ii) as $0.[21] The December 22 EBITDA (Base) was calculated as ‑$24,376,186.[22]
[19]As explained by senior counsel for InComm, the spreadsheet refers to collections of channels as programs, reflecting a difference of nomenclature between TCN and Card Compliant: at Transcript of Proceedings, 84 (Transcript).
[20]CB 678; IND.0001.0002.0093. References in this latter format refer to spreadsheets filed by the parties that do not have a specific page in the CB. See also, IND.0001.0002.0092; IND.0001.0002.0094; IND.0001.0002.0095; IND.0001.0002.0096.
[21]This figure appears to refer to the amount of breakage for Gift Cards that have already expired.
[22]IND.0001.0002.0094.
On 21 August 2023, Indi informed InComm that it disputed the calculations of the December 22 Accounts and the December 22 EBITDA (Base).[23]
[23]CB 670.
In the ensuing months, there was further correspondence between the parties, including an email from Mr Mould to Mr Hewitt on 31 October 2023 that attached Power BI extracts.[24]
[24]CB 677–83.
On 19 February 2024, Card Compliant produced several PDF reports and spreadsheets with calculations of breakage in a similar form to the March 2023 Card Compliant PDF reports (February 2024 Card Compliant PDF reports). The reports appeared to cover a transaction period from 15 December 2019 to 31 January 2024, and large portions of the reports were redacted.[25] The reports and spreadsheets (converted to PDF) were subsequently provided by InComm to Indi.[26]
[25]CB 684–763.
[26]CB 164–5 [74] item 4. It appears that these documents were provided to Indi with the affidavit of Jonathan Mould dated 31 July 2025.
On 22 March 2024, following further correspondence between the parties, Indi emailed InComm that it agreed in principle to calculations regarding the December 22 Accounts and December 22 EBITDA (Base) following amendments to those figures agreed to by InComm. Nevertheless, Indi maintained that InComm had not provided the relevant supporting information, calculations and documentation required by clause 7.2. The email also reiterated InComm’s obligations with respect to clause 7.4 in providing the December 22 Breakage (Second Estimate), the December 22 EBITDA (Second Estimate) and the Further Payment calculation by 27 February 2024.[27]
[27]CB 764–5.
On 26 April 2024, InComm provided six spreadsheets to Indi in purported fulfilment of its obligations pursuant to clause 7.4. One spreadsheet included the calculation of the December 22 Breakage (Second Estimate) pursuant to clause 7.4(a)(i) in its first tab as $24,845,844. Other tabs included in that spreadsheet appeared to summarise calculations from Card Compliant reports relating to particular channels in the same manner as in the spreadsheet provided on 22 July 2023 described at [28] above.[28] A different spreadsheet indicated that the calculation pursuant to clause 7.4(a)(ii) was $184,943,[29] but InComm’s calculations of the December 22 EBITDA (Second Estimate) and Further Payment were not included.[30] Source Data was not included in the spreadsheets or otherwise provided.
[28]IND.0001.0001.0061.
[29]IND.0001.0001.0062. The spreadsheet incorrectly states the relevant clause as clause 7.2(a)(ii) instead of clause 7.4(a)(ii).
[30]See also IND.0001.0001.0063, IND.0001.0001.0064, IND.0001.0001.0065, IND.0001.0001.0066.
By correspondence on 13 June 2024, and subsequently on 7 August 2024, Indi sought further information from InComm pursuant to clause 7.4 in relation to the December 22 EBITDA (Second Estimate) and the December 22 Breakage (Second Estimate).[31]
[31]CB 769–74.
On 22 August 2024, InComm provided an additional eight spreadsheets to Indi. These spreadsheets did not include the Source Data. In its email, InComm stated that its calculation of the Further Payment was $0.[32]
[32]CB 777–8.
On 20 September 2024, Indi sent InComm a letter stating that it considered that the material which InComm had provided with its 26 April 2024 and 22 August 2024 emails did not comply with clause 7.4 for reasons including that it failed to include supporting information, calculations, and documentation. Indi requested that InComm provide the following information pursuant to clauses 7.4 and 7.16:
(a)current versions of the reports provided by Jonathon Mould to Richard Hewitt, attached to Jonathon Mould's email dated 31 October 2023, being the breakage rate per card per channel, spend velocity per card per channel and breakage per denomination per card;
(b) access to Power BI and the Power BI reports to verify Buyer's calculation of the Further Payment;
(c)all reports (including any drafts) procured from Card Compliant, LLC in accordance with clause 7.4(a) of the SSA, for the December 22 Breakage (Second Estimate) and amount of Breakage of the Group as at the Effective Time; and
(d)all correspondence between Card Compliant, LLC and a member of the Buyer Group, the Group, or any of their respective directors, employees, professional advisors or subcontractors, in relation to the SSA, including, without limitation, the preparation and finalisation of the report under clause 7.4(a) of the SSA and the Breakage Brief.[33]
[33]CB 782–4.
Indi’s letter of 20 September 2024 did not concede that InComm had adequately provided an FP Notice pursuant to clause 7.4, but nevertheless, annexed a Sellers FP Report pursuant to clauses 7.6 and 7.8 of the SSA detailing the matters that Indi considered Disputed FP Matters.[34]
[34]CB 784, 786–7.
On 23 October 2024, Indi issued InComm a notice under clause 7.16 of the SSA and requested the same material it had earlier requested in its letter of 20 September.[35]
[35]CB 790–1.
