SUPREME COURT OF QUEENSLAND

CITATION:	PFJV Pty Ltd v Bartter Enterprises Pty Ltd [2024] QSC 114	
PARTIES:	PFJV PTY LTD (ACN 614 586 4444) AS TRUSTEE FOR THE DONNYBROOK RAINBOW TRUST AND THE DONNYBROOK KUIKENS UNIT TRUST
(Plaintiff)
v
BARTTER ENTERPRISES PTY LTD (ACN 000 451 374)
(Defendant)	
FILE NO/S:	BS 3716 of 2019	
DIVISION:	Trial Division	
PROCEEDING:	Trial	
DELIVERED ON:	6 June 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	25, 26 and 28 March 2024	
JUDGE:	Bowskill CJ	
ORDERS:	The plaintiff’s claim is dismissed.  	
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the plaintiff purchased a broiler chicken farm in November 2016 – where there was an existing broiler chicken (processing) contract in place for the farm between the seller, Repstar, and the defendant, and the existence of such a contract was necessary for the effective operation of the farm – where the broiler chicken contract was later assigned from Repstar to the plaintiff – where the broiler chicken contract included a termination clause, which provided for termination by the defendant in the event of closure of the processing plant on the giving of three months’ notice – where, in August 2017, the defendant notified the plaintiff it was closing its processing plant, and gave formal notice of termination under the contract – where, on 20 August 2016, prior to the purchase of the farm, a person who would  later, once it was incorporated, become a director of the plaintiff, Mr Vorster, had a brief conversation with the general manager of the defendant’s Queensland operations, Mr Rapa – where the plaintiff’s directors say they relied on this conversation in deciding to cause the plaintiff to purchase the farm – where the plaintiff alleges that Mr Rapa failed to tell Mr Vorster that it was probable that, in or about 2017, the defendant would close its processing plant – where the plaintiff also alleges that the defendant failed to correct what Mr Rapa had said, or disclose this information, prior to consenting to the assignment of the broiler chicken contract to the plaintiff – whether the alleged conduct occurred, and was misleading or deceptive, in contravention of s 18 of the Australian Consumer Law – whether the defendant knew it was it probable that the processing plant would close in or about 2017 – whether, in any event, there was any obligation on the defendant to disclose its internal considerations in relation to the future of the processing plant – whether the directors of the plaintiff or, later, the plaintiff, relied on what was said by Mr Rapa in deciding to complete the purchase of the farm
Competition and Consumer Act 2010 (Cth), sch 2, ss 18(1), 236, 237
Addenbrooke Pty Ltd v Duncan (No 2) (2017) 348 ALR 1
Asden Developments Pty Ltd (in liq) v Dinoris (No 3) (2016) 114 ACSR 347
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ASAL 55-139
Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564
Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458
Lord Buddha Pty Ltd (in liq) v Harpur (2013) 41 VR 159
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357
Norcross Pictorial Calendars Pty Ltd v Central Coast Council [2020] NSWSC 1201
Nu v NSW Secretary of Family and Community Services (2017) 95 NSWLR 577
Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd (2011) 248 FLR 293
SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633
Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 408 ALR 195
Software Integrators Pty Ltd v Roadrunner Couriers Pty Ltd (1997) 69 SASR 288
	
COUNSEL:	G A Thompson KC, A G Psaltis and F L Wood for the plaintiff
G A Sirtes SC, A Rae and A Smorchevsky for the defendant	
SOLICITORS:	Colin Biggers & Paisley for the plaintiff
Prandium Legal for the defendant	

Introduction
[1]	Mr Vorster and Mr Feitelson are experienced businesspeople with varied backgrounds:  Mr Vorster was a tax adviser for many years before becoming involved in farming; Mr Feitelson practised as an architect and has been an active property investor and developer for many years.  In 2016, they decided to invest in a broiler chicken farm at Donnybrook (broilers are chickens grown for meat production and consumption).  The plaintiff, of which Mr Vorster and Mr Feitelson are the directors, was incorporated for this purpose and the purchase was completed in November 2016.  To operate effectively, a chicken farm generally needs to be near a chicken processing plant. That is the defendant’s business, as part of a group of companies called Baiada, which sells chickens under the “Steggles” and “Lilydale” brands.  Ordinarily, the chicken farmer (in this case, the plaintiff) provides the land, sheds, equipment, labour and management for the raising of the chickens.  The chicken processor (in this case, the defendant) provides the chicks, feed, medication and technical advice to the grower, and pays the grower a fee for raising the chickens to the required sizes, which vary depending on the market.  Once grown, the chickens are transported live to a processing plant where they are processed for sale.  
