Maurtray Pty Limited v Pillemer Pty Limited - [2022] NSWSC 1181

Supreme Court

New South Wales

Medium Neutral Citation: Maurtray Pty Limited v Pillemer Pty Limited [2022] NSWSC 1181
Hearing dates: 27, 28, 29 and 30 September and 18 November 2021
Date of orders: 02 September 2022
Decision date: 02 September 2022
Jurisdiction: Equity - Commercial List
Before: Williams J
Decision:
Proceedings dismissed - see paragraph [548].

Catchwords:
CONTRACTS – construction of clause in loan agreement requiring borrower to give to lender certain documents or information “received or accessible by” the borrower – where the sole shareholder and director of the borrower companies was also the chief executive officer (but not the directing mind and will) of another company – held that confidential information of that other company received by its chief executive officer in his capacity as such was not attributed to and was not “received or accessible by” the borrower companies within the meaning of the clause
MISLEADING OR DECEPTIVE CONDUCT – alleged misleading or deceptive express and implied representations – held that alleged representations not proved – alleged misleading or deceptive conduct by silence or partial disclosure – allegations not proved because (inter alia) no reasonable expectation that undisclosed matters would be disclosed

Legislation Cited:
Corporations Act 2001 (Cth), ss 11, 12,183 and 1043A
Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), ss 18, 79, 236

Cases Cited:
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Henville v Walker (2001) 206 CLR 459; (2001) 182 ALR 37; [2001] HCA 52,
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; (2002) 192 ALR 1; [2002] HCA 41
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
McGrath v Stueresteps (2011) 81 NSWLR 690; [2011] NSWCA 315
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Newey v Westpac Banking Corporation [2014] NSWCA 319
Placer (GrannySmith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; (2003) 77 ALJR 768; [2003] HCA 10
Robinson v Harman (1848) 1 Ex 850; 154 ER 363
Ryan Wealth Holdings Pty Ltd v Baumgartner (2018) 131 ACSR 236; [2018] NSWSC 1502
Sanpoint Pty Ltd v V8 Supercars Holdings Pty Ltd (2019) 134 ACSR 424; [2019] NSWCA 5
Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847
Troulis v Vamvoukakis [1998] NSWCA 237
Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrsaptd) (in liq) (No.2) (2011) 297 ALR 56; [2011] FCA 1123
Watson v Foxman (1995) 49 NSWLR 315
WIN Corporation Pty Ltd v Nine Network Australis Pty Ltd (2016) 341 ALR 467; [2016] NSWCA 297

Texts Cited:
J D Heydon, Heydon on Contract (2019)
P Herzfeld and T Prince, Interpretation (2nd ed, 2020)
R P Austin and I M Ramsay, Ford, Austin and Ramsay’s Principles of Corporations Law (17th ed, 2018)

Category: Principal judgment
Parties: Maurtray Pty Limited (ACN 086 027 027) (Plaintiff)
Pillemer Pty Ltd (ACN 120 539 488) (First Defendant)
Pillemer Family Holdings Pty Ltd (ACN 130 257 680) as trustee for the Pillemer Family Trust (Second Defendant)
Mr Russel Craig Pillemer (Third Defendant)
Representation:
Counsel:
Mr I Jackman SC with Mr T Marskell (Plaintiff)
Mr C R C Newlinds SC with Ms M E Hall (Defendants)
Solicitors:
Mills Oakley (Plaintiff)
Deutsch Miller (Defendants)

File Number(s): 2020/68897
Publication restriction: N/A

Judgment

Introduction

These proceedings arise out of a deed of settlement entered into on 15 February 2017 in relation to a loan from the plaintiff, Maurtray Pty Limited (ACN 086 027 927) (Maurtray), to the first two defendants Pillemer Pty Ltd (ACN 120 539 488) (PPL) and Pillemer Family Holdings Pty Ltd (ACN 130 257 680) (PFH). The loan was guaranteed by the third defendant, Mr Russel Pillemer, who was the sole shareholder and director of PPL and PFH at all relevant times.
The loan funded the acquisition by PPL of certain shares in Pengana Holdings Pty Ltd (Pengana, also sometimes referred to as PHL) in 2008.
Pengana had been established in 2003 by the Honourable Malcolm Turnbull AC and Mr Pillemer.
The loan was originally made by Turnbull & Partners Pty Ltd (TPPL) to PPL. The terms of the loan agreement were varied in June 2015 to include PFH as a borrower. TPPL assigned the loan to Maurtray in November 2015.
At all times relevant to these proceedings, Mr Alexander Turnbull was a director and shareholder of Maurtray and was solely responsible for the day to day management of Maurtray. Mr Alexander Turnbull was the principal witness for Maurtray in these proceedings. The Honourable Malcolm Turnbull AC was not a director or shareholder of Maurtray, but did give some brief evidence.
Maurtray claims that PPL and PFH breached a contractual obligation to disclose to Maurtray certain information about a potential merger of Pengana with an ASX listed company. Maurtray also claims that PPL, PFH and Mr Pillemer engaged in misleading or deceptive conduct by making certain alleged representations and by failing to disclose that information. Maurtray claims that the alleged breaches of contract and misleading or deceptive conduct caused it to enter into the deed of settlement rather than taking an alternative course that it claims was open to it and would have been financially more advantageous. Maurtray claims damages for its alleged losses in the amount of $8,697,624.12 or alternatively $5,866,211.84.
For the reasons that follow, Maurtay’s claims fail.
For reasons of brevity and without intending any disrespect, I will refer to the Honourable Malcolm Turnbull AC as Mr M Turnbull. I will refer to Mr Alexander Turnbull as Mr A Turnbull.
The parties’ claims and defences can be more readily understood with the benefit of an understanding of the events and communications giving rise to the plaintiffs’ claims. It is therefore convenient to structure the balance of these reasons as follows:

summary of evidence: see [10]-[318] below;

claims and defences: see [319]-[341] below;

consideration and determination: see [342]-[546] below; and

conclusion: see [547] below.

Summary of Evidence

Introductory observations

Maurtray read four affidavits sworn by Mr A Turnbull and two affidavits sworn by Mr M Turnbull. The defendants read two affidavits sworn by Mr Pillemer. Mr A Turnbull was cross-examined for the best part of two days, followed by a brief cross-examination of Mr M Turnbull. Mr Pillemer was cross-examined for part of the afternoon of the second day and most of the third day of the hearing. Between them, the parties tendered seven volumes of documents.
As will become apparent, there were many inconsistencies within the evidence of Mr A Turnbull and some inconsistencies within the evidence of Mr Pillemer. The following summary of the affidavit, oral and documentary evidence identifies, but does not endeavour to reconcile, those inconsistencies. The material inconsistencies are addressed in later sections of these reasons in which I set out my assessment of the credibility and reliability of evidence given by the witnesses and my findings of fact.

Uncontroversial background matters

Mr M Turnbull first met Mr Pillemer in about 1997 at Goldman Sachs Australia Pty Ltd (GSA).
In the period after Mr M Turnbull retired from GSA in 2001, he and Mr Pillemer established a private equity business and a number of other new businesses in the financial services sector.
In February 2003, TPPL, Mr Pillemer and others established Pengana to operate a funds management business. Mr M Turnbull and Mrs Lucy Turnbull, were (and remain) equal shareholders and the sole directors of TPPL.
Mr Pillemer was the CEO of Pengana from its inception in 2003 and retained that position at all times relevant to these proceedings.
On 9 October 2004, Mr M Turnbull became the Federal Member for Wentworth in the House of Representatives.
Elly Investments Pty Ltd, an entity related to National Australia Bank Ltd, became a substantial shareholder in Pengana in April 2008. At that time, Mr M Turnbull was the Federal Member for Wentworth in the House of Representatives and held the position of Shadow Treasurer. It was his understanding (through information conveyed to him by Mr Pillemer), that National Australia Bank Ltd did not wish to proceed with its investment in Pengana if TPPL also remained a shareholder. TPPL then sold all of its shares in Pengana. Some of those shares were sold to the first defendant, PPL.

The Loan Agreement

On 3 April 2008, TPPL (as “Lender”) and PPL (as “Borrower”) entered into a loan agreement that Mr M Turnbull describes as “vendor finance” for TPPL’s shares in Pengana that were transferred to PPL (the Loan Agreement). On or about the same date, Mr Pillemer signed a Deed of Guarantee and Indemnity pursuant to which he guaranteed to TPPL (as “Lender”) the repayment of all monies owing by PPL (as “Borrower”) under the Loan Agreement (the Guarantee).
The Loan Agreement was subsequently varied by a Deed of Variation dated 26 April 2012 between TPPL (as “Lender”), PPL (as “Borrower”) and Mr Pillemer (as “Guarantor”) and a Deed of Variation and Accession dated 1 June 2015 between TPPL (as “Lender”), PPL (as “Borrower”), the second defendant PFH (as “Acceding Party”) and Mr Pillemer (as “Guarantor”).
Clause 9.1 of the Deed of Variation and Accession provided:

“(a)   The Acceding Party acknowledges the existence and terms of the Loan Agreement (as varied by the First Variation and as set out in Schedule 1).
(b)   The Acceding Party acknowledges that it owns the parcel of shares referred to in clause (a) of the definition of ‘Shares’ in clause 18 of the Loan Agreement (as amended by clause 4 of Schedule 1 of this Deed).
(c)   From the date of this Deed:
(1)   the Acceding Party agrees to become, and each other party to this document agrees that the Acceding Party will become a party to the Loan agreement as a Borrower;
(2)   the Acceding Party covenants and agrees to comply with and be bound by all present and future obligations of the Borrower under the Loan Agreement as a party to those documents in that capacity;
(3)   the Acceding Party agrees to do all things that a Borrower is required under the Loan Agreement to procure or ensure are done by the Borrower.”

The parcel of shares referred to in clause 9.1(b) above were 42,840 shares in Pengana.
The Deed of Variation and Accession contained no provision releasing PPL from its obligations as “the Borrower” under the Loan Agreement.
Except where expressly indicated to the contrary, the following summary of the provisions of the Loan Agreement refers to those provisions as varied by the Deed of Variation dated 26 April 2012 (the First Variation) and as further varied by the Deed of Variation and Accession dated 1 June 2015 (the Second Variation). Where the Loan Agreement (as varied) refers to “the Borrower”, that term is also used in the summary below.
Clause 1 of the Loan Agreement provided for TPPL to make available a Facility of up to $8,044,640.86 (the Loan).
Pursuant to clause 4(a), the “Repayment Amount” was due and payable in full by the Borrower on the “Repayment Date”.
The “Repayment Amount” was defined as the “Principal Outstanding plus an amount such that the Lenders [sic] IRR is equal to 15%”. The “Lender’s IRR” was defined as an internal rate of return calculated in accordance with a specified formula.
The definition of “Repayment Date” included the date which is five business days after a “Liquidity Event”. The term “Liquidity Event” was defined as having the same meaning as in a shareholders’ agreement between Elly Investments Pty Ltd, Pengana and others dated on or about 4 April 2008 (the Shareholders’ Agreement). The Shareholders’ Agreement was in fact dated 30 April 2008. It defined the term “Liquidity Event” as an initial public offering (IPO) of the shares of Pengana or a newly formed holding or subsidiary company of Pengana or any entity formed to acquire the business of Pengana (or a private sale of a minimum of 50% of the issued shares in Pengana to a person other than an existing shareholder of Pengana.
Clause 4(b) of the Loan Agreement provided that the Borrower must satisfy its obligation under clause 4(a) to pay the Repayment Amount in full on the Repayment Date by:

“The Borrower must satisfy its obligations under clause 4(a), either by:
(i)    paying the Repayment Amount in full to the Lender on the Repayment Date;
(ii)   on or before the Repayment Date, transferring, and procuring that each Pillemer Associate transfers, to the Lender (or its nominee) all of the Shares, provided that the Shares are transferred:
(A)   free from all Encumbrances;
(B)    together with all rights attached or accruing to them;
(c)   free of any pre-emptive rights or rights of first refusal or any other restrictions on the Lender’s ability to freely Dispose of all of the Shares; and
(D)    prior to completion of a Liquidity Event of the type described in paragraph (b) of the definition of Liquidity Event (ignoring the exclusion),

which transfers will constitute a full discharge of the Borrower’s obligation to pay the Repayment Amount; or
(iii)   if, on or before the Repayment Date:
(A)   there is a sale of all of the shares in the Company for cash to an unrelated third party on genuine arms length terms; and
(B)   the sale proceeds received by, or on behalf of, the Pillemer Associates (less the reasonable transaction costs and taxes directly incurred in connection with the sale) (‘Sale Proceeds’) are immediately applied toward payment of the Repayment Amount,

then the payment of the Sale Proceeds to the Lender will constitute a full discharge of the Borrower’s obligation to pay the Repayment Amount even if the amount of the Sale Proceeds is less than the Repayment Amount.”