On 15 November 2024, InComm sent Indi a letter in which it stated that it considered it had complied with clause 7.4, but nevertheless attached two additional spreadsheets. It further stated that the requested information sought by Indi in its letter of 20 September 2024 and its correspondence on 23 October 2024 was unreasonable.[36]
[36]CB 831–2.
On 19 November 2024, Card Compliant prepared several PDF reports and spreadsheets with updated calculations of breakage in a similar form as the March 2023 Card Compliant PDF reports and the February 2024 Card Compliant PDF reports (collectively, the Card Compliant PDF reports). The reports appeared to cover a transaction period from 15 December 2019 to 31 August 2024, and large portions of the reports were redacted.[37] Those reports and spreadsheets (converted to PDF) were also subsequently provided by InComm to Indi.[38]
[37]CB 833–914.
[38]CB 166, [74] item 8. It appears that these documents were provided to Indi with the affidavit of Jonathan Mould dated 31 July 2025.
On 11 December 2024, Indi commenced this proceeding by originating motion.[39]
[39]CB 1–4.
On 30 January 2025, Indi informed InComm that the ‘Disputed FP Matters’ set out in the Sellers FP Report remained unresolved 20 business days after its delivery. Consequently, there was a Deferred FP Amount and clause 7.11 of the SSA applied.[40]
[40]CB 919.
On 25 February 2025, InComm sent Indi a letter in which it stated:
The actual unspent balance on all TCN gift cards sold during the 2022 calendar year as at 17 February 2025 is $31,730,745. Applied net of GST, that actual breakage amount is $28,846,132.[41]
[41]CB 920.
The letter enclosed a Power BI extract which it said evidenced its calculation of actual breakage, and went on to calculate the Further Payment as nil.[42]
[42]CB 921; IND.0001.0004.0259.
On 27 February 2025, InComm sent an email to Indi with six spreadsheets which it described as the ‘Third Estimate’ pursuant to clause 7.11, and which, in effect, purported to constitute the 2nd FP Notice.[43] The calculation of the Further Payment was again nil. A spreadsheet concerning the breakage calculation included tabs that appeared to be Card Compliant extracts in a similar manner as the spreadsheets provided on 22 July 2023 and 26 April 2024 described at [28] and [33] above[44] (collectively, the purported Card Compliant reports).
[43]CB 923–4.
[44]IND.0002.0007.0093. See also IND.0002.0007.0091, IND.0002.0007.0092, IND.0002.0007.0094, IND.0002.0007.0095, IND.0002.0007.0096.
On 4 March 2025, Indi sent an email to InComm. The email noted that in the material provided by InComm to Indi pursuant to the relevant subclauses of clause 7, there were differences in Issue Amounts — the value of gift cards sold in CY22 — across the material where the figure should be static. It sought further information about these discrepancies.[45]
[45]CB 927. It appears clear that Issue Amounts refers to the value rather than the number of gifts cards sold in CY22, despite the following ambiguous exchange in the cross-examination of Mr Mould. ‘The issue amounts are amounts of cards that have been issued and the value of those cards in the calendar year 2022. Correct?---Yes, yes’: at Transcript 119.1–3.
The next day, Indi sent another email to InComm which attached a notice pursuant to clause 7.16 of the SSA seeking the provision of information relating to the discrepancies identified in the 4 March 2025 email. It stated as follows:
By correspondence dated 4 March 2025, Indi notified InComm that it had identified inconsistencies in the Issue Amounts (as defined in the 4 March 2025 letter):
(a) underlying the First Estimate;
(b) provided by InComm in October 2023;
(c) underlying the FP Notice;
(d) provided by InComm in August 2024;
(e) provided by InComm by correspondence dated 25 January 2025; and
(f) underlying the 2nd FP Notice,
and has requested an explanation for these inconsistencies.
Pursuant to clause 7.16 of the SSA, the Buyer is to procure that the Company provide all books, correspondence, accounts or other records that support the explanation requested (the Documents). This request includes any source data or document referred to in the response to the 4 March 2025 letter.[46]
[46]CB 930–2.
During March 2025, further emails were exchanged between Indi and InComm regarding the provision of information under the SSA.[47]
[47]CB 940–6.
On 25 March 2025, without conceding the validity of the 2nd FP Notice purportedly issued by InComm on 27 February 2025, Indi issued to InComm a ‘Sellers FP Report’ pursuant to clauses 7.6, 7.8 and 7.11 of the SSA detailing the matters in the 2nd FP Notice which were disputed.[48] Those matters have not subsequently been resolved.
[48]CB 950–7.
On 3 April 2025, and subsequently on 7 April 2025, Indi instructed Ryan Carruth, an accountant, to act as an ‘Independent Adviser’ in preparing a report (the Carruth Report) setting out the following:
(a) whether you have sufficient information to review the Second Estimate and FP Notice and the Third Estimate and 2nd FP Notice; and
(b) if the answer to (a) is not yes and you require any further information to review the Second Estimate and FP Notice and the Third Estimate and 2nd FP Notice, please identify the additional material that you require, along with your reasons for requesting that material.[49]
[49]CB 99.
On 15 April 2025, Indi provided InComm with the Carruth Report. Indi issued a notice to InComm pursuant to clause 7.16(b) of the SSA, which requested the documents referred to in Annexure D of the Carruth Report, except for the Completion Statement as at 30 September 2022.[50] Annexure D of the Carruth Report includes the table reproduced below:[51]
[50]CB 1113–7.