[2]	Prior to purchasing the Donnybrook farm, Mr Vorster had a brief conversation with Mr Rapa, who was at that time the general manager of the defendant’s Queensland operations, including its live poultry plant at Wulkuraka in Ipswich.  The plaintiff alleges that Mr Vorster was misled by some things Mr Rapa said, and did not say, in that conversation – in particular, the failure to tell Mr Vorster that it was probable that, in or about 2017, the defendant would close its processing plant at Wulkuraka.  The plaintiff’s case is that Mr Vorster (and Mr Feitelson) relied on those things said and not said in deciding to purchase the farm; with the plaintiff ultimately being nominated as the purchaser.  The plant was in fact closed in January 2018, with notice of that being given to the plaintiff in August 2017.  The plaintiff says it has suffered a loss as a result, either on the basis that it would not have bought the farm at all, or as compensation for the loss of profits in the time it took to organise a replacement contract with another chicken processor.
[3]	The issues to be determined are:
(a)	What was said, and not said, in the conversation between Mr Vorster and Mr Rapa on 20 August 2016?
(b)	As at 20 August 2016, did the defendant know it was probable that, in or about 2017, it would, effectively, close the Ipswich plant?
(c)	Was the defendant under any obligation to disclose its considerations in relation to closure of the plant to Mr Vorster and Mr Feitelson or the plaintiff?
(d)	Did Mr Vorster and Mr Feitelson rely on what Mr Rapa said or did not say in deciding to cause the plaintiff to enter into the contract to purchase the Donnybrook farm?  
(e)	Has any loss been suffered?
[4]	Before turning to address those issues, it is helpful to start with a broad understanding of the principles that are to be applied, the particular allegations relied upon by the plaintiff and the circumstances in which the plaintiff came to buy the Donnybrook farm.
Misleading and deceptive conduct – some relevant principles
[5]	The rule is well known: a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.  A person who has suffered loss or damage because another person engaged in such conduct may recover compensation.
[6]	The relevant principles, and approach to be taken, were recently restated by the High Court in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 408 ALR 195 at [80]-[81], as follows:
“[80]	The principles are well established. Determining whether a person has breached s 18 of the ACL involves four steps: first, identifying with precision the ‘conduct’ said to contravene s 18; second, considering whether the identified conduct was conduct ‘in trade or commerce’; third, considering what meaning that conduct conveyed; and fourth, determining whether that conduct in light of that meaning was ‘misleading or deceptive or … likely to mislead or deceive’.
[81]	The first step requires asking: ‘what is the alleged conduct?’ and ‘does the evidence establish that the person engaged in the conduct?’. The third step considers what meaning that conduct conveyed to its intended audience. As in this case, where the pleaded conduct is said to amount to a representation, it is necessary to determine whether the alleged representation is established by the evidence. The fourth step is to ask whether the conduct in light of that meaning meets the statutory description of ‘misleading or deceptive or … likely to mislead or deceive’; that is, whether it has the tendency to lead into error. Each of those steps involves ‘quintessential question[s] of fact’.
[82] 	The third and fourth steps require the court to characterise, as an objective matter, the conduct viewed as a whole and its notional effects, judged by reference to its context, on the state of mind of the relevant person or class of persons. That context includes the immediate context – relevantly, all the words in the document or other communication and the manner in which those words are conveyed, not just a word or phrase in isolation – and the broader context of the relevant surrounding facts and circumstances. It has been said that ‘[m]uch more often than not, the simpler the description of the conduct that is said to be misleading or deceptive or likely to be so, the easier it will be to focus upon whether that conduct has the requisite character’. That said, the description of the conduct alleged and identified at the first step should be sufficiently comprehensive to expose the complaint, because it is that conduct that will ultimately, as a whole, be determined to be or not to be misleading or deceptive.”
[7]	In analysing the alleged conduct, the following observations, made by Gleeson CJ, Hayne and Heydon JJ in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [37], are relevant:
“The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known. … It [is] crucial to examine the role of the person in question [who is said to have engaged in the conduct].”
[8]	In the present case, it is silence or non-disclosure of information that is said to have been misleading or deceptive. The relevant principles were summarised by Gilmore and White JJ in Addenbrooke Pty Ltd v Duncan (No 2) (2017) 348 ALR 1 at [482]-[483]:
“[482]	On our understanding, the principles concerning misleading or deceptive conduct by non-disclosure or silence which emerge from the authorities and which are pertinent in the present appeal may be summarised as follows: 
 (a) 	conduct involving silence or non-disclosure may, in some circumstances, constitute misleading or deceptive conduct; 
 (b) 	in considering whether conduct is misleading or deceptive, silence or non-disclosure is to be assessed as a circumstance like any other; 
 (c) 	mere silence without more is unlikely to constitute misleading or deceptive conduct. However, remaining silent will constitute misleading or deceptive conduct if the circumstances are such as to give rise to a reasonable expectation that, if some relevant fact does exist, it will be disclosed; 
 (d) 	the existence or otherwise of such a reasonable expectation is to be determined objectively; 
 (e) 	it is not possible to categorise all of the circumstances in which a reasonable expectation of disclosure may arise. Such circumstances may exist when either the law or equity imposes a duty of disclosure, when a statement conveying a half-truth only is made (see Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97; 111 ALR 649 at [75]), when the representor has undertaken a duty to advise, when a representation with continuing effect, although correct at the time it was made, has subsequently become incorrect, and when the representor has made an implied representation;
 (f) 	in considering whether a party engaged in commercial dealing may have a reasonable expectation that a fact, if it exists, will be disclosed, it is to be remembered that it will often be the case that one party to a commercial dealing has more knowledge about a relevant matter than the other and yet will not, in accordance with ordinary commercial expectations, be guilty of misleading or deceptive conduct in failing to make that knowledge known to the other.