In the Loan Agreement executed on 3 April 2008, the “Shares” were defined as (emphasis in original):

“(a) 128,940 shares in the Company [referring to Pengana]; plus
(b) all of the shares or other securities in the Company legally or beneficially held by the Pillemer Associates (whether acquired before or after the date of this Facility Letter) other than the 128,940 shares referred to in paragraph (a) above”

The Loan Agreement defined “Pillemer Associates” as meaning Mr Pillemer and “associates” of Mr Pillemer or the Borrower (PPL as at the date of execution of the Loan Agreement) as defined in ss 11 and 12 of the Corporations Act 2001 (Cth), including any entity of which Mr Pillemer is one of the majority directors or the majority of the shares in which are held by Mr Pillemer.
Schedule 1 to the Shareholders’ Agreement reveals that, as at the date of execution of the Shareholders’ Agreement on 30 April 2008, the 128,940 shares referred to in paragraph (a) of the definition of “Shares” in the Loan Agreement comprised 75,600 shares owned by R C Pillemer Pty Ltd, 10,500 shares owned by Mr Pillemer and 42,840 shares owned by PFH. This suggests that, contrary to Mr M Turnbull’s evidence referred to at [17] above, PPL was not the entity that acquired shares in Pengana from TPPL in April 2008.
The First Variation amended the definition of “Shares” in the Loan Agreement to read as follows (emphasis in original):

“(a) 64,470 shares in the Company;
less
(b) that number of shares referred to in paragraph (a) of this definition sold for cash in a Permitted Sale between the date of this Facility Letter and the Repayment Date.”

The Loan Agreement defined a “Permitted Sale” as meaning:

“… a sale for cash to an unrelated third party of a Pillemer Associate on genuine arms length terms and for fair value and where the sale proceeds (less the reasonable transaction costs and taxes directly incurred in connection with the sale) are immediately applied toward payment of the Repayment Amount.”

The Second Variation amended the definition of “Shares” again to read as follows (emphasis in original):

“(a) 42,840 shares in the Company;
less
(b) that number of shares referred to in paragraph (a) of this definition sold for cash in a Permitted Sale (first approved by the Lender) between the date of this Facility Letter and the Repayment Date, provided that the Sale Proceeds in respect of those shares had been paid to the Lender in accordance with clause 4(b)(iii).”

The 42,840 shares referred to in paragraph (a) of that definition were owned by PFH, as stated in Schedule 1 to the Shareholders’ Agreement and confirmed in clause 9.1(b) of the Second Variation.
Thus, the only “Shares” to which the Loan Agreement applied from 1 June 2015 were the 42,840 shares held by PFH. There were no “Shares” owned by any other “Pillemer Associate” that clause 4(b)(ii) of the Loan Agreement would require PPL to procure the owner to transfer to the Lender if PPL elected to repay the Loan by a transfer of the “Shares”.
In these reasons, I follow the convention adopted in the parties’ submissions and use the term “Shares” to refer to the 42,840 shares in Pengana to which the Loan Agreement applied from 1 June 2015.
Clause 5 of the Loan Agreement, as varied by the Second Variation, provided:

“The Borrower may prepay all or part of the Repayment Amount at any time.
The Borrower is required to make prepayments to the Lender equal to the Net Dividends received on the Shares, which Net Dividends on payment will be deducted from the Principal Outstanding. These payments must be made by the Borrower to the Lender as follows:
(a) in respect of any dividends received on the Shares prior to the date of this Second Variation (being $464,625), the Borrower must pay the Net Dividends (being $338,512), to the Lender within 30 days of the date of this document;
(b) in respect of any dividends received by the Borrower on the Shares after the date of this document, the Borrower must pay the Net Dividends to the Lender within 10 days of the Borrower receiving dividends.”

All but the first paragraph of clause 5 set out above was introduced into the Loan Agreement by the Second Variation.
The term “Net Dividends” was defined as dividends received net of the top marginal personal income tax rate after taking into account any franking credits. In respect of dividends of $464,625 that had been received prior to the date of the Deed of Variation and Accession, the Borrower was required to pay the Net Dividends of $338,512 to the Lender within 30 days after the date of that deed. Future Net Dividends were required to be paid to the Lender within 10 days after receipt by the Borrower.
Clause 7A of the Loan Agreement, which was introduced by the Second Variation, provided:

“As at the date of the Second Variation, the Borrower warrants and represents that:
(a) the total amount of dividends received to date in respect of the Shares is $464,625; and
(b) the Borrower is not aware of any fact or circumstance that are not known to the Lender that has, will or has the potential to give rise to a material dilution in the value of the Shares as compared to the date the Shares were purchased by the Borrower from the Lender.”

The Loan Agreement did not expressly provide the Lender with a security interest in the Shares. However, clause 8 provided that it was an “Event of Default” if the Borrower created any encumbrance over any of the Shares or disposed of any of the Shares (other than in a Liquidity Event or Permitted Sale) without the Lender’s prior written consent. The Repayment Amount was immediately due and payable (at the Lender’s option) upon the occurrence of an Event of Default.

Clause 19 of the Loan Agreement, which was introduced by the Second Variation, provided:

“Borrower’s Disclosure Obligations
Until the Repayment Amount has been repaid in full, the Borrower must:
(a)    give to the Lender within 5 Business Days of receipt, a copy of any financial report (including, without limitation, the annual financial report) and any shareholder correspondence or other document or information received or accessible by the Borrower in respect of the Shares or the Company [i.e. Pengana] which may relate in any way to:
(1)    the value of the Shares;
(2)    the sale or potential sale of any of the Shares; or
(3)    the composition, profitability or performance of the Company.
(b)    within 5 Business Days of any request by the Lender, provide such oral or written information as the Lender may reasonably require with respect to the Shares or the Company, of which the Borrower is or ought to be aware.”

As I have already mentioned above at [1], at all times relevant to these proceedings, Mr Pillemer was the sole director and sole shareholder of PPL and PFH.

Assignment

By Deed of Assignment of Loan Agreement and Guarantee dated 9 November 2015 between TPPL (as “Assignor”), PPL and PFH (as “Debtor”), Mr Pillemer (as “Guarantor”) and Maurtray (as “Assignee”), TPPL assigned to Maurtray its right, title and interest in the moneys owed by PPL and PFH under the Loan Agreement (as varied) and its right, title and interest under the Guarantee (the Deed of Assignment).
Mr A Turnbull and his sister Ms Daisy Turnbull were the directors and shareholders of Maurtray at this time and at all subsequent times relevant to these proceedings. Their parents made a gift of money to them which they then applied to the consideration of $5,987,367.63 payable by Maurtray to TPPL under the Deed of Assignment for the assignment of the Loan. Mr A Turnbull gave evidence in cross-examination that the consideration was determined on the basis of Mr Pillemer’s estimated value of the whole of Pengana at $79 million as at November 2015.
Mr A Turnbull gave evidence that Maurtray’s only business during 2016 and 2017 was as lender under the Loan Agreement and that he was solely responsible for the day to day management of Maurtray during 2016 and 2017.
It is relevant to note that Mr A Turnbull initially gave a very different account about the financial arrangements pursuant to which the Loan was assigned to Maurtray. In his affidavit sworn on 15 May 2020, Mr A Turnbull deposed:

“The Deed of Assignment required payment of consideration of $5,987,387.63 by Maurtray to TPPL. This amount was paid by Maurtray through a loan it received from TPPL.
This loan was to be repaid by Maurtray by receiving what were called ‘prepayments’ under the Loan Agreement from PPL, being the dividends received by PPL from Pengana. These amounts were then paid on by Maurtray to TPPL.”

On 3 March 2021, Mr M Turnbull swore his first affidavit for these proceedings in which he deposed that he and his wife and given their children approximately $6 million which they then used to enable Maurtray to pay for the assignment of the Loan from TPPL. Mr A Turnbull then corrected his evidence referred to above in his third affidavit sworn on 12 March 2021, confirming that his parents had gifted a sum of approximately $6 million to him and his sister which Maurtray had then applied to acquire the Loan from TPPL. Mr A Turnbull deposed that the loan he had referred to in his 15 May 2020 affidavit “was a structure I had in mind but it never came about”.
In cross-examination, Mr A Turnbull confirmed that he had been labouring under the mistake that the $6 million had been a loan from TPPL to Maurtray, and that he had even had a recollection of the terms of that non-existent loan, at all times until about 3 March 2021 when his father spoke to him about it and provided him with accounting records of one of his related companies which record the $6 million payment as a gift. In cross-examination, Mr A Turnbull attributed his mistake in his first affidavit to confusion between the assignment transaction and another transaction which he described as “a Div 7A loan which required amortisation and other fixed terms”. I note that this explanation differs from the explanation offered in Mr A Turnbull’s 3 March 2021 affidavit referred to above.

Relevant events in the period from 1 June 2016 to 15 February 2017

It is common ground that, after the Loan was assigned to Maurtray, Mr Pillemer kept in regular contact with Mr A Turnbull including by sending him information that Pengana sent to its shareholders and offering to meet with Mr A Turnbull and give him an overview of the Pengana business whenever Mr Pillemer was visiting Singapore where Mr A Turnbull was based. Mr A Turnbull told Mr Pillemer on several occasions during these discussions that: “We would really like a liquidity event so that we can sell out”.
By mid-2016, NAB Asset Management Ltd (NAB) was the largest shareholder in Pengana and there was some discussion between Mr A Turnbull and Mr Pillemer about what NAB might intend to do with its shares in Pengana.
On 1 June 2016, Mr A Turnbull sent an email to Mr Pillemer in the following terms (emphasis added):

“Russ, hope all is well – are you in Aus? Will be down there from the 12^th to the 6^th for the general circus. Was wondering what you guys were thinking on divs for Pengana this year – also, if progress is a bit slow with the major shareholder would like to convert into stock to try to move that progress along if possible. Let me know when works to catch up.”

In cross-examination, Mr Pillemer accepted that, in the email referred to above, Mr A Turnbull was conveying to him to he was willing and able to hold shares in Pengana and that Mr M Turnbull’s position as prime minister did not appear to present any impediment to Mr A Turnbull holding shares in Pengana.
However, Mr Pillemer gave evidence in cross-examination that he had “numerous conversations” with Mr A Turnbull in the period up to 15 February 2017 in which Mr A Turnbull told Mr Pillemer that he was not willing or able to hold shares in Pengana. Mr Pillemer said that one such conversation occurred in the days following Mr A Turnbull’s email sent on 1 June 2016 referred to at [53] above. According to Mr Pillemer:

“The conversation that we had was one where I called him and I said ‘Alex, you realise that it’s not as simple as, you know, just the – not as simple as converting into stock, we have to go through the whole tag along process, everybody would get to know who you are, full disclosure and they you’d come into Pengana and then if we’re trying to have a liquidity event everybody would see that you’re around, the whole disclosure would be blown and you know, really this isn’t a good idea.’ And he said ‘Yes, yes I see what you mean and that conversation died from that point onwards.’ That, this line or this offer, if you like, from Alex did not reoccur ever again.”

Mr Pillemer swore two affidavits in these proceedings in which he agreed in cross-examination that he had included his account of all significant events and conversations to the best of his knowledge. As the plaintiffs submitted, Mr Pillemer’s affidavits did not include any reference to a conversation along the lines that he described in cross‑examination as having occurred in the days following Mr A Turnbull’s email sent on 1 June 2016. However, Mr Pillemer’s affidavits were responsive to Mr A Turnbull’s affidavits, and Mr A Turnbull confined himself to conversations in the period from 1 October 2016 and made no reference to his 1 June 2016 email.
In October 2016, NAB made a decision to sell its shareholding in Pengana and appointed Chase Corporate Advisory to identify a strategic buyer. It is common ground that Mr Pillemer informed Mr A Turnbull of this development.
On 9 November 2016, Mr Pillemer sent an email to Mr A Turnbull attaching an information memorandum prepared by Chase Corporate Advisory.
On 17 November 2016, Mr Pillemer sent a further email to Mr A Turnbull attaching what was described as a final version of the information memorandum which was again marked highly confidential. It is common ground that Mr Pillemer sent this material on both his own behalf and on behalf of PPL and PFH to Mr A Turnbull on behalf of Maurtray. Mr Pillemer’s email to Mr A Turnbull suggested that they arrange a time to “chat”.
It is common ground that Mr Pillemer told Mr A Turnbull at about the same time as he sent the emails referred to at [58]-[59] above that:

“I won’t be selling my shares in Pengana to a buyer. This is purely a process for NAB to sell its stake. Due to the terms of the Shareholders Agreement, that will almost certainly give other shareholders the opportunity to sell alongside NAB”

According to Mr A Turnbull, he responded to this statement by Mr Pillemer by saying:

“OK Russell [sic], go ahead and do whatever you need to pay out the loan.”