[51]CB 125.
a) Completion Statement, Accounts and Completion EBITDA 1 Completion Statement as at 30 September 2022 To verify the calculation of Completion Breakage Amounts of $50,467,676 stated in the 2nd FP Notice. 2 General ledger entries and underlying transactional records (including sample invoices and purchase orders) supporting the Completion Accounts To substantiate the reported revenue and expense figures in the Completion Accounts and verify the integrity of the Completion EBITDA 3 Documentation supporting the calculation of Completion EBITDA and Completion Breakage Amount including but not limited to:
(a) Explanatory schedules and working papers supporting the calculation of Completion EBITDA, including any assumptions, methodologies, or adjustments applied;
(b) A reconciliation between the breakage schedules and the figures reported in the Completion Accounts
To undertake a complete and informed review of the Completion Accounts and verify whether the Completion EBITDA and Completion Breakage Amount have been calculated in accordance with the methodology prescribed in the Share Sale Agreement. b) December 2022 Accounts for Second and Third Estimate 4 General ledger entries and underlying transactional records (including sample invoices and purchase orders) supporting the December 2022 Accounts (Second and Third Estimate) To verify the completeness of these accounts and the accounting methodology applied to them 5 Confirmation that the December 2022 Accounts were prepared by Mr Jonathon Mould in consultation with Walker Wayland, in accordance with Clause 7.2(c) of the SSA To confirm that the accounts were prepared in accordance with the requirements of the SSA c) December 2022 EBITDA for Second and Third Estimate 6 General ledger entries and underlying transactional records (including sample invoices and purchase orders) supporting the December 2022 EBIDTA (Second and Third Estimate) To substantiate the reported revenue and expense figures and verify the integrity of the December 2022 EBITDA. 7 Documentation supporting the calculation of December 2022 EBITDA and December 2022 Breakage Amount including but not limited to:
(a) Explanatory schedules and working papers supporting the calculation of December 2022 EBITDA, including any assumptions, methodologies, or adjustments applied;
(b) A reconciliation between the breakage schedules and the figures reported in the December 2022 Accounts
To undertake a complete and informed review of the December 2022 Accounts and verify whether the December 2022 EBITDA have been calculated in accordance with the methodology prescribed in the Share Sale Agreement. 8 Underlying documents detailing the normalisation adjustments made to the EBITDA figures and the reconciliations of the normalisation adjustments To review the normalisation adjustments required for the Completion EBITDA and December 2022 EBITDA calculations. This is to confirm that all one-off, non-recurring, or extraordinary items have been appropriately adjusted, and to ensure the final EBITDA figures are prepared in accordance with the agreed accounting principles and standards and to independently verify the normalisation adjustments made. d) December 2022 Breakage for Second Estimate and Third Estimate 9 The original reports and working files prepared by Card Compliant LLC, including all documentation detailing the assumptions, input data, and methodology used to derive breakage rates. To conduct a thorough and informed review of the breakage estimate and to understand how expiry patterns, breakage rates were determined. 10 Clarification as to which card products and issue amounts were included or excluded from Card Compliant LLC’s analysis. To understand the scope and basis of Card Compliant LLC’s breakage calculations as they relate to the Further Payment. 11 Underlying documents detailing the assumptions, input data, and methodology used to derive breakage rates and spend velocity. To conduct a thorough and informed review of the breakage estimate and to understand how expiry patterns, breakage rates, and spend velocity were determined. 12 Commission model with detailed calculations based on December 2022 Breakage, including supporting documents such as commission policies and rates applicable to sales in calendar year 2022. To understand the commission calculations and how it reflect the impact of the Breakage. Supporting documents detailing the commission rates and policies applicable in 2022 are used to verify the methodology and to determine the appropriate commission adjustments based on the breakage estimates. e) Calculation of the Breakage Differential Amount 13 A copy of the Completion Statement, accompanied by all underlying source/support data and assumptions to verify the Completion Breakage Amount To verify the Completion Breakage Amount used in the FP Notice and 2nd FP Notice. 14 The underlying documentation supporting the Final Breakage Amount, which includes but not limited to the items listed in item 9 above relating to Card Compliant LLC’s report and calculations To verify the calculation of the Final Breakage Amount, which is derived from the breakage estimate.
On 16 April 2025, InComm sent a letter to Mr Hewitt, responding to the Disputed FP Matters of the Sellers FP Report dated 25 March 2025. It annexed several documents, including an email from Mr Mould to Olivia Parsons of Card Compliant, which attached instruction profiles for the production of Card Compliant reports.[52]
[52]CB 1118–38.
On 2 July 2025, Mr Carruth provided a supplementary report, based on instructions received from Indi on 30 June 2025 as to the documents he required to advise Indi in respect of its submissions for an Independent Accountant Dispute Resolution process and why he required those documents. The documents Mr Carruth required were largely the same as those identified in the Carruth Report. The supplementary report was provided to InComm on the same day.[53]
[53]CB 128, 149.
B.5 The evidence
The evidence before the Court included:
(a) an affidavit of Richard Hewitt dated 11 December 2024 and its exhibits;
(b) a second affidavit of Richard Hewitt dated 27 June 2025 and its exhibits;
(c) an affidavit of Ryan Carruth dated 2 July 2025 and its exhibits;
(d) an affidavit of Jonathan Mould dated 31 July 2025 and its exhibits;
(e) further documents contained in the supplementary court book.