 [483] Ultimately, as indicated at the commencement of this reference to the principles, the determination of whether a failure to disclose a matter is misleading or deceptive requires an examination of all the circumstances. If in the circumstances, assessed objectively, a representee would have been entitled to expect or infer (have a reasonable expectation) that an undisclosed matter would be disclosed, that may well constitute misleading or deceptive conduct: Clifford v Vegas Enterprises Pty Ltd [2011] FCAFC 135 at [198].”
[9]	Relevantly, in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, French CJ and Kiefel J said the following:
“20	In commercial dealings between individuals or individual entities, characterisation of conduct will be undertaken by reference to its circumstances and context. Silence may be a circumstance to be considered. The knowledge of the person to whom the conduct is directed may be relevant. Also relevant, as in the present case, may be the existence of common assumptions and practices established between the parties or prevailing in the particular profession, trade or industry in which they carry on business. The judgment which looks to a reasonable expectation of disclosure as an aid to characterising non-disclosure as misleading or deceptive is objective. It is a practical approach to the application of the prohibition in s 52.
21	To invoke the existence of a reasonable expectation that if a fact exists it will be disclosed is to do no more than direct attention to the effect or likely effect of non-disclosure unmediated by antecedent erroneous assumptions or beliefs or high moral expectations held by one person of another which exceed the requirements of the general law and the prohibition imposed by the statute. In that connection, Robson A-JA in the Court of Appeal spoke of s 52 as making parties ‘strictly responsible to ensure they did not mislead or deceive their customer or trading partners’. Such language, while no doubt intended to distinguish the necessary elements of misleading or deceptive conduct from those of torts such as deceit, negligence and passing off, may take on a life of its own. It may lead to the imposition of a requirement to volunteer information which travels beyond the statutory duty ‘to act in a way which does not mislead or deceive’. Cicero, in his famous essay On Duties, seems to have contemplated such a standard when he wrote:
 ‘Holding things back does not always amount to concealment; but it does when you want people, for your own profit, to be kept in the dark about something which you know and would be useful for them to know.’
 	It would no doubt be regarded as an unrealistic expectation, inconsistent with the protection of that ‘superior smartness in dealing’ of which Barton J wrote in W Scott, Fell & Co Ltd v Lloyd, that people who hold things back for their own profit are to be regarded as engaging in misleading or deceptive conduct. As Burchett J observed in Poseidon Ltd v Adelaide Petroleum NL, s 52 does not strike at the traditional secretiveness and obliquity of the bargaining process.  But his Honour went on to remark that the bargaining process is not to be seen as a licence to deceive, and gave the example of a bargainer who had no intention of contracting on the terms discussed and whose silence was to achieve some undisclosed and ulterior purpose harmful to a competitor.
22	However, as a general proposition, s 52 does not require a party to commercial negotiations to volunteer information which will be of assistance to the decision-making of the other party. A fortiori it does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard, for its own interests, of another party of equal bargaining power and competence. Yet that appears to have been, in practical effect, the character of the obligation said to have rested upon Miller in this case.”
[10]	Earlier, in Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475, Gleeson CJ (then of the New South Wales Supreme Court) said this, of commercial negotiations:
“Where parties are dealing at arms’ length in a commercial situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that other party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice. It would normally only be if there were an obligation of full disclosure that a different result would follow. That could occur, for example, by reason of some feature of the relationship between the parties, or because previous communications between them gave rise to a duty to add to or correct earlier information.”
[11]	The plaintiff emphasises that its case is not based solely on silence, but also on the basis of a failure to qualify something that it alleges was said by Mr Rapa.  This might be described as a “half-truth” case.  In that regard, the next paragraph in French CJ and Kiefel J’s reasons in Miller is relevant:
“23	Reasonable expectation analysis is unnecessary in the case of a false representation where the undisclosed fact is the falsity of the representation. A party to precontractual negotiations who provides to another party a document containing a false representation which is not disclaimed will, in all probability, have engaged in misleading or deceptive conduct. When a document contains a statement that is true, non-disclosure of an important qualifying fact will be misleading or deceptive if the recipient would be misled, absent such disclosure, into believing that the statement was complete. In some cases it might not be necessary to invoke non-disclosure at all where a statement which is literally true, but incomplete in some material respect, conveys a false representation that it is complete.”