Mr Pillemer deposed that the terms of the Shareholders’ Agreement to which he was referring in that conversation were clauses 10, 11 and 14. Clause 10 required any Pengana shareholder wishing to sell its shares to offer those shares to the other shareholders on the same terms that it was proposing to sell the shares to a third party (subject to certain exceptions that are not presently relevant). Clause 11 required any Pengana shareholder holding 25% or more of the shares in Pengana and wishing to sell its shares (having first complied with clause 10) to issue a notice to all other Pengana shareholders specifying the number of shares proposed to be transferred, the prospective transferee and the terms of the proposed transfer and stating that the other shareholders may transfer their own Pengana shares to the same transferee on the same terms as specified in the notice. It is convenient to refer to clause 11 as the tag along clause. It is not necessary to refer to clause 14 of the Shareholders’ Agreement which is not relevant to these proceedings.
Emails exchanged between Mr A Turnbull and Mr Pillemer (or one of his staff) indicate that they arranged a telephone call for 18 November 2016. In paragraph 49 of his affidavit sworn on 15 May 2020, Mr A Turnbull deposed that the call took place and that he and Mr Pillemer had a conversation that included words to the following effect:

“RP:   ‘The valuation range of the company has moved down from around $100-$120 million. I cannot tell you who the bidder is as it is a public company.’
AT:   ‘That is a bad outcome and a poor quality price – an IPO would be much better. Has the board appraised any proposal for an IPO?’
RP:   ‘The NAB is opposed to a public listing so there is no chance of that happening.’
AT:   ‘You have failed in your obligations to the shareholders.’
RP:   ‘You don’t know hard it is to deal with the NAB.’”

In paragraph 50 of his affidavit sworn on 15 May 2020, Mr A Turnbull deposed that he described NAB’s sale of its shares as a “bad outcome” with a “poor quality price” because his own analysis had valued Pengana at $183 million. The analysis that Mr A Turnbull refers to was a two page spreadsheet entitled “Pengana Group Profit and loss For the year ended 30 June” which calculated a profit after tax of $18,029,483 and stated: “Valuation $183,000,000”. Mr A Turnbull referred to that spreadsheet elsewhere in his affidavit sworn on 15 May 2020 as an analysis that he had prepared in 2014.
However, in his affidavit sworn on 20 July 2020, Mr A Turnbull corrected his evidence referred to immediately above. He deposed that he had prepared the spreadsheet containing the valuation of $183,000,000 on the basis of information contained in the Explanatory Memorandum issued by ASX listed company Hunter Hall International Limited (Hunter Hall) on 2 May 2017 in relation to the proposed merger between Hunter Hall and Pengana. As referred to in more detail later in these reasons, Pengana was pursuing that proposed merger during January and February 2017. In his affidavit sworn on 20 July 2020, Mr A Turnbull deposed that the numbers in the spreadsheet:

“… were based on me backing out what the implied value of Pengana was in the Hunter Hall transaction after accounting for some dilution that came with the NAB selldown and issue of more management shares.
It does contain information from my analysis in 2013 or 2014 but appears to have some further analysis from late 2016 and then 2017 added to it …
My recollection is that, from November 2015 onwards, I was proceeding on the basis that Pengana was worth between $120 million and $150 million. This was based upon market comparable levels using publicly listed asset managers in Australia.
I adhere to my evidence at paragraph 50 of my First Affidavit on the basis that I told Mr Pillemer the sale by NAB of its shares was a ‘bad outcome’ and ‘poor quality price’ on the basis I valued Pengana at about $120 million which was in line with comparables after applying a liquidity discount for an unlisted and smaller company.”

In cross-examination, Mr A Turnbull refused to accept that, when he swore his 15 May 2020 affidavit, his recollection of his state of mind concerning the value of Pengana as at November 2016 referred to in paragraph 50 of that affidavit was incorrect. Mr A Turnbull maintained that his evidence referred to at [64] above was “a drafting error” attributable to “my lawyers not being terribly numerate” or the unreliable “ability of one to read spreadsheets late at night”. Mr A Turnbull said that he thought he had sent the wrong version of the spreadsheet to his solicitors, as a result of which his affidavit erroneously referred to him having valued Pengana at $183,000,000 in 2014 and he failed to pick up that error.
I note that Mr A Turnbull’s in cross-examination suggests that his opinion in November 2016 about the value of Pengana was based on a 2014 version of his profit and loss spreadsheet, which was not in evidence. Later in his cross‑examination, Mr A Turnbull referred to his opinion in November 2016 as being informed by modelling that he had done in 2013 and said that Pengana’s assets had grown since then. That is inconsistent with Mr A Turnbull’s 20 July 2020 affidavit referred to above, in which he deposed that his opinion about the value of Pengana as at November 2016 had an entirely different basis, namely unspecified “market comparable levels” sourced from publicly listed asset managers to which he had applied an unspecified liquidity discount.
Mr A Turnbull maintained in cross-examination that he told Mr Pillemer that a valuation range for Pengana that was “down from” between $100 million and $120 million was a “bad outcome and a poor quality price” notwithstanding that:

Mr Pillemer had not told him anything about what the valuation range had come down to; and

Mr A Turnbull’s view of the value of Pengana in November 2016 was based (on one version of his evidence) on modelling that he had done in 2013 or 2014.

In his affidavit sworn on 15 May 2020 and in cross-examination, Mr A Turnbull deposed that he believed and relied on the statement that he says Mr Pillemer made to him during their telephone conversation on 18 November 2016 that there was no prospect of Pengana being listed on the ASX. It was put to Mr A Turnbull that, in circumstances where NAB was proposing to sell its shareholding in Pengana, NAB’s view about a public listing would have no relevance in the future once NAB was no longer a shareholder of Pengana. It was put to Mr A Turnbull that he did not take from anything that he claims Mr Pillemer said to him on 18 November 2016 that there was no prospect of Pengana being publicly listed in the future. Mr A Turnbull maintained that he did understand that “because it [NAB’s shareholding in Pengana] had been sold to a strategic buyer who is unlikely to want to flip it into an IPO in a hot minute”. Mr A Turnbull accepted that Mr Pillemer did not tell him anything about the buyer’s intentions, but said that it would be “a very unusual practice” for a strategic buyer of NAB’s stake to then publicly list Pengana. However, Mr A Turnbull then gave the following evidence (emphasis added):

“Q.   The conversation at paragraph 49 simply didn't happen did it?
A.   No, it absolutely happened, Mr Newlinds.
Q.   You're certain of that are you?
A.   I'm absolutely certain. And I'm--
Q.   Is that the totality of the conversation, may we take it, that you didn't ask any questions?
A.   There wasn't anything else to ask, it was clear an IPO was not happening.
Q.   Because NAB were opposed to it?
A.   Yeah, they were going to sell out and then I'd have to work out what the next buyer or controlling shareholder of the company planned.
Q.   That's my point. And so how could you take from that conversation that there was no prospect whatsoever of a public float in the future?
A.   Well because there was no prospect under NAB as the controlling shareholder and they were in the process of selling out.
Q.   Is that your explanation?
A.   Yes.
Q.   I should make it clear to you I'm going to make a submission to her Honour that that explanation is nonsense. Is there anything else you want to say in answer to that?
A.   It makes a great deal of sense, Mr Newlinds.”

Mr Pillemer denies having a conversation with Mr A Turnbull in the terms referred to at [63] above.
In his affidavit sworn on 19 June 2020, Mr Pillemer gave evidence he had numerous conversations with Mr A Turnbull during the period from October to December 2016 in which he said to Mr A Turnbull words to the following effect:

“It would be really great if your family would stay invested. If you don’t want to transfer the loan into PHL [Pengana] equity, then maybe we can keep the loan structure or create another structure”.

Mr Pillemer deposed that he was “very keen” to have “the Turnbull family” remain invested in Pengana after NAB’s sale of its stake for reasons that included “my close relationship with Mr M Turnbull, and because I regarded them as very powerful people, including Mr M Turnbull being the Prime Minister of Australia.” Mr Pillemer viewed the “continuing involvement” of the Turnbull family as “a major positive” for Pengana as well as for himself personally.
According to Mr Pillemer, Mr A Turnbull told him in their conversations that:

“We have no interest in an ongoing exposure to Pengana. We want out as soon as there is an opportunity to get out.”
“The Maurtray loan arrangements are a major political risk for MBT I am also concerned about risks that my hedge fund activities would become a focus of my father’s enemies. I don’t want anybody to know what I am holding in my fund and who I am trying to raise money from. By living in Singapore, I have managed to avoid this publicity and I do not want to risk the exposure.”
“We don’t want the ATO digging into this”.

In relation to that last mentioned statement that Mr Pillemer attributes to Mr A Turnbull, Mr Pillemer’s evidence is that Mr A Turnbull was alluding to “potential tax issues connected with the loan”.
Mr A Turnbull agreed that he told Mr Pillemer on several occasions during the period from October to December 2016 that he wanted the Loan to be repaid to Maurtray. However, Mr A Turnbull denied describing the Loan as a “major political risk” to his father and as a risk to his own hedge fund activities. Mr A Turnbull gave evidence that, at the time, he was “mildly concerned” about the financial media’s interest in any transfer of shares in Pengana to Maurtray due to his father’s position as prime minister, but that this consideration was secondary to achieving any potential “upside” for Maurtray that may result from a transfer of the Shares rather than a lump sum repayment of the Loan. Mr A Turnbull’s role as the chief investment officer of his hedge fund, Keshik Capital, had already been the subject of publicity in July 2014. Mr A Turnbull also denied having expressed any concerns about the ATO “digging into this” and gave evidence that he never held any concerns about the ATO looking into the Loan Agreement.

It is common ground that Mr A Turnbull and Mr Pillemer discussed the transaction by which NAB proposed to sell its shares in Pengana at a breakfast meeting in Double Bay on 14 December 2016. There is no dispute that Mr Pillemer informed Mr A Turnbull that NAB would very likely sign a deal to sell its Pengana shareholding to ASX listed company WH Soul Pattinson & Company Limited (WHSP) (which Mr Pillemer referred to as “Soul Patts”), that he gave Mr A Turnbull the details of the major terms of the likely transaction including the price of $80 million and the structure of the transaction and that he mentioned to Mr A Turnbull that the $80 million price would equate to a value of about $6.1 million in respect of the Shares to which the Loan Agreement applied.
In his affidavit sworn on 15 May 2020, Mr A Turnbull deposed that he and Mr Pillemer had a conversation to the following effect during that breakfast meeting:

“RP:   ‘The bidder is Soul Patts. The pricing is $80 million.’
AT:   ‘I’m unhappy with that. The pricing is poor.’
RP:    ‘I don’t know what Soul Patts are going to do or whether they have plans to list or pursue a regular dividend policy. Your money is as good as dead with the company.’
AT:    ‘This is a bad outcome but it seems I have little choice and the shares will have to be tendered along with everyone else’s. How should we do this, should the shares be transferred to me and I will tender them to Soul Patts?’
RP:   ‘No.’”

In cross-examination, Mr A Turnbull maintained that he did say to Mr Pillemer that “[t]he pricing is poor” notwithstanding that Mr A Turnbull said (contrary to his 20 July 2020 affidavit) that his view of the value of Pengana was based on the “vague” valuation that he had prepared some years earlier in 2013 or 2014.
Mr A Turnbull also maintained that Mr Pillemer did say:

“I don’t know what Soul Patts are going to do or whether they have plans to list or pursue a regular dividend course”,

followed immediately by the seemingly inconsistent statement:

“Your money is as good as dead with the company.”