The only witness required for cross-examination was Mr Mould.
C. ISSUES IN DISPUTE
The particular issues in dispute in this proceeding may be summarised as follows:
(a) Is Indi entitled to the Source Data, the Breakage Brief, any communications between InComm and Card Compliant, and all documents relied upon to prepare the FP Notices pursuant to clauses 7.2, 7.4 and 7.11 of the SSA?
(b) Is Indi entitled to the information, including underlying ledgers and sample invoices, relating to the calculation of the December 22 EBITDA (Base) pursuant to clause 7.2?
(c) Has InComm provided the Card Compliant reports to Indi pursuant to clauses 7.2(a), 7.4(a) and 7.11(a)?
(d) Is Indi otherwise entitled by clause 7.16(a) to the categories of information requested under clause 7.2, 7.4 or 7.11 if they do not fit within the terms of those clauses?
(e) Is Indi entitled to the documents it has requested pursuant to clause 7.16(b), which its adviser, Mr Carruth, says he needs to conduct a review of the calculations?
(f) Is Indi entitled to current versions of Power BI exports attached to the email of 31 October 2023 from Mr Mould to Mr Hewitt?
D. SUBMISSIONS
D.1Is Indi entitled to Source Data, the Breakage Brief, communications between InComm and Card Compliant, and documents relied upon to prepare the FP Notices, pursuant to clauses 7.2, 7.4 and 7.11?
In oral submissions, Indi framed the dispute as ‘less of a construction issue’ but a question of whether InComm had provided the documents to satisfy the terms of clauses 7.2, 7.4 and 7.11. Senior counsel for Indi noted that Mr Mould conceded in cross-examination that the Card Compliant reports were dependent on the Source Data extracted from TCNAdmin, and that the material had not been provided to Indi in relation to both clauses 7.4 and 7.11.[54]
[54]Transcript 121.28–122.30, 123.1–27, 141–144.
Indi submitted that the failure to provide the Source Data was especially problematic in circumstances where there was a discrepancy of Issue Amounts in the spreadsheets provided by InComm across the different FP Notices of some $1.5 million. Senior counsel for Indi referred to the cross-examination of Mr Mould in which he explained that the discrepancy resulted from ‘kick-outs’, which were cards not included in the relevant calculations because of inconsistencies in the data relating to them. However, Indi observed that in the Card Compliant PDF reports, kick-outs were said to total some $21,000. These discrepancies raised a number of questions that required the underlying Source Data to answer.[55]
[55]Transcript 152–154.9.
Indi’s submissions relating to the provision of Source Data pursuant to clause 7.2 were more limited. Senior counsel for Indi submitted that Indi was still entitled to the supporting material under that clause, and it was relevant in circumstances where Issue Amounts had been changing over time and therefore would ‘inform how [Indi] analysed the later material’.[56]
[56]Transcript 166–7.
In relation to the Breakage Brief and other communications with Card Compliant, Indi submitted that InComm had not provided this information as was required by the terms of clauses 7.2, 7.4 and 7.11. It submitted that the Breakage Brief ought to include Source Data.[57]
[57]Plaintiff’s outline of written submissions filed 15 September 2025, 17–8 [59]–[61] (Plaintiff’s written submissions).
In relation to the provision of documents underlying the preparation of the FP Notices, Indi submitted that this was required pursuant to clauses 7.4 and 7.11 and that preparation of the FP Notices would have necessitated the following:
(a) review of the estimated revenue and breakage for each channel using sales and spend data (broken down by month) extracted from TCNAdmin and Power BI;
(b) review of sales and spend data for each channel (broken down by month) extracted from TCNAdmin and Power BI, including channel specific data, and for channel ‘B2B’, client specific data;
(c) application of one or more methodologies for the calculations, which methodology ought be discernible from the underlying formula in spreadsheets (i.e. spreadsheets that are not hard-coded).[58]
[58]Plaintiff’s written submissions, 19 [68].
InComm submitted that on a proper construction, the words ‘supporting information, calculations and documentation’ in clauses 7.2, 7.4 and 7.11 do not embrace Source Data.[59]
[59]Transcript 171.9–19.
InComm submitted that clause 7 of the SSA sets out a five-stage process for the calculation of the Further Payment. The first stage involves clause 7.1 and its obligations on the Sellers to provide calculations relevant to Completion. The second stage involves the provision of calculations and the review process provided for under clauses 7.2 and 7.3. The third stage involves the calculations and information that InComm must provide under clause 7.4, including the calculation of the Further Payment pursuant to clause 7.5, and the process for review and dispute provided for under clauses 7.6 to 7.10. The fourth stage is a similar process to the third, with the calculations and information to be provided under clause 7.11, and the same clauses 7.5 to 7.10 being applied for the calculation, review and dispute process. The fifth and final stage is the Final FP Notice calculation under clause 7.12, which then flows through to the Independent Account dispute resolution process under clauses 7.13 and 7.14.[60]
[60]Transcript 37.20–69.30.
InComm noted that the structure of this staged process involves a limited window of time at the third and fourth stages — namely, 20 business days for Indi to review the material provided under clause 7.4 or 7.11 and respond indicating agreement or non-agreement and a further 20 business days for the parties to engage in good-faith discussions to resolve any non-agreement.[61]
[61]Transcript 172.18–30, 174.10–20.