[12]	An aspect of the present case, as will be explained below, is that Mr Rapa, the person alleged to have engaged in misleading and deceptive conduct on behalf of the defendant, did not know the thing he is alleged to have failed to disclose.  There is authority that for silence to be actionable as misleading or deceptive conduct, it must be deliberate or intentional.  This is said to follow from the explanation of “refusing to do an act” in the context of the meaning of “conduct” in s 2(2) of the ACL, as including a reference to “refraining (otherwise than inadvertently) from doing that act”.  On the other hand, it has been said that the “misleading and deceptive quality of remaining silent inheres in the non-disclosure of information; not in any refusal to provide it.  Consequently, it does not follow from the fact that a failure to act must be intentional in order to be actionable, that silence must be intentional in order to be actionable”.  In some cases, in order to reconcile these two competing views, it has been said that the requirement that silence be deliberate is confined to cases of “mere silence”.  That is reflected in the statement of principle, affirmed in Addenbrooke at [482(c)], that mere silence without more is unlikely to constitute misleading or deceptive conduct.  What follows, however, is that “remaining silent will constitute misleading or deceptive conduct if the circumstances are such as to give rise to a reasonable expectation that, if some relevant fact does exist, it will be disclosed” – a reminder that “the significance of silence falls to be considered in the context in which it occurs”. 
[13]	It has, of course, long been established that, for the purposes of s 18 of the ACL, it is not necessary to demonstrate any intention to mislead or deceive.  For that reason, in the case of an alleged non-disclosure it is not necessary to show that the alleged contravenor knew of the facts not disclosed; although of course it goes without saying that the so-called “facts” not disclosed must exist.
[14]	With those principles in mind, the first task is to identify, with precision, the conduct said to contravene s 18.  I will do that first by reference to the plaintiff’s pleaded case.
The alleged conduct – as pleaded by the plaintiff
[15]	The plaintiff pleads that by 20 August 2016 (the date of the pivotal conversation between Mr Vorster and Mr Rapa):
(a)	closure of the Wulkuraka plant had been the subject of submissions to meetings of the advisory board; and
(b)	the Baiada group and the defendant knew it was probable that in or about 2017 the defendant:
(i)	would cease live processing at the Wulkuraka plant;
(ii)	would cease processing broiler chickens grown at the Donnybrook farm;
(iii)	would cease performing the obligations under the Donnybrook broiler contract.
[16]	This is denied by the defendant, which says that, at this time, it had no intention to close the Wulkuraka plant.
[17]	The plaintiff pleads that, during the conversation between Mr Vorster and Mr Rapa on 20 August 2016:
(a)	Mr Vorster said words to the effect that Mr Vorster and Mr Feitelson desired to acquire Donnybrook farm and to take an assignment of the Donnybrook broiler contract – this is admitted;
(b)	Mr Vorster said words to the effect that Mr Vorster and Mr Feitelson had experience in growing broiler chickens for Inghams by reason of their involvement in another broiler chicken growing business – this is admitted;
(c)	Mr Rapa said words to the effect that the defendant would be unlikely to refuse an assignment of the Donnybrook broiler contract as Mr Vorster and Mr Feitelson appeared to be suitable growers with adequate experience – this is admitted;
(d)	Mr Vorster said words to the effect that he and Mr Feitelson required a letter of intent or some form of letter from or on behalf of the defendant confirming the intention to grant Mr Vorster and Mr Feitelson a new five year contract or to assign the existing contract in order to secure funding for the acquisition of the Donnybrook farm – this is partially admitted; the italicised words are denied;
(e)	Mr Rapa said words to the effect that he was aware of funders requiring some sort of comfort, because in his experience other growers tended to require it, but that he did not see the requirement to be a problem – this is also partially admitted; the italicised words are denied;
(f)	Mr Vorster asked Mr Rapa whether it was possible for Mr Vorster and Mr Feitelson to have a new five year contract or expand the terms of the existing contract to accommodate their funder’s requirements – this is denied;
(g)	Mr Rapa said words to the effect that the defendant’s preference was to assign the existing contract because the defendant was trying to get all growers on the same contractual terms with all contracts coming to an end on, or close to, the same date – this is denied;
(h)	Mr Rapa said words to the effect that he did not see that assigning the existing contract would be a problem from the perspective of Mr Vorster and Mr Feitelson’s funder, because, pursuant to the contract, there was an initial term and a renewal term which had the effect of extending the contract for a further five years – this is denied;
(i)	Mr Rapa said words to the effect that the renewal term of five years generally occurs automatically and that he had a number of growers in South East Queensland on similar contracts, some of whom had been growing for over 20 years – this is denied;
(j)	Mr Rapa said words to the effect that the initial term plus the renewal term was subject to performance being satisfactory, but that if a grower performs well, there should be no reason why the initial term would not be extended for a further five years – this is denied; and
(k)	in response, Mr Vorster asked Mr Rapa how was the operation of the farm generally, to which Mr Rapa responded that he was happy with the operation of the farm – this is admitted, save for the italicised part.
[18]	The “initial non-disclosure” alleged is that, knowing the things alleged in paragraph 17 of the statement of claim, the defendant did not, during or about the time of the 20 August 2016 conversation, disclose those matters to Mr Vorster or Mr Feitelson.   The plaintiff did not exist at this time.