Mr A Turnbull said that he understood the second statement – “[y]our money is as good as dead” – as meaning that “I would have no agency, no ability to exit, effectively dead and passive” and “I would be at the mercy of whatever the controlling shareholder and Russel wanted to do”.
Mr A Turnbull also said in cross-examination that he did not ask Mr Pillemer to inquire of WHSP what their intentions were. He inferred that WHSP would not be listing Pengana imminently because: “… look I only went on inference of what Soul Patts tends to do, they tend to be very long-term shareholders. They keep things private for extremely long periods of time. They’re essentially a permanent capital vehicle. You know, if Russel didn’t know then I wasn’t going to find out.” Inconsistently, Mr A Turnbull said a short time later in his cross-examination that Mr Pillemer’s uncertainty about WHSP’s intentions “was consistent with them, sometimes listing things, sometimes not listings [sic] things. There was – there was no playbook for Soul Patts as a counterfactual.” Mr A Turnbull then said in his very next answers that it “would have been quite unlikely” for WHSP to list Pengana in the future because “I just think it would be an unusual thing for a private equity fund to do”. When asked about the reason for that view, Mr A Turnbull replied that it “just didn’t seem particularly plausible to me” because “if WHSP was planning on listing it, then NAB would have just exited …”. The balance of that answer was not transcribable and it is not clear how Mr A Turnbull claims to have contemplated at the time that NAB would have “just exited” Pengana without selling its shares to WHSP, or how WHSP could list Pengana without first acquiring NAB’s shares in Pengana.
Mr A Turnbull’s evidence about this subject changed again a short time later during the following exchange with the cross-examiner (emphasis added):

“Q.   I want to put to you and ask you to consider that there is simply no way Mr Pillemer said to you something like ‘Your money's as good as dead’ is there?
A.   Mr Pillemer made it very clear that the buyer, he had no intention of an IPO or any - he had no awareness of it and that they were long‑term holders so I would have--
Q.   Or it's completely wrong to you - for you to say that he made it entirely clear that the buyer - that he - that the buyer had no intention of IPO. That is completely wrong isn't it?
A.   Well I asked him and he said he was not aware of any, he didn't - didn't think it was likely.
Q.   No. Let's just look at your own evidence.
A.   Yes.
Q.   It is completely inconsistent with your evidence.
A.   Where is - where in my evidence is this inconsistent, Mr Newlinds.
Q.   ‘I don't know what Soul Pattinson are going to do’?
A.   Yeah.
Q.   ‘Or whether they have plans to list’?
A.   Yeah.
Q.   He did not make it entirely clear that they did not want to list, did he?
A.   No, he said that he had no idea and he would be in touch with Soul Patts--
Q.   When you said a few moments ago that he made it entirely clear that Soul Patts did not want to list, that is but another example of you just throwing things into your evidence because you think it might help the case rather than trying to tell the truth, isn't it?
A.   No, Mr Newlinds. It is because he would be aware of their intentions and he would know what they planned to do.
Q.   Why did you say he made it entirely clear that Soul Patts did not want to sell when that is simply not true?
A.   If he did not know he would probably know if there was a case to happen. If there was an IPO that was likely or listing or any other action.
Q.   Why did you say that he made it entirely clear to you that Soul Pattinson had no interest in the public listing? Why did you say--
A.   Because it's a logical inference of their - and also he said if he didn't know, he didn't of [sic] any plans.
Q.   So the reason you said he made it entirely clear to you is because it's some logical inference that you drew is it?
A.   Yes, because he was working with their management.”

In cross-examination, Mr A Turnbull acknowledged that the Loan Agreement gave PFH the option of paying the Repayment Amount or transferring the Shares to Maurtray but said that it was obvious at this time that, for commercial reasons, PFH would not pay the Repayment Amount. The remaining option was for PFH to transfer the shares to Maurtray. However, he said that he asked Mr Pillemer “[h]ow should we do this?” because it would be simpler and involve a lot less paperwork for PFH to retain the Shares and pay Maurtray a sum equivalent to the amount that WHSP would pay for the Shares in the tag along process, rather than PFH transferring the Shares to Maurtray in accordance with the Loan Agreement and Maurtray then selling the Shares to WHSP in the tag along process. Ultimately, Mr A Turnbull agreed with the cross-examiner that neither of these two options was simpler than the other.
Mr A Turnbull’s evidence is that the conversation about the Loan Agreement at the 14 December 2016 breakfast meeting ended on the following note:

“AT: ‘… How should we do this, should the shares be transferred to me and I will tender them to Soul Patts?’
RP: ‘No.’”

In cross-examination, Mr A Turnbull maintained that this marked the end of the conversation about Pengana at the breakfast meeting and that he did not ask any follow up questions after Mr Pillemer’s monosyllabic response to his question. According to Mr A Turnbull, there was no further communication about the issue until the exchange of emails between Mr A Turnbull and Mr Pillemer on 26 December 2016 referred to below. When challenged further about the implausibility of the conversation ending in such an abrupt manner with no resolution about what was to occur, Mr A Turnbull embellished his account of Mr Pillemer’s response to his question “[h]ow should we do this …”:

“Well, I think he said, ‘No’, and, ‘We’ll work out the details. I’ll send you an email later.”

Mr A Turnbull denied that Mr Pillemer said “No”, followed by an explanation that transferring the Shares from PFH to Maurtray would result in Maurtray’s involvement becoming known to other Pengana shareholders and then becoming public knowledge.
Whilst under cross-examination about his version of the conversation at the 14 December 2016 breakfast meeting, Mr A Turnbull endeavoured on several occasions to direct attention towards to the 26 December 2016 email referred to at [100] below.
In his affidavit sworn on 19 June 2020, Mr Pillemer denied that the breakfast meeting included a conversation to the effect set out at [77] above and gave the following very different account of his conversation with Mr A Turnbull at that meeting:

“RP: ‘Your family should really stay in this deal. I think this is going to be great for Pengana’.
AT: ‘We have no interest in continuing to be involved with Pengana. We want to cash out of this deal.’”

In his affidavit sworn on 20 July 2020 , Mr A Turnbull denied that Mr Pillemer urged him to “stay in this deal” or expressed the view that it was “going to be great for Pengana”. However, Mr A Turnbull gave the following evidence in cross-examination:

“Q.   Isn’t this what really happened in this conversation: … Firstly, he said something like this, ‘Your family really should stay in this deal. I think it’s going to be great for Pengana.’ You deny that, don’t you?
A.   Russel was keen to keep me in for some personal reasons, perhaps.
Q.   It is true that repeatedly during these discussions Russel’s position was he really wanted you to say [sic] in?
A.   Sure.
Q.   That’s true, isn’t it?
A.   Yes.
Q.   Let’s just understand this: you got him saying, ‘Your money is as good as dead’, but you accept that, at the same time, he’s saying, ‘I’d really love you to stay in.’?
A.   Well, he said that he couldn’t guarantee anything and there was - you know, he couldn’t offer me any reason to stay in, aside from him wanting to preserve a relationship.
Q.   But he wanted you to stay in, didn’t he?
A.   Yeah. I don’t know why.
Q.   And you wanted to cash out?
A.    Yes.”

Mr Pillemer deposed that, during the breakfast meeting on 14 December 2016 and during the following days, he and Mr A Turnbull discussed “the best way for Maurtray to receive a payment from this transaction”. According to Mr Pillemer, he said words to the following effect to Mr A Turnbull during those of those conversations:

“There are technical issues surrounding the sale process that make it problematic to proceed in accordance with the provisions of the Loan Agreement. They key issue is that the Shareholders Agreement contains complicated and lengthy pre-emptive clauses in the event that a shareholder is seeking to sell or transfer shares. As a result of these clauses, in the event that my entity attempts to sell shares to Maurtray, all the other shareholders would become aware of Maurtray’s involvement, which could potentially lead to such details being publicly leaked.”
“I have a potential solution that will enable us to maintain confidentiality. As part of my new employment agreement, I have negotiated with WHSP for Pengana to provide me with a large loan facility to acquire further equity in the company. Rather than using all this loan facility to acquire equity, I think they will agree for me to use a portion to repay the Maurtray loan. That way, we won’t have to go through the shareholder’s agreement process.”
“I will also try to get WHSP to provide me with bridge financing so that Maurtray can be fully paid out before the completion of the deal, so that we can completely avoid any disclosure problems.”

According to Mr Pillemer, Mr A Turnbull responded positively to his suggested potential solution referred to above, saying “[t]hat sounds like a good plan”. Mr Pillemer deposed that he made that suggestion for the sole reason of protecting the confidentiality of the Turnbull family’s involvement with Pengana through the Loan Agreement. Mr Pillemer deposed that he and his companies would derive no economic advantage from implementing his suggested solution. Mr Pillemer was not successfully challenged about this in cross-examination. Mr Pillemer gave evidence to the effect that WHSP was providing him with a loan of approximately $18 million to enable him to acquire additional shares in Pengana. It was a matter of no consequence to Mr Pillemer whether he spent the whole of the $18 million in acquiring additional shares simultaneously with or immediately after the NAB/WHSP transaction, or whether $6 million of the funds were made available to Mr Pillemer early under a bridging loan and he applied those funds to pay Maurtray on the basis that PFH would retain the Shares.
In his affidavit sworn on 20 July 2020, Mr A Turnbull denied that Mr Pillemer said to him words to the effect set out at [90] above, either at the breakfast meeting on 14 December 2016 or subsequently. Mr A Turnbull recalled that Mr Pillemer did say that he had a loan from “Soul Patts”, but denied that this was mentioned in the context of discussing arrangements for the repayment of the Loan to Maurtray. Rather, Mr A Turnbull’s evidence is that Mr Pillemer mentioned the loan from “Soul Patts” for the first time in January or February 2017 and told Mr A Turnbull that the loan was to facilitate Mr Pillemer maintaining a shareholding in Pengana as part of “management alignment”. Mr A Turnbull denied ever asking Mr Pillemer to structure his affairs, or agreeing with Mr Pillemer that his affairs would be structured, in a manner designed to preserve confidentiality for Mr A Turnbull or his family.
At some time prior to 23 December 2016, WHSP Pengana Pty Ltd was incorporated as a wholly owned subsidiary of WHSP (WHSPPPL).
On 23 December 2016, WHSPPPL made a binding offer to NAB to acquire NAB’s shares in Pengana. The terms of the offer included that WHSPPPL would make a full takeover bid for all shares in Pengana in accordance with the tag along clause of the Shareholders’ Agreement.
On 23 December 2016, Mr Pillemer received the following documents from NAB that he forwarded by email to Mr A Turnbull on the same day:

a letter from NAB to Mr Pillemer entitled “Pengana Holdings Pty Ltd – Possible Liquidity Event” and marked “strictly confidential”;

a transfer notice under clause 10 of the Shareholders’ Agreement addressed to Mr Pillemer, also marked “strictly confidential”; and

a copy of a proposed sale agreement between WHSPPPL (as buyer) and NAB Asset Management Limited and any other sellers of Pengana shares.

The letter, transfer notice and proposed sale agreement disclosed that NAB intended to sell its shareholding in Pengana to WHSPPPL, and that WHSPPPL had agreed to acquire up to 73% of the shares in Pengana at a price of $143.179 per share.
In his affidavit sworn on 15 May 2020, Mr A Turnbull gave evidence that he read the documents received from Mr Pillemer on 23 December 2016 and that his understanding based on the documents and his previous discussions with Mr Pillemer was that:

“(a)   NAB would be selling its shares in Pengana to [WHSPPPL] for $143.179 per share;
(b)   the Tag Along Process would see every other shareholder in Pengana doing the same [with the exception of Mr Pillemer, who had already told Mr Turnbull that he intended to maintain a shareholding in Pengana];^[1]
(c)   these sales would occur at what I considered an undervalue based on my valuation of Pengana;
(d)   there was no prospect that [WHSPPPL] would list Pengana on the ASX; and
(e)   there was no clarity on the dividend policy [WHSPPPL] would institute in respect of Pengana.”
1. As corrected in paragraph 56 of Mr A Turnbull’s affidavit sworn on 20 July 2020.

Mr A Turnbull further deposed that:

“My attitude from this point onwards was that, unless the terms of the Tag Along Process changed, there would be no point seeking to have the Shares transferred to Maurtray as it would face the same or even worse problems if Pengana was owned by [WHSPPPL] as it did in the current structure in that:
(a)   the Shares represented a small, illiquid holding with no apparent exit strategy and the Loan Agreement continuing for the foreseeable future;
(b)   the dividend policy would be controlled by [WHSPPPL] and that may adversely affect the dividend pass through … [referring to the provisions introduced into the Loan Agreement by the Second Variation for “the Borrowers” to pay to “the Lender” the “Net Dividends” received in respect of the Shares, as “prepayments” that would be deducted from the principal sum owing under the Loan Agreement];
(c)   the best course would be to have the Shares sold as part of the Tag Along Process either by Maurtray or the Pillemer entity which held them with the proceeds used to repay the loan; and
(d)   whilst not an optimal outcome based on my valuation of Pengana, this would bring to an end Maurtray’s involvement on the best terms available.”

Mr A Turnbull’s evidence that he believed in December 2016 that there was “no prospect” of Pengana being listed on the ASX was challenged in cross-examination. Mr A Turnbull said that his understanding was that there was no prospect of that occurring in the foreseeable future, based on what he says Mr Pillemer had told him and based on his own characterisation of WHSP as a long-term investor (as to which Mr A Turnbull gave the inconsistent evidence referred to at [77]-[82] above).
On 26 December 2016, Mr A Turnbull sent an email to Mr Pillemer in the following terms:

“Thanks for all the docs … For our leg of the transaction, when are we likely to have the shares surrendered to us in order to tender them? Or are we going to get refinanced out by Soul Patts? I understand the tender dynamics but how will this interface with the loan and your requirements to maintain your shareholding? None of that is covered in the documents”.

Mr A Turnbull gave evidence that he did not receive a response to that email. However, Mr Pillemer gave evidence that he telephoned Mr A Turnbull shortly after receiving the email and they had a conversation to the following effect:

“RP: ‘I have indeed been able to get Soul Patts to agree to refinance you out. This will simplify things a lot for you and will enable Maurtray to avoid all the tender dynamics. As soon as we get back to work after the holidays, I will work on arranging the refinancing documents and I will try and get Maurtray its cash as soon as possible’.
AT: ‘It would be very good to get the cash soon’.”