InComm further noted that the parties elected to have Card Compliant provide a calculation of estimated breakage at the second, third and fourth stages. InComm referred to Part 3 of Schedule 7 to the SSA, in which the Breakage Brief was defined, and pointed in particular to the phrase ‘acknowledging that Card Compliant has final determination of its calculations and report’. InComm submitted that the parties thereby acknowledged that Card Compliant would finally determine the matters comprising its calculations and report for the purposes of clauses 7.2, 7.4 and 7.11.[62]
[62]Transcript 175.16–177.9. InComm submitted that the final sentence in each of clauses 7.2, 7.4 and 7.11(a) which provides that ‘[t]he buyer will take into consideration the amounts provided for in the report prepared by Card Compliant’ does not add much ‘to the constructional equation’: at Transcript 177.9–28.
Drawing these two contextual observations together, InComm submitted that clause 7 establishes an expedient process in which Card Compliant’s estimates are provisional but create the possibility of an early Further Payment if the parties reach agreement within the limited review windows at the third or fourth stage. However, InComm characterised stage five as the ‘main game’ — the point at which final breakage numbers would ultimately be determined. On this construction, Indi had no entitlement to Source Data because the limited review windows had elapsed and Card Compliant was to deliver the relevant calculations over which it had final determination.[63]
[63]Transcript 179.1–180.22.
InComm submitted that although the same obligation to provide ‘information, calculations and documentation’ was included in clause 7.1, that was not to be read in the same way as it ‘has a different context’.[64]
[64]Transcript 180.23–181.21.
InComm further submitted that its construction of the obligation was supported by the fact that it would have been simple for the parties to have included a reference to Source Data explicitly in clauses 7.2, 7.4 and 7.11 but they did not do so.[65]
[65]Transcript 184.29–185.8.
InComm submitted that there were also no relevant communications to Card Compliant in writing that were not produced. InComm had provided to Indi on 16 April 2025 copies of relevant instructions it had provided to Card Compliant which were in the same form as those that had been provided to InComm in the data room for the sale of TCN. Senior counsel for InComm referred to the evidence of Mr Mould in which he stated the relevant information that had been provided to support this proposition.[66] In the alternative, InComm submitted that there was no contractual obligation to provide such communications. It would have been easy for the parties to have explicitly required the provision of the communications with Card Compliant in the SSA if they had wished.[67]
[66]Transcript 205.20–206.26; CB 164 [74] item 3.
[67]Defendant’s outline of opening submissions filed 22 September 2025, 18–9 [79]–[80] (Defendant’s written submissions).
InComm submitted that Mr Mould had also provided all other information on which InComm relied to prepare the FP notices.[68] Indi had not requested any specific information other than Source Data that had not been provided, and Source Data was not required to be provided for the reasons already advanced.[69]
[68]Transcript 224.2–6; CB 156–7 [35]–[37], 166 [74] item 7, 167 [74] item 11.
[69]Transcript 223.29–224.24.
In reply to InComm’s submission that the reference to ‘supporting information, calculations and documentation’ in clauses 7.2, 7.4 and 7.11 did not embrace Source Data, Indi submitted that there was an equivalent reference in clause 7.12. Clause 7.12 required InComm to prepare the Final FP Notice itself, and such preparations would necessarily be made on the basis of Source Data. Indi therefore submitted that if equivalent phrases in the contract are to have the same meaning, then the references in clauses 7.2, 7.4 and 7.11 must also embrace Source Data.[70]
[70]Transcript 232.2–235.25.
Indi further submitted in reply that it faced an ‘information asymmetry’ which required provision of Source Data to rectify. Without this information, Indi would be disadvantaged in preparing submissions to the Independent Accountant within the limited time frames prescribed by the SSA.[71]
[71]Transcript 237.25; Plaintiff’s written submissions, 14 [50].
As to the provision of communications between InComm and Card Compliant, Indi submitted that it was ‘unquestionable that instructions were provided by InComm to Card Compliant’. Indi was seeking information relating to the production of reports and calculations pursuant to clauses 7.2, 7.4 and 7.11, which must include such instructions.[72]
D.2Is Indi entitled to the information, including underlying ledgers and sample invoices, relating to the calculation of the December 22 EBITDA (Base) pursuant to clause 7.2?
[72]Transcript 228.8–26.
InComm submitted that the parties had agreed to the December 22 EBITDA (Base) and ‘nothing in the evidence [was] said about a need to have a wholesale audit of the [December 22] EBITDA (Base)’.[73]
[73]Transcript 214.4–13.
Indi submitted that it was not necessary to resolve the question of whether Indi had agreed to InComm’s calculation of the December 22 EBITDA (Base), because Indi’s entitlement to the underlying material was independent of any agreement about the figure. Indi’s access to that material remained relevant insofar as the December 22 EBITDA (Base) was a figure that carried forward through the Further Payment calculation process.[74]
[74]Transcript 156.18–157.17.
Moreover, the temporal sequence supports Indi’s construction. Indi made requests for information under clause 7.16(a) both within and after the initial review periods. The initial requests were made promptly when Indi determined that the material provided under clauses 7.4 and 7.11 was insufficient. The fact that InComm refused to provide the requested material, necessitating this proceeding, does not transform Indi’s timely requests into tardy ones.
F.4.3 The concept of flow-through between stages
Thirdly, the commercial operation of clause 7 supports an interpretation that permits ongoing access to information.