[19]	A “further non-disclosure” is alleged on the basis that at the time of granting its consent to the assignment of the broiler contract to the plaintiff (in October or November 2016), the defendant, knowing the things alleged in paragraph 17 of the statement of claim, did not disclose those things to Mr Vorster, Mr Feitelson or the plaintiff.
[20]	The “initial non-disclosure” and the “further non-disclosure” are, together  described as the “representations by silence”, with the plaintiff alleging it had a reasonable expectation that the defendant would disclose those things to it.
[21]	The plaintiff also pleads that, by the statements it alleges Mr Rapa made (in subparagraphs (h), (i) and (j) above), the defendant impliedly represented that no fact or matter of the kind pleaded in paragraph 17 of the statement of claim existed.  And, in so far as those statements related to future matters, the defendant failed to qualify the statements made by Mr Rapa by reference to the things in paragraph 17.  In this way, the plaintiff says its case is not one of “mere silence”, but rather engages the principle articulated in Miller at [23] (set out above).
[22]	There are two key factual disputes to resolve, in order to determine the question whether the defendant engaged in the alleged conduct (comprising the initial and further non-disclosures and the implied representation):  as at 2016, did the defendant know it was probable that in or about 2017 the defendant would, effectively, close the Wulkuraka plant; and did Mr Rapa say the things the plaintiff alleges, in the conversation on 20 August 2016?
[23]	Before turning to address those questions, I will refer to the evidence of how the plaintiff came to buy the Donnybrook farm.  This is an important part of the context in which the alleged conduct and its alleged effect are to be considered.
How the plaintiff came to buy the Donnybrook farm
[24]	Mr Vorster’s interest in broiler farms started in late 2014, when he decided to take up farming rather than continue to work as a tax advisor in an accounting firm.  Mr Vorster had met Mr Feitelson in about 2013 and they agreed to go into business together.  They now, via various corporate entities, own and operate four broiler farms:
(a)	a farm at Elimbah purchased in 2015;
(b)	the Donnybrook farm, purposed in 2016;
(c)	a farm at Wamuran purchased in 2017; and
(d)	a farm at Toorbul purchased in 2019.
[25]	Mr Vorster was said to have a more “hands on role” in relation to the farming businesses, having worked full-time in that business since March 2015.  His role is to oversee the operation of the farms, including managing the broiler contracts (that is, the contracts with chicken processors).  Mr Feitelson was described as the “money man”.  They are both, however, experienced and sophisticated businesspeople.
[26]	The purchase of the Elimbah farm was completed in March 2015.  It had from the outset the benefit of a broiler contract with Inghams, a major competitor of the defendant’s.
[27]	At the time of purchasing the Elimbah farm, Mr Vorster and Mr Feitelson also considered purchasing the Donnybrook farm.  However, they decided not to because the farm was “at that time, in need of substantial repair and would require capital expenditure to improve its facilities”.  The Donnybrook farm was instead bought, in March 2015, by another entity, Repstar Pty Ltd (a company which is now deregistered).  Mr Reppel was a director of Repstar Pty Ltd.
[28]	Just over a year later, in May 2016, after an approach from a friend about investment opportunities, Mr Vorster and Mr Feitelson decided they should consider buying more chicken farms.  Mr Vorster thought of the Donnybrook farm as a “possible acquisition target”, given that he had already looked at it in 2015; he knew of Mr Reppel from his involvement in the industry and knew that “he had spent significant capital in repairing the farm infrastructure”; it was near the Elimbah farm they already owned; it was one of the biggest broiler farms at the time in south east Queensland; Mr Vorster had “an optimistic view of broiler farming”; and he was aware his bank “had a positive appetite for broiler farms”.
[29]	Mr Vorster contacted Mr Reppel by email on 31 May 2016 asking if he was interested in selling the Donnybrook farm.  Mr Reppel responded to say he would be willing to discuss a sale, at a particular price per bird, but made it clear that “[t]he way we operate in all transactions is to state the value at which we will do business” and “[w]e don’t engage in horse trading or prolonged negotiations”.
[30]	Mr Vorster, Mr Feitelson and Mr Reppel subsequently met, on 26 July 2016, to discuss the possible sale of the Donnybrook farm.  Mr Vorster says that Mr Reppel explained that he had recently entered into a broiler contract with Steggles (a brand name associated with Baiada, that is, the defendant).  Mr Vorster says he responded that he and Mr Feitelson had an existing contract with Inghams for their Elimbah farm and that they might try to work out whether they could supply Inghams from the Donnybrook farm as well.  Mr Feitelson, likewise, says he thought it would be easier to have both farms with the same chicken processor, as they already had an established relationship with Inghams; but both Mr Vorster and Mr Feitelson thought it was “far-fetched” that the defendant would allow an early termination from its existing contract in relation to the Donnybrook farm.  Mr Reppel said he would need to obtain advice about Repstar’s obligations to Steggles under its existing contract.  