Mr A Turnbull accepts that a conversation to this effect took place, but says that it occurred in January or February 2017 after the conversation referred to at [116] below.
On 26 December 2016, Mr Peter Hall announced his resignation as a director and Chief Information Officer of Hunter Hall. Mr Pillemer became aware of this announcement whilst on holidays. Mr Pillemer telephoned Mr Todd Barlow (the Chief Executive Officer of WHSP) on 27 December 2016 and urged him to contact Mr Hall and buy a stake in Hunter Hall so that “[w]e can then figure out how to put Hunter Hall together with Pengana. There would be great synergies in this.” Mr Pillemer deposed that he was hopeful that, if WHSP acquired a stake in Hunter Hall as he had suggested, WHSP might then facilitate a merger of Hunter Hall and Pengana.
In addition to contacting Mr Barlow, Mr Pillemer also contacted Mr Warwick Negus, who was a director of WHSP and a close business confidant of Mr Pillemer. He told Mr Negus that there was an opportunity for Pengana to buy Mr Hall’s stake in Hunter Hall and said to Mr Negus words to the effect that WHSP would need to front for Pengana in the deal.
On 30 December 2016, WHSP announced to the ASX that it had entered into an agreement to acquire 19.9% of the shares in Hunter Hall from Mr Peter Hall. The announcement stated that WHSP had offered to acquire Mr Hall’s remaining 24.05% stake in Hunter Hall and Mr Hall had stated his intention to accept that offer in the absence of a superior offer. The announcement also disclosed WHSP’s off-market takeover offer for all remaining Hunter Hall shares at $1.00 per share, with a bidder’s statement expected to be lodged with ASIC within two weeks and sent to Hunter Hall shareholders as soon as practicable thereafter.

In cross-examination, Mr Pillemer gave evidence he regarded himself as having done all of the inside work on the deal that led to WHSP’s acquisition of the 19.9% stake in Hunter Hall, and that he regarded that acquisition by WHSP as being for the benefit of Pengana and as the first step in what would ultimately be a merger of Pengana and Hunter Hall or some type of combination of those companies. Mr Pillemer thought that he had an understanding or “handshake agreement” with WHSP that the benefit of its acquisition of the 19.9% stake in Hunter Hall would accrue to Pengana.
On 4 January 2017, Mr A Turnbull became aware that WHSP had acquired a stake in Hunter Hall. Mr A Turnbull gave evidence that he became aware of that development “as a result of a market update of announcements made to the ASX which were the subject of alerts on the Bloomberg electronic platform which I subscribed to and which provided financial information across all the major markets in the world.” For reasons that are not explained by the evidence, Mr A Turnbull refers to WHSP’s acquisition as involving a 5% stake in Hunter Hall rather than the 19.9% stake referred to in the ASX announcement published on 30 December 2016. That announcement also referred to WHSP’s intention to acquire the remaining shares in Hunter Hall. Mr A Turnbull was not cross-examined about this discrepancy between the information that was in fact published at the time and the information that Mr A Turnbull says he became aware of at the time.
In cross-examination, Mr A Turnbull readily agreed that, when he became aware of this news, he immediately knew that there would be common ownership of a significant shareholder of both Pengana and Hunter Hall and it was possible that there would be a reverse merger or “backdoor listing” whereby Pengana shareholders became shareholders in a listed entity. Mr A Turnbull also said that there were reasons to believe that this would not be a good step for Pengana and there were also reasons to believe that WHSP was not a good fit for Hunter Hall. Mr A Turnbull did not identify those reasons. They were plainly insufficient for him to dismiss the possibility of a reverse merger which, on any view of the evidence, was a subject of the conversation that he subsequently had with Mr Pillemer.
In his affidavit sworn on 15 May 2020, Mr A Turnbull gave evidence that he contacted Mr Pillemer on 4 January 2017 after reading that update and they had a telephone conversation to the following effect:

“AT:   ‘I see that Soul Patts has taken 5% of the Hunter Hall. Does this have anything to do with the Pengana transaction?’
RP:   ‘It has nothing to do with it.’
AT:   ‘Are you sure there is no possibility of an IPO involving the Pengana shares?’
RP:   ‘None that I am aware of.’
AT:   ‘If there is to be an IPO that would be commercially very relevant to me – I need to know.’
RP:   ‘I have no idea. I can’t tell you anything.’”

In his further affidavit sworn on 20 July 2020, Mr A Turnbull added that Mr Pillemer said to him during the same conversation that knowledge of what “Soul Patts” and Hunter Hall were doing was “above my paygrade” (that is, above Mr Pillemer’s paygrade).
Mr A Turnbull deposed that he believed what Mr Pillemer said to him in that conversation because he trusted him and because what he said was plausible because Mr A Turnbull was aware that WHSP often took minority positions similar to that which it had taken in Hunter Hall. Mr A Turnbull was not cross-examined about his characterisation of WHSP’s acquisition of 19.9% of Hunter Hall and its publicly announced intention to acquire the remaining shares in Hunter Hall as taking a minority position. However, as referred to at [81] above, Mr A Turnbull did say in cross-examination that “there was no playbook for Soul Patts as a counterfactual”.
In cross-examination, it was put to Mr A Turnbull that his account of his conversation with Mr Pillemer (which Mr Pillemer denies) gave him no basis for believing that there would not be “an IPO”. Mr A Turnbull gave the following evidence:

“Q.    … What Mr Pillemer actually says to you when you're asking these questions is ‘Look I have no idea, I can't tell you anything’?
A.    Mm-hmm.
Q.    Let's just think about this. Hunter Hall was a publicly listed company?
A.    Yes.
Q.    Mr Pillemer was the CEO of Pengana?
A.    Yes.
Q.    What you were asking him directly is is there a prospect of there being some sort of merger between Hunter Hall and Pengana aren't you?
A.    Yes.
Q.    You knew full well that if there had been any negotiations along those lines that he had been involved in, it was close to inevitable that he would have been signed up on a confidentiality regime? Didn't you?
A.    Yes, in those situations you are wall crossed and have to sign an upstream confi in order to receive that information. Customarily done in capital markets transactions, I've done it hundreds of times.
Q.    And therefore he wouldn’t be able to tell you, to answer these questions you were asking?
A.   No, he would have signed an upstream confi to provide information to me as a lender to him and that that’s [sic] how you do these things.
Q.   What about the insider trading provisions, vis a vis the Hunter Hall shares? Wouldn't this be - wouldn't this be information not generally known to the market that might have a material effect on Hunter Hall shares?
A.   Yes, and I would be signed to a confidentiality agreement in that situation, as I am with other transactions.
Q.   But you were asking him outright about information that you knew was not generally available to the public because you didn't know it, right?
A.   Yeah.
Q.   And which you knew might well materially affect the valuation of Hunter Hall shares?
A.   Yes.
Q.   How can he possibly answer that question?
A.   By signing me up to a confi and I don't trade the shares, it's quite simple.
Q.   Where do you suggest that in any of your - this conversation?
A.   Why would I suggest he sign up to a confi if he denied it outright?
Q.   He actually said to you ‘I have no idea, I can't tell you anything’?
A.   In a normal situation like this, you would say you will need to sign a confidentiality agreement.
Q.   So you made an assumption did you?
A.   Yes, that he would act properly.”

As I have mentioned above, Mr Pillemer denied Mr A Turnbull’s account of the conversation referred to at [108]-[110] above.
In his affidavit sworn on 19 June 2020, Mr Pillemer gave evidence that he had a conversation with Mr A Turnbull a few days after WHSP’s acquisition of shares in Hunter Hall had been publicly announced. According to Mr Pillemer, he disclosed to Mr A Turnbull during this conversation the possibility of Pengana doing a deal with Hunter Hall. He gave evidence that Mr A Turnbull was “quick to identify” that a merger between Pengana and Hunter Hall would be “a logical outcome due to WHSP’s shareholdings in both companies as well as the obvious synergies between them”. Mr Pillemer deposed that his conversation with Mr A Turnbull on this occasion included an exchange to the following effect:

“RP:   ‘Did you see the amazing deal with Soul Patts did with Peter Hall. Well I think the ultimate result here could be that Hunter Hall will be merged into Pengana. This is a great opportunity for us as Hunter Hall would be an excellent synergistic fit. Almost all of their funds are in international equities and ours are in Australian equities. Also, there would be huge cost savings as we won’t need any of their cost base, so all their revenues could drop to our bottom line.’
AT:   ‘I thought you were going to say that. It would be good if you can pull that off. But I’m not sure you will be able to – sounds like you are maybe being too optimistic as usual.’
RP:   ‘It’s not going to be easy but I really think that I can make this happen. I’m thinking that we could reverse Pengana into Hunter Hall, which would place an offer from us in an advantageous position. I don’t really want to be public but I think it’s worth it. I’m intent on making this happen and I think you guys should really consider staying in Pengana.’
AT:   ‘I know you want us in, but we need to get out.’”

Mr A Turnbull denied that that any such conversation occurred.
In his affidavit sworn on 15 May 2020, Mr A Turnbull gave evidence that he had a further conversation with Mr Pillemer to the following effect on a date that he cannot now recall between 4 January and 10 January 2017:

“AT:   ‘Russ, I will take delivery the shares and have Maurtray tender them.’
RP:   ‘This might cause issues with the NAB and it would be better if I tendered them directly and pay the loan out in cash.’
AT:   ‘I will go along with that provided Maurtray gets whatever you get in equity terms.’
RP:   ‘Ok. I will pay the loan off based on the sale of shares at the tag-along price. I am highly geared at the moment so can only afford to repay the amount I get for the shares from Soul Patts.’”

Mr A Turnbull continued in his 15 May 2020 affidavit:

“As a result of this conversation, I was content for the Shares to be sold by the Pillemer entity which held them and not to be tendered to Maurtray and then sold as part of the Tag Along Process as the same price would be achieved either way and a transfer of the Shares to Maurtray would involve an additional step for no purpose.
At that time and subsequently, I was also mildly concerned about the interest of the financial press in any transfer of shares to Maurtray as my father was prime minister at the time.
However, that was a secondary consideration and, on its own, would not have prevented me from seeking a transfer of the Shares if I considered this offered more potential upside for Maurtray than a simple lump sum cash repayment at a low return.”