The December 22 EBITDA (Base) calculated at the clause 7.2 stage is expressly carried forward into all subsequent calculations under clauses 7.4, 7.11 and 7.12. Similarly, breakage estimates are refined through successive stages as more data becomes available.
This structure of ‘flowing through’ figures from earlier stages to later stages means that information and calculations from earlier stages remain relevant throughout the entire process. Indi’s ability to review and agree (or dispute) calculations at later stages necessarily depends upon being able to verify the correctness of foundational figures from earlier stages.
If Indi discovered an error in the December 22 EBITDA (Base) while reviewing the December 22 EBITDA (Second Estimate), it would be entitled to raise that error as a Disputed FP Matter even though the ‘stage’ for calculating the December 22 EBITDA (Base) had notionally passed. This demonstrates that the obligations to provide supporting information at earlier stages are not extinguished simply because time has moved on.
Clause 7.16(a) facilitates this ongoing review function by ensuring Indi can access relevant records as needed to verify calculations that span multiple stages.
F.4.4 Reasonableness of Indi’s requests
InComm submits that even if clause 7.16(a) remains operative, Indi’s requests are unreasonable.
The reasonableness of specific requests is better addressed in the context of clause 7.16(b) and Mr Carruth’s detailed requests. However, I note that requests for Source Data and Card Compliant reports are plainly reasonable in circumstances where:
(a) these materials are necessary to verify calculations affecting millions of dollars in potential Further Payment;
(b) significant discrepancies have been identified in the materials InComm has provided;
(c) the SSA contemplates detailed review potentially culminating in Independent Accountant determination; and
(d) the materials requested are within InComm’s possession or control through its ownership of TCN.
Nothing in clause 7.16(a) limits reasonable requests to only those materials that InComm was required to provide under clauses 7.2, 7.4 and 7.11. The phrase ‘books, correspondence, accounts or other records relating to the Group’ is deliberately broad. So long as materials are reasonably required for reviewing and determining the FP Notices, they fall within the scope of clause 7.16(a).
I therefore consider that clause 7.16(a) provides an alternative basis for Indi’s entitlement to Source Data, the Breakage Brief, Card Compliant reports, communications and documents relied on to prepare the FP Notices. The clause remains operative and Indi’s requests are reasonable.
F.5 Is Indi entitled to the material sought by Mr Carruth pursuant to clause 7.16(b)?
Clause 7.16(b) requires InComm to procure TCN to ‘provide or ensure the provision of all information and assistance that may reasonably be requested by the advisers of the Buyer and the Sellers in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice’.
Indi relies on the Carruth Report and supplementary report as articulating the information Mr Carruth requires to conduct his review. The categories of documents sought by Mr Carruth are set out in Annexure D to the Carruth Report, reproduced at paragraph [51] above.
F.5.1 Has clause 7.16(b) expired?
As with clause 7.16(a), InComm submits that clause 7.16(b) has expired because the review periods for the FP Notices have passed. For the reasons set out above in relation to clause 7.16(a), I reject this submission.
The clause expressly extends to ‘the preparation of, review of, and agreement to’ the notices. The process of reaching agreement is ongoing and will continue through good faith negotiations and potentially Independent Accountant determination. Mr Carruth is Indi’s adviser for this process and is entitled to request information reasonably required for that purpose.
Indeed, Mr Carruth’s supplementary report was prepared for the specific purpose of advising Indi in respect of submissions to an Independent Accountant. This falls squarely within the purpose identified in clause 7.16(b).
F.5.2 Is Mr Carruth appropriately qualified?
InComm challenges Mr Carruth’s expertise, suggesting he lacks specific experience in breakage calculations and is primarily an audit specialist.
This submission does not withstand scrutiny. Mr Carruth is a chartered accountant with extensive experience in business valuations, financial investigations and dispute resolution. His role is not to independently calculate breakage using his own methodology, but rather to review whether InComm’s calculations have been performed correctly and in accordance with the SSA.
This is quintessentially work for which an experienced accountant is qualified. It requires understanding financial statements, verifying calculations, checking that methodologies align with contractual requirements, and identifying discrepancies or errors. Mr Carruth’s expertise is appropriate for these tasks.
Moreover, the SSA itself contemplates that accountants will review these calculations. Clause 7.2(c) requires the December 22 Accounts to be prepared ‘by JM... in consultation with Walker Wayland’. Clause 7.13 provides for disputes to be determined by an ‘Independent Accountant’. The parties clearly intended that accountants would be involved in reviewing and determining the calculations in issue.
F.5.3 Are Mr Carruth’s requests reasonable?
The more substantial question is whether the specific categories of documents requested by Mr Carruth are reasonable within the meaning of clause 7.16(b).
Clause 7.16(b) requires provision of ‘all information and assistance that may reasonably be requested by the advisers of the Buyer and the Sellers in relation to the preparation of, review of, and agreement to, the draft and final (as applicable) FP Notice and Final FP Notice’.
The test is therefore whether the information Mr Carruth has requested:
(a) is reasonably required for the purpose of preparing for, reviewing, or reaching agreement on the FP Notices; and
(b) is not unreasonable having regard to the burden on InComm/TCN in providing it.
‘Reasonable’ in this context must be assessed by reference to:
(a) the nature and complexity of the calculations being reviewed;
(b) the amount at stake (potentially many millions of dollars in Further Payment);
(c) the information actually required to conduct an informed review;
(d) the burden on InComm/TCN in providing the information; and
(e) the specificity and clarity of the requests.