[31]	They evidently discussed the price at which Mr Reppel (or Repstar) would agree to sell the Donnybrook farm and a mechanism for the sale, involving a call option deed. That is apparent from the email that Mr Reppel sent to Mr Vorster on 29 July 2016, in which he records that:
“We discussed the $50,000 up-front payment and I have agreed to it being part of the $500,000 call option payment, but it will be immediately non-refundable.  So $500k paid on signing of call option, $50k of which is immediately released to us.  The remaining $450k stays in Trust until Due diligence is completed, then released and is non-refundable.  On Settlement, the whole $500k is deductable off the $9.75M purchase price.  You are unsure if you intend to continue as a Steggles grower or change to Inghams.  I am obtaining advice on my obligations to Steggles under my Contract and what notice periods are required etc.”
[32]	From their first exchanges, Mr Reppel made it clear he would not negotiate about the price; it was a “take it or leave it” situation.
[33]	Having obtained advice, Mr Reppel came back to Mr Feitelson, on 2 August 2016, to say that it seemed there was no formal mechanism to terminate the contract with the defendant, except by mutual agreement, so Repstar would need to assign the contract to the new purchasing entity.  He suggested to Mr Feitelson that “you can then enter into discussions with Baiada after settlement”.  Mr Reppel provided a copy of Repstar’s existing broiler chicken contract with the defendant to Mr Feitelson and Mr Vorster by email on 4 August 2016.
[34]	The broiler chicken contract between the defendant and Repstar was made on 24 June 2015 and commenced on 1 July 2015.  The contract provided for an initial term of 5 years and a renewal term of 5 years.  In relation to the renewal term, clause 2.2 provided as follows:
“Subject to this Clause, this Contract will be automatically extended, on one occasion only, for the further period of the Renewal Term from the Initial Expiry Date.  The Contract will not automatically extend if either party gives not less than 12 months’ notice in writing to the other party prior to the Initial Expiry Date that it does not wish this Contract to be automatically extended for the further period of the Renewal Term from the Initial Expiry Date but rather, it wishes to terminate this Contract on the Initial Expiry Date.  If this written notice is given, the Contract will not be extended.”
[35]	Clause 25 dealt with termination.  Relevantly, clause 25.1 provided for the contract to be terminated at any time by the agreement of the parties, in writing.  Clause 25.4 provided as follows:
“If, for any reason, the Processor (or a related body corporate) closes its processing business which is most proximate to the Farm in the State, or closes the processing plant that generally processes the Broiler Chickens raised on the Farm, or there is a cessation of the operations of such processing business or processing plant, then the Processor may terminate this Contract by giving 3 months’ notice in writing terminating this Contract.”
[36]	Mr Vorster says that, around this time (August 2016), he had a conversation with a representative of Inghams, Mr van Beek, who was responsible for negotiating new contracts on behalf of Inghams.  Mr Vorster says he asked “whether Inghams would be in a position to give us a broiler contract” and that Mr van Beek said that Inghams “could not guarantee us a contract because they were in the process of listing on the ASX and, as a result, it would be a while before any contract could be considered”.   Consequently, Mr Vorster and Mr Feitelson agreed that Mr Vorster would approach the defendant and enquire whether it would be willing to enter into a new growing contract or consent to an assignment of the existing contract with Repstar.
[37]	Between Mr Vorster and Mr Feitelson it was also decided that Mr Feitelson would enter into the call option deed with Repstar.  He signed it on 16 August 2016.  The reasons for adopting this mechanism included that it gave them time to conduct both physical and legal due diligence in relation to the farm, to decline to proceed if they were not satisfied with the outcome of that process and, in the meantime, “it effectively prevented the Donnybrook Farm from being offered to other interested parties, which might result in a bidding war”.  The deed contemplated that Mr Feitelson (as buyer under the deed) could appoint a nominee to purchase the property in his place upon exercising the call option.  A copy of the proposed sale contract was annexed to the deed, recording the agreed purchase price of $9,750,000.00.  As discussed further below, the proposed sale contract was not conditional (relevantly, on finance or obtaining an assignment of the broiler chicken contract).
[38]	At about the same time, on 19 August 2016, Mr Vorster and Mr Feitelson were provided with an “indicative letter”, setting out the terms on which their bank would be willing to fund the purchase of the Donnybrook farm.  This included, as part of the “likely approval conditions”, a requirement for “presentation of executed contracts with Inghams/  Baiada”.
[39]	Mr Vorster asked Mr Reppel to make arrangements for him to speak to “Baiada’s local representative”, so that he could ask some questions about the Donnybrook farm, including whether Baiada “would be prepared to grant a new contract to the purchasing entity … or assign the existing contract and also whether the defendant would have any issues with [Mr Feitelson and Mr Vorster] buying Donnybrook and continuing to grow for Baiada when we already had a farm that was contracted to Inghams”.  