In his affidavit sworn on 22 September 2021, Mr A Turnbull deposed: “I was not concerned with public disclosure”. However, in cross-examination, he clarified that he was mildly concerned but it was a secondary consideration. Throughout his cross-examination, Mr A Turnbull adhered to his evidence that he was “mildly concerned” or had “very limited concerns” about any media attention or political embarrassment of his father that might occur if the Loan were to be repaid by PFH transferring its shares in Pengana to Maurtray and if it then became public knowledge that he and his sister, through Maurtray, had a stake in Pengana.
Returning to Mr A Turnbull’s account of his conversation with Mr Pillemer between 4 and 10 January 2017, there is no evidence of any reason why NAB, as the shareholder selling out of Pengana, would have any “issues” with PFH transferring the Shares to Maurtray in repayment of the Loan and Maurtray then tendering the shares in the tag along process for sale to WHSP. In cross-examination, Mr A Turnbull was unable to identify any reason why NAB would have any concern about the Loan Agreement if it was disclosed to them. Mr A Turnbull unsuccessfully endeavoured to deflect the line of questions relating to this issue by volunteering that he thought Mr Pillemer was concerned that he had not disclosed the Loan Agreement to NAB, but he was unable to explain why NAB would care about the existence of the Loan Agreement and he acknowledged that Mr Pillemer had never told him that the Loan Agreement had not been disclosed to NAB. Ultimately, Mr A Turnbull said that he himself had a “minor concern” about NAB or WHSP knowing that Maurtray had anything to do with the Shares.
As referred to at [101]-[102] above, it is after the alleged conversation referred to at [116] above that Mr A Turnbull says Mr Pillemer told him that he had “been able to get Soul Patts to agree to refinance you out” and promised to “work on arranging the refinancing documents” after the holidays and to “try and get Maurtray its cash as soon as possible”.
In cross-examination, Mr A Turnbull was pressed on several occasions about the reasons why the settlement between Maurtray and PFH was structured by Mr Pillemer going to the trouble of obtaining bridging finance from WHSP and paying the Loan out early, rather than simply transferring the Shares to Maurtray in accordance with the Loan Agreement. Mr A Turnbull consistently denied that this was to preserve confidentiality for himself or his family and maintained that he did not question Mr Pillemer about the structure of the transaction and that he was indifferent to the structure once he was satisfied that Maurtray would receive a cash payment equivalent to the price for which the shares could be sold as part of the NAB/WHSP transaction.
In his affidavit sworn on 19 June 2020, Mr Pillemer denied the conversation referred to [116] above. = In cross-examination, Mr Pillemer consistently denied that Mr A Turnbull had suggested that he would “take delivery of” the Shares and that Maurtray would then tender the Shares to WHSP in the tag along process. Mr Pillemer also denied that he said to Mr A Turnbull that it “might cause issues for the NAB” if Maurtray were to take delivery of the Shares and that “it would be better if [Mr Pillemer] tendered them directly”. Mr Pillemer was not pressed further on that denial and it was not put to him that it would in fact have “caused issues” with NAB if PFH had transferred the Shares to Maurtray and Maurtray had then sold them in the tag along process. Nor was it put to Mr Pillemer that he held any concern about that at the time. Mr Pillemer also denied saying to Mr A Turnbull that he would “pay the loan off based on the sale of shares at the tag along price” and that “I’m highly geared at the moment, so can only afford to repay the amount I get for the shares from Soul Patts”.
Mr Pillemer gave inconsistent evidence about one aspect of the alleged conversation referred to [116] above. Mr Pillemer initially said that Mr A Turnbull had said words to the effect “I will go along with that provided Maurtray gets whatever you get in equity terms”, but that this had been said earlier at their breakfast meeting on 14 December 2016 or in a conversation after that meeting in which Mr Pillemer had proposed using his WHSP loan and bridging finance to pay Maurtray out without PFH selling the Shares. A very short time later in his cross-examination, Mr Pillemer maintained that Mr A Turnbull had said words to the effect of “I’ll go along with that” (in the context just described) but denied that Mr A Turnbull had said words to the effect “provided Maurtray gets whatever you get in equity terms”. Mr Pillemer immediately acknowledged the inconsistency in his answers and said that, when giving the first answer he had been confused and had been focussing on the first part of the statement he was being asked about (“I’ll go along with that”) rather than the second part. Mr Pillemer did appear to me to have been flustered and confused at this stage during his cross-examination and it is plausible that he confused the words he was being asked about and was focussing on (“I’ll go along with that”) with the words that he attributes to in their conversation during or after the 14 December 2016 breakfast meeting referred to at [90]-[91] above (“[t]hat sounds like a good plan”).
In cross-examination, Mr Pillemer acknowledged that he did not tell Mr A Turnbull that Pengana had communicated with WHSP about a potential merger between Pengana and Hunter Hall. Nor did Mr Pillemer tell Mr A Turnbull that WHSP’s acquisition of the 19.9% stake in Hunter Hall was really for the benefit of Pengana. Mr Pillemer gave evidence that he did not consider that the “handshake agreement” referred to at [106] provided a basis for him to say that to Mr A Turnbull, even though Mr Pillemer regarded the “handshake agreement” as something from which WHSP would not renege.
On 11 January 2017, WHSP launched its full takeover bid for Hunter Hall by lodging its bidder’s statement, as had been foreshadowed in its 30 December 2016 announcement to the ASX.
On 13 January 2017, NAB issued a tag along notice to PFH under the tag along clause of the Shareholders’ Agreement. The tag along notice confirmed that no shareholder had accepted NAB’s offer of its shares in Pengana made by the transfer notice issued on 23 December 2016. Accordingly, NAB intended to transfer all of its shares in Pengana to WHSPPPL on the terms of the proposed sale agreement that was circulated with the transfer notice. The tag along notice required any Pengana shareholder wishing to sell its shares under the tag along process to notify NAB accordingly by 23 January 2017. The tag along notice stated that the total purchase price offered by WHSPPPL for PFH’s 42,840 shares in Pengana was $6,133,788.36 based on the price of $143.179 per share.
It is common ground that the sale of Pengana shares to WHSPPPL by NAB and other Pengana shareholders under the tag along process was a Liquidity Event under the Loan Agreement when completed on or about 1 March 2017. The tag along notice had foreshadowed 1 March 2017 as the likely date of the Liquidity Event. If the Loan Agreement had remained on foot as at 1 March 2017, the occurrence of the Liquidity Event would have triggered the Repayment Date under the Loan Agreement five days later.^[2]
2. See [27] above.
On 17 January 2017, Mr Barlow of WHSP introduced Mr Pillemer to Mr Kevin Eley, who was a director of Hunter Hall. Having been informed by Mr Barlow that Pengana was interested in exploring a merger with Hunter Hall, Mr Eley told Mr Pillemer that Hunter Hall had engaged an investment bank (Moelis & Co) to canvass the market for strategic solutions via a formal bidding process and that Hunter Hall was anticipating significant interest from “players in the market”. Mr Eley told Mr Pillemer that he was happy to suggest to Moelis & Co that they include Pengana in the process.
On 19 January 2017, Mr Pillemer met with Mr Julian Biggins of Moelis & Co. Mr Biggins told him that Moelis & Co would include Pengana in the process and they were anticipating a highly competitive process including numerous other parties.
On 23 January 2017, Pinnacle Investment Management Limited (Pinnacle) announced to the ASIX a competing off-market takeover offer for Hunter Hall at $1.50 per share, representing a 50% premium of WHSP’s offer that had been announced to the ASX on 30 December 2016.^[3]
3. See [105] above.
According to Mr Pillemer, Pengana had not engaged in any negotiations with the Hunter Hall board about a proposed merger before Pinnacle announced its bid. Pengana was still waiting for access to Hunter Hall’s due diligence room, which it was granted on 31 January 2017.
Pinnacle’s bid unleashed a bidding war for Hunter Hall between WHSP (through its wholly owned subsidiary WHSP Hunter Hall Pty Ltd) and Pinnacle. The bidding war commenced on 10 February 2017 with WHSP’s bid at $1.60 per share and Pinnacle’s counter-bid at $2.00 per share, both of which were announced to the ASX. Later that same day, Hunter Hall announced to the ASX that its independent directors recommended that Hunter Hall shareholders reject both bids and that the independent directors continued to explore strategic alternatives in the best interests of all Hunter Hall shareholders.
On 13 February 2017, WHSP announced to the ASX a further bid for Hunter Hall at $2.00 per share. Pinnacle responded on 14 February 2017 by announcing a counter-bid at $2.20 per share.
That was the state of play as at 15 February 2017 when Maurtray entered into the deed referred to at [172] below pursuant to which it agreed to accept the sum of $6,133,788.36 in full and final settlement of all monies owing under the Loan Agreement and Guarantee.
As will be seen below, the bidding process continued after 15 February 2017 and culminated in an agreement for a reverse takeover of Hunter Hall by Pengana that was announced to the ASX on 9 March 2017.
In his affidavit sworn on 19 June 2020, Mr Pillemer gave evidence that he had various telephone calls with Mr A Turnbull in the period after mid-January 2017 in which they discussed progress regarding the bridging loan. Mr Pillemer deposed that Mr A Turnbull told him during one of those conversations that: “The family is extremely appreciative of your efforts to obtain the Soul Patts refinancing.”

Alleged misleading or deceptive conduct claim by non-disclosure

The parties adopted the following passage from the judgment of Walton J in Ryan Wealth Holdings Pty Ltd v Baumgartner^[128] summarising the principles to be applied in determining whether silence or non-disclosure is misleading or deceptive in contravention of s 18 of the Australian Consumer Law:

“[574] Section 42 of the FTA (NSW) (like its TPA analogue) is contravened if the acts, omissions, statements and/or silence of the defendant, taken as a whole and considered in light of all relevant circumstances, are misleading or deceptive or are likely to mislead or deceive: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 (Campbell) at [102], Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 (Butcher) at [104]. Conduct is misleading if it induces, or is capable of inducing, error (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198; Rhone-Poulenc Agrochomie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490–491; Campbell at [25]; Butcher at [111]), and is likely to mislead or deceive where there is a real (or not remote) chance or possibility that the conduct will have that effect (Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87).
[575] Whether conduct has a tendency to lead into error is an objective question of fact to be determined on the basis of the conduct of the defendants as a whole viewed in the context of all relevant surrounding facts and circumstances: Campbell at [102], citing Butcher at [109]. The inquiry is an objective one, the focus being on the objective tendency of the conduct to induce an erroneous assumption on the part of a hypothetical individual, but taking into account the respective positions of the parties, including such matters as their knowledge of each other from previous dealings and their respective familiarity with the subject matter: Sutton v AJ Thompson Pty Ltd (In Liq) (1987) 73 ALR 233 at 240. The objective nature of this inquiry means that a finding that conduct is misleading or deceptive is not avoided merely because a plaintiff could, by proper inquiries, have discovered the misleading or deceptive conduct: Butcher at [111]; Henjo Investments Ply Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546.
[576] Where silence is relied upon as conduct giving rise to a contravention of the FTA (NSW) or TPA, the effect of the silence is considered in light of the relevant surrounding circumstances. An important question in this context is whether the plaintiff was reasonably entitled in all the circumstances to expect that the defendants would make a positive disclosure: OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120 at [178] and the authorities there cited, see also Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245; [2009] NSWSC 1 at [180]; Perpetual Trustee Co Ltd v Ishak [2012] NSWSC 697 at [96].
[577] As Gummow J said in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 41 (quoting Kimberly NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193 at 53,195):
‘… unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist.’”
128. (2018) 131 ACSR 236; [2018] NSWSC 1502 at [574]-[577].

As referred to at [327] above, Maurtray relies on clause 19 of the Loan Agreement as giving rise to an obligation or reasonable expectation of disclosure and rendering the non-disclosure of the undisclosed matters misleading or deceptive. The claim fails because clause 19, properly construed, did not oblige PPL or PFH to disclose the undisclosed matters, which were not received or accessible by PPL and PFH for the reasons explained above. A further reason why the claim fails as against Mr Pillemer is that he was not “the Borrower” and therefore had no disclosure obligations under clause 19 of the Loan Agreement.
In closing submissions, Maurtray contended that it had a reasonable expectation that the defendants would disclose the undisclosed matters not only because they were obliged to do so by clause 19 of the Loan Agreement (on Maurtray’s construction of that clause), but also because the defendants knew or ought reasonably to have known that:

Maurtray was considering its position in terms of the best return available from the repayment of the Loan;

in making that decision, Maurtray was reliant on what Mr A Turnbull was told by the defendants; and

the status and progress of the merger negotiations were relevant to such a decision as they related to whether the Shares would remain an illiquid investment in the event that Maurtray accepted a transfer of the Shares in repayment of the Loan.

The first two propositions are not established by the evidence. As I have found at [413] above, Maurtray was considering in December 2016 how best to “cash out” through the liquidity event triggered by NAB’s sale of its Pengana shares to WHSP whilst keeping Maurtray’s involvement with Pengana confidential. In that context, Mr A Turnbull embraced Mr Pillemer’s suggestion that he seek the agreement of WHSP to use part of the WHSP loan facility to pay Maurtray out. From 4 January 2017, Mr A Turnbull was aware of WHSP’s public announcement concerning its acquisition of a stake in Hunter Hall, its intention to seek to acquire the remaining shares in Hunter Hall and the bidding war between Pengana and Pinnacle for Hunter Hall. Mr A Turnbull was also aware of the possibility of a reverse merger, which he had identified himself and which I have found Mr Pillemer mentioned in their conversations on 4 January and 23 February 2017.^[129]
129. See the evidence and findings at [414]-[433] above.
As to the third proposition, I consider that Maurtray overstates the relevance of the merger negotiations, with the benefit of hindsight and erroneously assuming that the proposed merger was likely to proceed,^[130] at the same time as ignoring the confidentiality concerns that I have found were significant concerns for Mr A Turnbull and Maurtray at the time. More importantly, as the defendants submitted, Maurtray had no reasonable expectation that the merger negotiations between WHSP and/or Pengana and Hunter Hall would be disclosed to Maurtray. That is because clause 19 of the Loan Agreement, properly construed, did not require such disclosure and, on any view, the status and progress of the negotiations were confidential to Hunter Hall and WHSP (both ASX listed companies) and also to Pengana. Mr Pillemer’s knowledge of those negotiations was knowledge that he obtained in his capacity as CEO of Pengana and was not knowledge of PPL or PFH as explained at [494]-[496] above. Mr Pillemer was neither obliged nor at liberty to disclose that confidential information to Maurtray. The matters that I have found Mr Pillemer did discuss with Mr A Turnbull were WHSP’s acquisition of the 19.9% stake in Hunter Hall and its bids to acquire the whole of Hunter Hall, which were public knowledge, together with Mr Pillemer’s own views about the benefits of a merger in circumstances where the possibility of a merger was obvious to both him and to Mr A Turnbull from the publicly available information.
130. See [424]-[425] above.
For those reasons, Maurtray has failed to establish that the circumstances were such as to give rise to a reasonable expectation during the period up to and including 23 February 2017 that the defendants would make positive disclosure to Maurtray of the undisclosed matters.