F.5.4 General principles applicable to all items
The 14 items in Mr Carruth’s table fall into several categories:
(a) Items requiring foundational accounting records (Completion Statement, general ledgers, accounts);
(b) Items requiring working papers and calculations showing how EBITDA and breakage figures were derived;
(c) Items requiring Card Compliant reports and related documentation;
(d) Items requiring specific supporting documentation (commission models, normalisation adjustments, transaction code mappings).
These are all standard categories of financial documentation that would be maintained in the ordinary course of business by a company of TCN’s nature and size. Mr Mould conceded in cross-examination that general ledgers are readily available. InComm has not provided evidence that compliance with these requests would be unduly burdensome or impractical.
The requests are directed to verifying calculations that determine the Further Payment, involving potentially many millions of dollars. They represent the type of information that an experienced forensic accountant would properly require to conduct a thorough and informed review in order to advise Indi on whether to agree to the FP Notices or what Disputed FP Matters to raise.
F.5.5 Analysis of specific items
F.5.5.1 Items 1-3 (Completion Statement, Accounts and EBITDA)
These items seek the Completion Statement, general ledgers, underlying transactional records, and working papers supporting the Completion Accounts, Completion EBITDA and Completion Breakage Amount.
These are plainly reasonable requests for an adviser reviewing the FP Notices. The Completion Breakage Amount is a critical component of the Breakage Differential Amount calculation, which directly affects the Further Payment under the formula in clause 7.5. To advise Indi on whether InComm’s calculation of the Further Payment is correct, Mr Carruth must be able to verify the foundational figures that feed into that calculation. Without access to the Completion Statement, the underlying accounts, and the working papers showing how these figures were calculated, Mr Carruth cannot properly advise Indi on whether to agree to the FP Notices.
General ledgers are essential to substantiate reported figures. Mr Mould conceded they are readily available, indicating that provision would not be burdensome. The request for underlying transactional records is qualified by the term ‘sample’, indicating that exhaustive production is not sought — only sufficient documentation to verify the accuracy of the ledger entries and the consistent application of accounting policies.
F.5.5.2 Items 4-5 (December 2022 Accounts)
Item 4 seeks general ledgers, underlying transactional records, and supporting documentation for the December 2022 Accounts.
For the same reasons as Items 1-3, this is reasonable. The December 2022 Accounts form the foundation for December 2022 EBITDA (Base), which is carried forward through all subsequent Further Payment calculations under clauses 7.4, 7.11 and 7.12. An adviser reviewing the FP Notices must be able to verify the accuracy of this foundational figure. Without the underlying accounts and ledgers, Mr Carruth cannot properly advise Indi on whether the Further Payment has been correctly calculated.
Indi no longer seeks Item 5, which related to confirmation regarding preparation of the December 2022 Accounts. Accordingly, I need not address it further.
F.5.5.3 Items 6-8 (December 2022 EBITDA)
These items seek general ledgers, underlying transactional records, working papers, and documentation of normalisation adjustments for the December 2022 EBITDA calculations.
December 2022 EBITDA is one of the two principal variables in the Further Payment formula under clause 7.5. To advise Indi on whether to agree to the FP Notices, Mr Carruth must be able to verify this critical figure. This requires access to the general ledgers from which EBITDA is derived, working papers showing how the calculations were performed, and documentation of any normalisation adjustments.
Schedule 7 prescribes specific normalisation adjustments that must be made to EBITDA. These adjustments can materially affect the Further Payment. Documents showing what normalisation adjustments were made, their quantum, and how they were calculated are plainly information that an adviser would reasonably require to verify whether the EBITDA calculations are correct. Without this information, Mr Carruth cannot advise Indi on whether the Further Payment calculation should be accepted or disputed.
F.5.5.4 Items 9-12 (December 2022 Breakage calculations)
These items seek the original Card Compliant reports and working files, clarification of which cards were included/excluded from Card Compliant’s analysis, documentation of assumptions and methodologies and the commission model with supporting documentation.
Breakage is the other principal variable in the Further Payment formula. The accuracy of the breakage estimate is critical to the Further Payment calculation. To advise Indi on whether the breakage figures in the FP Notices are correct, Mr Carruth requires access to this material (to the extent that InComm is in possession of it).
Without this information, Mr Carruth cannot understand how the breakage figures were derived, whether the methodology is sound, or whether errors may have been made. An adviser cannot reasonably be expected to advise a client to agree to a multi-million dollar Further Payment calculation without being able to verify the breakage estimates underlying that calculation.
The request is particularly reasonable given the evidence of discrepancies in Issue Amounts across different FP Notices, unexplained differences between ‘kick-outs’ in various materials, and the absence of clarity about the data and methodology used by Card Compliant.
F.5.5.5 Items 13-14 (Breakage Differential Amount)
These items seek the Completion Statement with underlying source data and assumptions, and documentation supporting the Final Breakage Amount. The Completion Breakage Amount and Final Breakage Amount are the two components of the Breakage Differential Amount calculation under clause 7.4(c), which directly affects the Further Payment. These are foundational figures.
Without this information, Mr Carruth cannot verify the correctness of the Breakage Differential Amount or advise Indi on whether to agree to the FP Notices. These are plainly reasonable requests for an adviser engaged to review complex financial calculations affecting a potential multi-million dollar payment.