[40]	Mr Vorster’s and Mr Feitelson’s preferred option was to enter into a new contract with Inghams (for the Donnybrook farm), given their existing relationship with Inghams in relation to the Elimbah farm.  Although Mr Feitelson resisted conceding this, it is apparent from the manner in which the contractual arrangements were approached.  As to why remaining with Inghams (for the Donnybrook farm) “was an option at all”, Mr Feitelson said “[b]ecause there is always a concern that a contract may not run out to the end”, “[t]hat’s commercially a risk to anyone, whether it be property or chicken farms”.
[41]	Mr Reppel introduced Mr Vorster and Mr Feitelson to Mr Rapa, by email sent on 20 August 2016.  In that email, Mr Reppel told Mr Rapa that his understanding was that “they would like to meet with you to discuss the Steggles side of the business as part of their Due Diligence process”.  Mr Vorster telephoned Mr Rapa on 20 August 2016 to speak with him.  They had never met or spoken with one another before.  I will address the evidence of this conversation in detail shortly.
[42]	Mr Feitelson instructed Hickey Lawyers to undertake the legal due diligence exercise, which took place between about 20 August to 2 September 2016.  Mr Vorster was also involved in providing the instructions.  The scope of that exercise was expressly limited in a number of respects.  Relevantly, it did not extend to any advice in relation to the broiler chicken contract.  That was because Mr Vorster and Mr Feitelson were of the view that, based on their own experience, having already entered into a broiler chicken contract for the Elimbah farm, and their “ability to read”, they did not need any assistance understanding the terms of the broiler chicken contract for Donnybrook.   
[43]	On 7 September 2016, a lawyer from Hickey Lawyers wrote to the lawyer for Repstar to “confirm that our client [Mr Feitelson] is satisfied with his legal due diligence enquiries”. Arrangements were then made for the “physical due diligence”, that is, inspection of the farm itself.  It seems there was only one issue identified through this process, which concerned local government approval for one of the sheds.  To address this, Mr Feitelson and Repstar agreed to reduce the purchase price slightly, by $50,000. 
[44]	The plaintiff was incorporated on 1 September 2016.  The call option was exercised on 14 September 2016, with the plaintiff being nominated as the purchaser.  The plaintiff signed the Donnybrook Sale Contract on that date.  Repstar signed the contract on 16 September 2016.
[45]	The sale contract was unconditional – that is, the plaintiff was bound to purchase the farm property from this date.  By clause 18, the risk, such as it might be, in relation to the assignment of the broiler chicken contract, fell on the plaintiff (which was obliged to comply with the terms of that, and other, agreement(s), even if an assignment had not occurred by settlement, and to indemnify Repstar for any loss it may suffer as a result of any act or default of the plaintiff under such an agreement).  This is significant, in terms of the plaintiff’s claim in this proceeding, because, as next addressed, no letter of intent or confirmation of consent to the assignment had yet been received. 
[46]	The plaintiff completed an application for finance on 21 September 2016.  Mr Vorster says that, on about 27 September 2016, he telephoned Mr Rapa, because his lawyer had not yet received any letter of comfort or other document confirming that the Donnybrook broiler contract would be assigned to the purchasing entity.  Mr Vorster says he told Mr Rapa that he was “following up on the letter of intent” and that Mr Rapa said the matter was “with his head office”.
[47]	The defendant did ultimately provide a letter of intent on 11 October 2016, which stated:
“This letter is to confirm that Bartter Enterprises Pty Limited is prepared to agree to the assignment (draft attached) of the current Broiler Chicken Contract for the property at 66 Burke Road, Donnybrook from Repstar Pty Ltd to PFJV Pty Ltd ATF Donnybrook Rainbow Unit Trust on the day of settlement of the acquisition of the property which we understand to be between 30 October and 5 November 2016.”
[48]	The deed of assignment of the chicken broiler contract, recording the defendant’s consent to the assignment, was signed on 2 and 14 November 2016, and took effect on and from 3 November 2016. 
20 August 2016 conversation
[49]	The conversation between Mr Vorster and Mr Rapa on 20 August 2016 is central to the plaintiff’s case – it is what Mr Vorster and Mr Feitelson say they relied on, in deciding to cause the plaintiff to be incorporated and purchase the Donnybrook farm.
[50]	It is not in issue that Mr Rapa, as the general manager of the defendant’s Queensland operations, including the Wulkuraka plant, was (partly at least) responsible for communication on behalf of the defendant with growers and prospective growers of broilers chickens; and that it was within the scope of Mr Rapa’s authority as such to communicate on behalf of the defendant with Repstar, Mr Vorster and Mr Feitelson in relation to the latter’s proposed purchase of the Donnybrook farm and proposed assignment of the broiler contract. Mr Rapa was not, however, authorised to consent to or approve an assignment of a broiler contract – he would refer any such requests to Mr Simon Camilleri, but would “try to ascertain things which may be relevant to whether we [the defendant] would consent to an assignment, such as the incoming grower’s chicken farming experience and how they plan to manage their business”, before referring the request to Mr Camilleri.  
[51]	The conversation on 20 August 2016 took place over the telephone.  It was a brief conversation, lasting about five or maybe 10 minutes. Although the conversation took place over seven years ago, and neither man took notes of it, they both say they have a good recollection of the conversation.