Alleged misleading or deceptive conduct by partial disclosure

As referred to at [328] above, this alternative framing of Maurtray’s claim for alleged misleading or deceptive conduct is premised on the assumption that Mr Pillemer made the disclosures that he claims to have made on 4 January 2017 and 23 February 2017 (as I have found). Maurtray contends that, in circumstances where there was an increasingly realistic prospect of a merger between Pengana and Hunter Hall and it was likely by 15 February 2017 that the proposed merger would proceed, those disclosures were misleading or deceptive without disclosure of the undisclosed matters.
That alternative claim fails for two reasons. First, there was no reasonable expectation of disclosure of the undisclosed matters for the reasons explained above. Second, for the reasons explained at [424]-[425] above, the evidence does not establish that the proposed merger was increasingly realistic and was likely to proceed by 15 February 2017.

Causation and loss

The issues of causation and loss do not arise in light of Maurtray’s failure to establish the alleged breaches of the Loan Agreement and the alleged misleading or deceptive conduct. If those allegations had been proved, I would have concluded that Maurtray has failed to establish that it had suffered any loss because of the alleged conduct or breaches for the following reasons.
Mr A Turnbull’s evidence about what he would have done, or caused Maurtray to do, if he had known about the undisclosed matters is summarised at [183]-[186], [188]-[195] above and is founded on:

his evidence that, without that disclosure, he was proceeding on the basis that “the Shares were an illiquid investment and [Pengana] was valued at $80 million … translating to a price as part of the Tag Along Process of $143.179 per share”;^[131] and

his evidence that he would have acted differently if he had been told in late 2016 or early 2017 “that there was even a slight prospect that the Shares could be realised on-market either directly through an IPO or by a merger with a listed entity”.^[132]
131. See [184] above.
132. See [186] above.

I reject Mr A Turnbull’s evidence that he was proceeding on the basis that the Shares were an illiquid investment for the same reasons as I have rejected his evidence concerning his conversations with Mr Pillemer on 14 December 2016 and during the period from 4 January 2017 and found that those conversations occurred in the terms described by Mr Pillemer.^[133] Maurtray has failed to establish what it described as its primary case that the defendants represented to it at all relevant times up to 24 February 2017 that, if the Shares were transferred to Maurtray, it would end up with an illiquid investment as a minority shareholder in Pengana (as there was no prospect of an IPO), that the Shares were being sold in the tag along process triggered by the NAB transaction and that the best available return for Maurtray on the Loan was to accept an amount equivalent to that which would be paid for the Shares in that tag along process.
133. See [393]-[423] above.
I also reject the notion that Mr A Turnbull did not know that there was even a slight prospect that the Shares could be realised on-market. On his own evidence, the 30 December 2016 announcement of WHSP’s acquisition of a stake in Hunter Hall alerted Mr A Turnbull to the possibility of a reverse merger whereby Pengana shareholders would become shareholders in the listed entity Hunter Hall. WHSP’s subsequent pursuit of Hunter Hall was the subject of the bidding war with Pinnacle that played out in a series of competing offers announced to the ASX. Mr A Turnbull’s own evidence is that he was aware of events in the financial markets concerning WHSP and Hunter Hall.^[134]
134. See [108], [125], [130]-[134] and especially [139] above.
I have found that Mr Pillemer informed Mr A Turnbull on or about 4 January 2017 that he (Mr Pillemer) thought that the ultimate result of WHSP acquiring a stake in Hunter Hall “could be that Hunter Hall will be merged into Pengana”^[135] and that there was a further discussion between them about the possibility of a “reverse takeover” on 23 February 2017, during which Mr Pillemer offered to “reverse” the Settlement Deed if Maurtray wanted to “stay in” Pengana.^[136] However, even if I had accepted Mr A Turnbull’s evidence about the 4 January 2017 conversation in which Mr A Turnbull says that Mr Pillemer told him that he (Mr Pillemer) was not aware of a possibility of an IPO, that “I can’t tell you anything” and that information about what WHSP and Hunter Hall were doing was “above my paygrade”, I would have rejected Mr A Turnbull’s evidence that he “believed what Mr Pillemer told me” and proceeded on the understanding that there was no prospect of Pengana shares becoming listed. As the defendants submitted, the substance of what Mr A Turnbull says Mr Pillemer told him on 4 January 2017 provides no rational basis for him to believe that there was no prospect of Pengana shares becoming listed. His evidence that he held that state of mind as a result of the conversation that he claims to have had with Mr Pillemer on 4 January 2017 is not credible, particularly in light of his own evidence referred at [522] above.
135. See [114] and [422] above.
136. See [208] and [426]-[433] above.
With the knowledge of WHSP’s announcement to the ASX on 30 December 2016 and the subsequent bidding war between WHSP and Pinnacle for Hunter Hall and (as I have found) after Mr Pillemer had discussed the possibility of a reverse merger with him, Mr A Turnbull continued on the path to implementing Mr Pillemer’s December 2016 proposal to maintain confidentiality by drawing on his loan from WHSP to pay out Maurtray prior to completion of the NAB transaction at a price equivalent to that offered by WHSP to NAB. That path ultimately resulted in Maurtray entering into the Settlement Deed and accepting the sum of $6,133,788.36 in settlement of the Loan and Mr A Turnbull declining the opportunity offered by Mr Pillemer on 23 February 2017 for Maurtray to “reverse” the settlement and “stay in” Pengana. As I have found at [434]-[446] above, Mr A Turnbull had significant concerns about disclosure of Maurtray’s involvement in Pengana. I find that those concerns were the reason why Mr A Turnbull did not seek to have the Shares transferred to Maurtray in repayment of the Loan, as stated in his message to Mr Pillemer on 5 June 2017.
I reject Mr A Turnbull’s evidence that he would have sought to have the Shares transferred to Maurtray if he had been informed about the undisclosed matters. For the reasons explained at [424]-[425] above, the undisclosed matters did not render the proposed merger increasingly likely throughout January and February 2017 or likely to proceed by 15 February 2017. More importantly, the notion that Mr A Turnbull would have done so is irreconcilably inconsistent with his conduct after he was aware that the merger agreement had been announced and after that transaction was closed on terms that were known to him. Armed with that knowledge, Mr A Turnbull did not suggest to Mr Pillemer that he would have taken the Shares. On the contrary, he maintained that he could not have done so. Nor did Mr A Turnbull seek to negotiate an outcome whereby Maurtray would have shares in the merged listed entity PCG that it could then sell on-market so as to put it in the same position it would ultimately have been in if it had taken a transfer of the Shares in repayment of the Loan. Mr A Turnbull’s negotiations were directed instead to an outcome that would avoid any disclosure requirements. I refer in particular to his message to Mr Pillemer on 6 June 2017 stating that “ideally” the structure would be “cash and thus not require disclosure”^[137] and his messages to Mr Pillemer on 23 August 2017 in which Mr A Turnbull conveyed the advice of Maurtray’s solicitor that “the best way to do this is a private settlement – zero disclosure” and his own view that “I don’t think there’s any way to do a share transaction without a filing which would be a) disclosable and b) cause Stuart to go mental”.^[138]
137. See [257] above.
138. See [273] above.
I also reject Mr A Turnbull’s evidence that, as an alternative to having the Shares transferred to Maurtray, he would have negotiated for PFH, PPL or Mr Pillemer to make a cash payment of $17,755,428 (being the Repayment Amount calculated in accordance with the Loan Agreement as at 15 February 2017) rather than the $6,133,788.36 that Maurtray accepted under the Settlement Deed. Again, Mr A Turnbull did not seek to negotiate that outcome with Mr Pillemer in the period after the merger and its actual terms (as opposed to modelled values and exchange ratios) were known to him. The Repayment Amount under the Loan Agreement was calculated on the basis of a 15% internal rate of return for the lender.^[139] Mr A Turnbull sought to negotiate for an additional payment to Maurtray that would have resulted in an internal rate of return of approximately 5.5% when added to the dividends that had been passed through during the term of the Loan Agreement and the $6,133,788.36 paid under the Settlement Deed.^[140]
139. See [26] above.
140. See [300] above.
For the same reasons, I reject Mr A Turnbull’s evidence that, as a further alternative, he would have negotiated for PFH, PPL or Mr Pillemer to make a cash payment of $12,000,000 in the alternative to the full Repayment Amount.
Even if I had not rejected Mr A Turnbull’s evidence that he would have sought to negotiate a payment of either $17,755,428 or $12,000,000 for the Shares, the evidence does not establish on the balance of probabilities that he would have succeeded in that negotiation. In his affidavit sworn on 14 September 2021, Mr Pillemer gave evidence to the effect that he did not have access to that kind of money at the time and that he would have transferred the Shares to Maurtray rather than pay an amount in excess of the Settlement Deed sum to discharge the Loan. Mr Pillemer deposed that he understood at the time that he was entitled to choose under the Loan Agreement whether to pay an amount of money to Maurtray or transfer the Shares to Maurtray. That understanding was correct. He also understood at the time that he had a contractual right under the Pengana Share Loan Share Plan to a line of credit of up to $6,000,000 to purchase shares in Pengana at $143.179 per share. Mr Pillemer deposed that, while he was anxious to protect the Turnbull family from any public exposure, he would ultimately have acted in what he considered to be his own best financial interests. If he had transferred the Shares to Maurtray in repayment of the Loan and used the line of credit to acquire Pengana shares, he would have been in the same commercial position as if he had paid $6,000,000 to Maurtray and kept the shares. Accordingly, Mr Pillemer deposed that there is no prospect that he would have agreed with Mr A Turnbull to pay more than $6,000,000 for the Shares, regardless of what he (Mr Pillemer) might have thought about the value of the Shares at the time. As Maurtray submitted, that evidence is contradicted by Mr Pillemer’s own conduct in offering in mid-December 2017 to pay an additional $3,000,000 to Maurtray over and above the $6,133,788.36 that had already been paid under the Settlement Deed. However, the payment of between approximately $6,000,000 and $11,000,000 over and above the Settlement Deed sum is a very different thing to the payment of an additional $3,000,000. Whilst it was put to Mr Pillemer in cross-examination that he could have paid a total sum of $17,000,000 or $12,000,000 to Maurtray over time by selling down his PCG shares as they were released from escrow, he was not challenged about his evidence that he would not have done so and that, if Mr A Turnbull had demanded or insisted upon such a sum, Mr Pillemer would have exercised the Borrower’s right under the Loan Agreement to repay the Loan by causing PFH to transfer the Shares to Maurtray.
The evidence does not establish on the balance of probabilities that the unpleaded further alternative course of action that Mr A Turnbull introduced in his affidavit sworn on 22 September 2021 and in cross-examination was an available course of action.^[141] As was put to Mr A Turnbull in cross-examination, that alternative would have required the agreement of the Hunter Hall directors for Mr Pillemer and his entities to transfer 5,149,796 shares in PCG (being the equivalent of 42,840 Pengana shares)^[142] to Maurtray immediately after the merger on the basis that Maurtray would then sell those shares. I reject Mr A Turnbull’s assertion that the Hunter Hall directors could not reasonably have objected to such an arrangement because it would be giving effect to a “pre-existing agreement”. As he himself acknowledged, the arrangement in fact departed from the Loan Agreement.^[143] Maurtray’s submission that the Hunter Hall directors would not have objected because only shareholders associated with the investment management team were subject to escrow arrangements after completion of the merger misses the point. In this most recent iteration of Mr A Turnbull’s counterfactual scenarios, the Shares would have been held by Mr Pillemer or one of his associated entities at the time of the merger and therefore would have been associated with the investment management team. The question is whether Mr Pillemer would nevertheless have been permitted to transfer them to Maurtray immediately after the merger. As Maurtray submitted, no evidence was adduced from any Hunter Hall witness about this. Maurtray bears the onus of proof and it has failed to discharge that onus.
141. See [188]-[195] above.
142. See [217] above.
143. See [194] above.