F.5.6 Qualification regarding underlying transactional records
Items 2, 4 and 6 request ‘underlying transactional records (including sample invoices and purchase orders)’. The phrase ‘underlying transactional records’ is potentially very broad and could encompass every source document for every transaction. For a business conducting thousands of gift card sales through multiple channels, this could be voluminous.
However, the parenthetical reference to ‘sample’ invoices provides important limitation. A reasonable interpretation is that Mr Carruth requires representative samples across transaction types and channels sufficient to verify that:
(a) ledger entries accurately reflect business transactions;
(b) accounting policies have been consistently applied; and
(c) unusual, material or non-standard transactions are properly documented.
‘Samples’ should be understood as representative examples, not exhaustive production of all transaction records. If the parties cannot agree on an appropriate sampling methodology, they may apply to the Court for directions.
F.5.7 Conclusion
I find that Indi is entitled to the categories of documents set out in Items 1–14 of Mr Carruth’s table (other than Item 5, which Indi no longer seeks), subject to the following qualifications:
(a) ‘Underlying transactional records’ in Items 2, 4 and 6 should be understood as requiring representative samples across transaction types and channels, not exhaustive production of every transaction record;
(b) Sample invoices and purchase orders should be sufficient in number and type to verify ledger accuracy and accounting policy application, but need not encompass every invoice and purchase order for the relevant period;
(c) Item 10 can be satisfied by a document or statement explaining which card products and issue amounts were included or excluded from Card Compliant’s analysis and the reasons for any exclusions.
If the parties cannot agree on an appropriate sampling methodology for underlying transactional records, or if disputes arise about the scope of any item, they may apply to the Court for directions.
The provision of these categories of documents and information is necessary to enable Indi, through Mr Carruth, to conduct the informed and thorough review that clause 7.16(b) contemplates. The requests are reasonable in the context of the potentially substantial Further Payment at stake, the complexity of the calculations involved, and the detailed verification process prescribed by clause 7 of the SSA.
F.6 Is Indi entitled to the Power BI extracts?
Indi’s request for current versions of Power BI extracts attached to Mr Mould’s email of 31 October 2023 raises different considerations.
Power BI is described in the evidence as a third-party platform that aggregates data from TCNAdmin and is used to estimate breakage. The platform provides extracts showing data from various sales channels.
Indi’s primary submission is that, while the connection between Power BI extracts and ‘supporting information’ under clauses 7.2, 7.4 and 7.11 may be less direct, the extracts nonetheless fall within clause 7.16(a) as material that would permit review of the FP Notices.
InComm responds that Card Compliant reports were not based on Power BI extracts and that the SSA does not require provision of Power BI data.
The evidence establishes that Card Compliant reports are based on Source Data from TCNAdmin, not on Power BI extracts. Power BI is an additional tool used by TCN to analyse data and estimate breakage, but it is not part of the chain of calculations required under clause 7.
However, Power BI extracts may, nonetheless, be relevant as ‘supporting information’ in a broader sense. If Power BI was used by InComm/TCN to check Card Compliant calculations or to inform decisions about how to instruct Card Compliant, then Power BI materials could shed light on the calculation process.
The difficulty is that Indi has not clearly articulated what specific purpose the Power BI extracts would serve in reviewing the FP Notices. The request appears somewhat speculative — seeking the material to see whether it might reveal relevant information, rather than identifying a specific gap in the information already required to be provided.
Moreover, Mr Mould provided Power BI extracts to Mr Hewitt in October 2023, and further Power BI extracts were provided in February 2025. Indi now seeks ‘current versions’ of the earlier extracts, but has not explained what additional information current versions would provide beyond what has already been supplied.
On balance, I find that Indi has not established that Power BI extracts constitute information it is entitled to under clauses 7.2, 7.4, 7.11 or 7.16. The extracts are not part of the calculation chain required under clause 7, and Indi has not demonstrated that they are reasonably required for review purposes given the other information to which it is entitled.
If, after receiving the Source Data, Card Compliant reports and other materials to which it is entitled, Indi identifies a specific deficiency that Power BI extracts would address, it may make a further targeted request explaining why those extracts are required. However, at this stage, a general request for Power BI extracts is not sustainable.
I therefore decline to order provision of Power BI extracts.
E. CONCLUSION
For the reasons set out above, I find that:
(a) Indi is entitled to Source Data from TCNAdmin, the Breakage Brief, any communications between InComm and Card Compliant relating to the Card Compliant reports and documents relied on to prepare the FP Notices pursuant to clauses 7.2, 7.4 and 7.11;
(b) Indi is entitled to general ledgers and a reasonable sample of underlying invoices and transactional records relating to the calculation of December 22 EBITDA (Base) pursuant to clause 7.2;
(c) InComm has not provided the Card Compliant reports required under clauses 7.2(a), 7.4(a) and 7.11(a)(i) and Indi is entitled to such reports;
(d) Indi is entitled to the Source Data, the Breakage Brief, Card Compliant reports and related materials, and documents relied on to prepare the FP Notices under clause 7.16(a) as an alternative basis;
(e) Indi is entitled to the categories of documents requested by Mr Carruth pursuant to clause 7.16(b) (other than Item 5, which is no longer sought), subject to reasonable limits on the scope of sampling of transactional records as set out above;
(f) Indi is not entitled to Power BI extracts.
The parties are required to confer and, within fourteen days:
(a) submit a proposed form of order to give effect to these reasons, including as to costs; or
(b) failing agreement, file and serve submissions of no more than 3 pages addressing these matters and attaching their preferred form of order.
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