However, the more fundamental problem with the unpleaded alternative counterfactual is that it is wholly inconsistent with Mr A Turnbull’s conduct from June 2017 when he knew about the merger and its actual terms. By no later than 12 August 2017, he had formed the view that Maurtray had “left ~$10mm on the table”. Yet he did not seek to negotiate for Mr Pillemer or one of his entities to provide the “additional value” that Mr Pillemer had agreed in principle to provide by seeking a partial release from his escrow arrangements to transfer some shares in PCG to Maurtray, or to agree to hold shares in PCG for the benefit of Maurtray, or to transfer them to Maurtray in the future after the expiry of the escrow arrangements. On the contrary, Mr A Turnbull told Mr Pillemer on 23 August 2017 that “the best way to do this is a private settlement – zero disclosure” and that “I don’t think there’s any way to do a share transaction without a filing which would be a) disclosable and b) cause stuart to go mental”.^[144] The “private settlement” that Mr A Turnbull was negotiating for was a payment of $9 million less moneys already received,^[145] which was calculated by reference to an internal rate of return for Maurtray and not by reference to the value of the PCG shares that RCP had received in the merger in exchange for the Shares. There was some debate between Mr A Turnbull and Mr Pillemer about whether $9 million less moneys already received amounted to approximately $3.45 million, as Mr A Turnbull contended, or approximately $2.2 million, as Mr Pillemer contended. Mr M Turnbull’s evidence is that Mr Pillemer offered “a sum of some $3 million” at the meeting in mid-December 2017.^[146] Mr A Turnbull’s evidence is that the sum of $3 million was agreed during late November or early December 2017.^[147]
144. See [273] above.
145. See [269] above.
146. See [274]-[314] above.
147. See [289] above.
In short, Mr A Turnbull’s evidence about the alternative courses of action that he now says he would have taken is not credible because it is irreconcilably inconsistent with his own words and conduct in the period after June 2017 when he knew about the merger and its actual terms and the actual outcome in terms of value for Pengana shareholders (as opposed to modelled values and exchange ratios).
Maurtray effectively submitted that causation was self-evident because it is “commercially implausible … that Mr A Turnbull would have been prepared to forego millions of dollars for the sake of what he wrongly perceived may be adverse publicity for his father”.
I reject that submission.
As the defendants submitted, Maurtray’s submission is made with the benefit of hindsight. When its decision fell to be made in February 2017, it was not known whether the proposed merger would proceed at all or what the outcome for Pengana shareholders would be if it did proceed. Critical terms such as the exchange ratio had not been agreed.
Maurtray’s submission also fails to grapple with the evidence that I have accepted that Mr Pillemer and Mr A Turnbull did discuss confidentiality concerns prior to 15 February 2017^[148] and is irreconcilable with Mr A Turnbull’s own statements about confidentiality and disclosure concerns in the period from June 2017. As the defendants submitted, it is not to the point that Mr A Turnbull’s concerns did not align with the views of Mr M Turnbull. The evidence of Mr A Turnbull’s words and conduct demonstrates that he did hold those concerns. In making that finding, I have not found it relevant or necessary to refer to the media articles published during Mr M Turnbull’s prime ministership that the defendants tendered and from which they urged various inferences to be drawn. As I have noted earlier in these reasons, there is no evidence that confidentiality issues were the subject of any discussion between Mr A Turnbull and his father in which Mr M Turnbull might have said anything to allay his son’s concerns. Mr M Turnbull was not challenged about his evidence that Mr A Turnbull did not consult him about his decision to accept the payment under the Settlement Deed rather than taking a transfer of the Shares.^[149]
148. See [55] and [382], [90] and [413] above.
149. See [443] above.
More importantly, as the defendants submitted and as described in detail above, Mr A Turnbull’s own words and conduct in the period from June 2017 demonstrate that, with full knowledge of the terms of the merger and believing that he had left approximately $10 million on the table, he was prepared to do exactly that which Maurtray now submits is “commercially implausible”. Mr A Turnbull was prepared to negotiate for an additional payment in the order of $3 million, foregoing several millions of the money that he considered he had left on the table. His own messages to Mr Pillemer reveal that he was prepared to do so because, at that time, he remained concerned to avoid any disclosure of Maurtray’s connection with Pengana which had by then been merged with Hunter Hall to form PCG.
Notwithstanding my conclusions above, it is appropriate to record the following observations in case any issue concerning damages arises in the context of any appeal.
If Maurtray had proved the alleged breaches of clause 19 of the Loan Agreement and misleading or deceptive conduct and had proved that it would have taken a transfer of the Shares in repayment of the Loan if those alleged breaches and conduct had not occurred, I would have accepted Mr A Turnbull’s evidence referred to at [186] that he would have then caused Maurtray to exchange the 42,840 Pengana shares for 5,149,796 shares in the merged entity PCG,^[150] following which he would have caused Maurtray to sell those shares on the market in June 2017. That is consistent with the undisputed evidence that Mr A Turnbull wanted Maurtray to “cash out” and had been looking for a way for it to do so from the time that the Loan was assigned to Maurtray in November 2015.
150. See [217] above.
I would have accepted Maurtray’s submission that the difference between the sum of $6,133,788.36 paid to it under the Settlement Deed and the price that it would have received for the PCG shares by selling them on the market in June 2017 represented an appropriate measure of damages.
Insofar as the claim in contract is concerned, that measure of damages would represent a sum which, if breach and causation had been proved, would place Maurtray in the same situation as if the contract had been performed.^[151] I accept Maurtray’s submission that, whilst damages for breach of contract are generally assessed as at the date of the breach, that is not an absolute rule. In circumstances where the alleged breaches of contract concern non-disclosure of information about the merger, I would have held that it would be unjust to Maurtray to assess damages as at the date of each alleged breach or, as the defendants submitted, as at 15 February 2017. Such an approach would not reflect the nature of the claim, being that Maurtray would have taken a different course of action if the contract had been performed by taking the Shares and then selling them on market at the earliest opportunity after the merger. To assess damages at a point in time before Maurtray could have completed that course of action would be artificial and would not give effect to the compensatory principle in the circumstances of this case.^[152]
151. Robinson v Harman (1848) 1 Ex 850 at 855; 154 ER 363 at 365.
152. J D Heydon, Heydon on Contract (2019) at [26-220].
If Maurtray had established that the alleged misleading or deceptive conduct induced it to enter into the Settlement Deed rather than taking that alternative course of action, I would have considered that measure of damages to appropriately reflect the remedial purpose of s 18 of the Australian Consumer Law for the same reasons referred to immediately above.^[153]
153. Henville v Walker (2001) 206 CLR 459; (2001) 182 ALR 37; [2001] HCA 52, especially at [135] (McHugh J, Gummow J agreeing); I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; (2002) 192 ALR 1; [2002] HCA 41 at [33] (Gleeson CJ).
In support of its claim for damages assessed as the difference between the Settlement Deed sum and the amount for which it could have sold 5,149,796 PCG shares on the market in June 2017, Maurtray relied on a chart extracted from the ASX website showing share price information for PCG for the month of June 2017.^[154] Maurtray submitted that the average price for PCG shares during the week of 2 to 9 June 2017 was $2.88 per share and its damages should therefore be assessed on the basis that it would have sold all of the 5,149,796 PCG shares during that week at an average price of $2.88 each amounting to a total of $14,831,412.48. Maurtray submitted that, after deducting the Settlement Deed sum from that total, the quantum of its damages is $8,697,624.12.
154. Mr A Turnbull’s evidence referred to at [186] above and Exhibit 1, pp 1801-1802.
However, as the defendants submitted, the share price chart also contains a graph that plots the volume of shares traded each day in the range between zero to 500,000 shares and in excess of 500,000 shares. That graph shows that the volume of PCG shares traded during the week of 2 to 9 June 2017 was zero on some days and negligible on other days. Indeed, that was the case for the whole of June 2017, with the exception of three days on which it appears that between about 250,000 and 500,000 shares were traded and one day on which slightly in excess of 500,000 shares were traded. There is no evidence that would provide a basis for the Court to infer or assume that the sale of 5,149,796 PCG shares on the market during the week of 2 to 9 June 2017, or even during the whole of June 2017, would not have exerted downwards pressure on the price of PCG shares. Any such inference or assumption would be speculative. At the same time, there is no evidence that would provide a basis for the Court to make an informed estimate of the likely price that would have been achieved for PCG shares during the week of 2 to 9 June 2017, or even during June 2017, if the volume of shares available for sale during that period had increased by 5,149,796 shares.
I accept that an estimate of that nature is inherently difficult and involves some element of imprecision, and that this nature of the exercise does not relieve the Court of the obligation to assess damages as best it can on the basis of the available evidence, provided that it has a rational foundation to make an estimate. It is for the plaintiff to adduce such evidence as is reasonably available that will provide that rational foundation. Although the Court is required to do its best, justice does not dictate that a figure be “plucked out of the air”.^[155] Maurtray has failed to adduce such evidence in this case. It did not call expert evidence that would have provided some basis for an estimate by opining as to the relationship between the volume and price of PCG shares at that time, having regard to the limited trading in PCG shares that did occur, any trading in shares of comparable companies at the same time, and the state of the market or relevant segments of the market at that time. There is no reason why Maurtray could not adduce such evidence. I reject its submission that these are matters in respect of which the defendants bore the onus of proof.
155. Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; [1991] HCA 54 (Mason CJ and Dawson J); Placer (GrannySmith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; (2003) 77 ALJR 768; [2003] HCA 10 at [38] (Hayne J, Gleeson CJ, McHugh and Kirby JJ agreeing); Troulis v Vamvoukakis [1998] NSWCA 237; Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847 at [95]; J D Heydon, Heydon on Contract (2019) at [26-100].
As the defendants submitted, this is a case in which the evidence adduced by Maurtray fails to provide a rational foundation for a proper estimate of damages and I would therefore have declined to make one.
For completeness, I note that Maurtray effectively abandoned its claim for damages for loss of opportunity as no submissions were directed to that question.

Conclusion and Orders

For the foregoing reasons, there will be an order dismissing the proceedings. I am not aware of any reason why costs should not follow the event but I will make directions to facilitate the parties being heard on the question of costs if they wish to be heard.
The orders and directions of the Court are:

Order that the proceedings are dismissed, save in relation to the question of costs which is reserved for determination on the papers.

Direct any party seeking a costs order other than an order that the plaintiff pay the defendants’ costs of the proceedings on the ordinary basis as agreed or assessed to file and serve written submissions in relation to costs by 4pm on 9 September 2022, such submissions not to exceed 4 pages in length.

Direct the parties to file and serve any responsive submissions in relation to costs by 4pm on 16 September 2022.

Note that, if no submissions are filed and served in accordance with orders 2 and 3 above, an order will be made in chambers that the plaintiff pay the defendants’ costs of the proceedings on the ordinary basis as agreed or assessed.

**********

Endnotes

Decision last updated: 02 September 2022

Medium Neutral Citation:	Maurtray Pty Limited v Pillemer Pty Limited [2022] NSWSC 1181
Hearing dates:	27, 28, 29 and 30 September and 18 November 2021
Date of orders:	02 September 2022
Decision date:	02 September 2022
Jurisdiction:	Equity - Commercial List
Before:	Williams J
Decision:	Proceedings dismissed - see paragraph [548].
Catchwords:	CONTRACTS – construction of clause in loan agreement requiring borrower to give to lender certain documents or information “received or accessible by” the borrower – where the sole shareholder and director of the borrower companies was also the chief executive officer (but not the directing mind and will) of another company – held that confidential information of that other company received by its chief executive officer in his capacity as such was not attributed to and was not “received or accessible by” the borrower companies within the meaning of the clause MISLEADING OR DECEPTIVE CONDUCT – alleged misleading or deceptive express and implied representations – held that alleged representations not proved – alleged misleading or deceptive conduct by silence or partial disclosure – allegations not proved because (inter alia) no reasonable expectation that undisclosed matters would be disclosed
Legislation Cited:	Corporations Act 2001 (Cth), ss 11, 12,183 and 1043A Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), ss 18, 79, 236
Cases Cited:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Henville v Walker (2001) 206 CLR 459; (2001) 182 ALR 37; [2001] HCA 52, I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; (2002) 192 ALR 1; [2002] HCA 41 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 McGrath v Stueresteps (2011) 81 NSWLR 690; [2011] NSWCA 315 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Newey v Westpac Banking Corporation [2014] NSWCA 319 Placer (GrannySmith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; (2003) 77 ALJR 768; [2003] HCA 10 Robinson v Harman (1848) 1 Ex 850; 154 ER 363 Ryan Wealth Holdings Pty Ltd v Baumgartner (2018) 131 ACSR 236; [2018] NSWSC 1502 Sanpoint Pty Ltd v V8 Supercars Holdings Pty Ltd (2019) 134 ACSR 424; [2019] NSWCA 5 Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847 Troulis v Vamvoukakis [1998] NSWCA 237 Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrsaptd) (in liq) (No.2) (2011) 297 ALR 56; [2011] FCA 1123 Watson v Foxman (1995) 49 NSWLR 315 WIN Corporation Pty Ltd v Nine Network Australis Pty Ltd (2016) 341 ALR 467; [2016] NSWCA 297
Texts Cited:	J D Heydon, Heydon on Contract (2019) P Herzfeld and T Prince, Interpretation (2nd ed, 2020) R P Austin and I M Ramsay, Ford, Austin and Ramsay’s Principles of Corporations Law (17th ed, 2018)
Category:	Principal judgment
Parties:	Maurtray Pty Limited (ACN 086 027 027) (Plaintiff) Pillemer Pty Ltd (ACN 120 539 488) (First Defendant) Pillemer Family Holdings Pty Ltd (ACN 130 257 680) as trustee for the Pillemer Family Trust (Second Defendant) Mr Russel Craig Pillemer (Third Defendant)
Representation:	Counsel: Mr I Jackman SC with Mr T Marskell (Plaintiff) Mr C R C Newlinds SC with Ms M E Hall (Defendants) Solicitors: Mills Oakley (Plaintiff) Deutsch Miller (Defendants)
File Number(s):	2020/68897
Publication restriction:	N/A