[52]	Mr Rapa presented as a credible witness who, I find, gave a reliable account, including as to the respects in which he could not recall certain things, but was willing to agree he may have said them.  I did not form an adverse view of the credibility of Mr Vorster as a witness either (in fact neither party urged the court to make broad adverse credit findings against any of the witnesses).  But the practical reality is that there were some differences between their respective accounts, and I must make findings in an attempt to reconcile the differing versions.  
[53]	Counsel for the plaintiff submitted that I should prefer and accept the whole of Mr Vorster’s evidence of this conversation for two primary reasons.  The first was because this was an important conversation for Mr Vorster and therefore he should be found to have a better recollection of it.  The second was on the basis of a submission that counsel for the defendant did not, contrary to the rule in Browne v Dunn, directly put to Mr Vorster that his recollection of the conversation was inaccurate in any respect or suggest to him that certain things were not said; therefore his evidence is unchallenged and should be accepted in full.
[54]	As to the first submission, I do not find it a compelling reason to prefer Mr Vorster’s evidence that this was an important conversation from his perspective – on the contrary, that he has an interest in contending for a particular version would more likely make one circumspect about accepting his version.  However, I have not approached my assessment of the evidence of the conversation on this basis.
[55]	I do not accept the second submission.  For the relevant principles, I adopt the following from the reasons of Beazley P in Nu v NSW Secretary of Family and Community Services (2017) 95 NSWLR 577:
“57	… The meaning of the rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16:
‘It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.’
 58	There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is:
‘… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.’
See also West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161 at [94]–[97] (Campbell J).
59	There is another aspect of fact finding which is presently relevant. A failure to cross-examine on an issue does not require the fact finder to accept the witness’ evidence. In Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382; [2009] NSWCA 234 the court (Campbell JA; Allsop P and Basten JA agreeing) stated, at [105]:
‘[105] While the evidence was not cross-examined on, that does not necessarily mean that the judge was obliged to accept it. A judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he accepted, or if it was inherently incredible.’ (Citations omitted)”
[56]	In the present case, it could not be clearer from the pleadings that particular parts of the contents of the conversation between Mr Vorster and Mr Rapa are disputed.  In addition, the plaintiff had the benefit of a summary of Mr Rapa’s evidence. In those circumstances, it was not necessary for counsel for the defendant to put to Mr Vorster that his recollection was inaccurate in those few respects where it differed from Mr Rapa’s. And, as counsel for the defendant submitted, if I accepted the plaintiff’s submission in this regard I would have to apply that same reasoning to the evidence of Mr John Camilleri and Mr Macri, which was not specifically challenged in cross-examination.  However, for the same reasons, I do not consider counsel for the plaintiff was required to specifically put contrary propositions to those witnesses, as all were on notice about the disputed issues.
[57]	The following contextual factors are relevant.  As already noted, by the time of this conversation, Mr Vorster and Mr Feitelson had agreed upon the purchase price for the farm, and Mr Feitelson had entered into the call option deed.  Mr Vorster and Mr Feitelson had also received a copy of the broiler contract, about two weeks before.  They were, in any event, familiar with the terms of broiler chicken contracts, which Mr Vorster described as fairly “standard” within the industry, including a termination clause like clause 25.4.  They are experienced businesspeople.  The context of the conversation was not a commercial negotiation between contracting parties – but rather an enquiry from a person proposing to buy a farm from another party (Repstar), about whether the defendant – with whom Repstar had an existing contractual arrangement – would be willing to consent to an assignment of that contract or provide some form of “letter of intent” for that purpose, which was needed to obtain finance for the purchase.
[58]	That purpose was identified by Mr Vorster as the number one reason for wanting to speak to Mr Rapa:  because he and Mr Feitelson already had a relationship with Inghams, a competitor of the defendant’s (or Baiada’s), he wanted to “get some comfort that Baiada would be prepared to give us a contract if we acquire the farm”, notwithstanding their relationship with its competitor.  He wanted to know “whether that relationship with Inghams would be a problem”.  In that context, Mr Vorster outlined to Mr Rapa the experience that he and Mr Feitelson already had growing chickens, which was the matter of interest to Mr Rapa.  He says that Mr Rapa “indicated that should not be a problem”, that they “seemed to be suitable and adequate growers”, and that the only requirement would be that they have the “capability of growing chickens plus an experienced manager to be present on the farm”.  Mr Rapa recalls Mr Vorster asking whether his relationship with Inghams would pose a problem, and if there would be any objection to him purchasing the farm. Mr Rapa says “I did tell him at the time that it wasn’t my decision, but given the information he had told me, I did not believe there would be any”.
[59]	I have emphasised the word “should” in that part of Mr Vorster’s evidence because it is clear from the evidence of both Mr Vorster and Mr Rapa, just referred to, that Mr Rapa made it plain that the decision – to consent to any assignment, or provide a letter of intent – was not his to make.  This is also an important contextual feature of the conversation.
[60]	Mr Rapa recalls that Mr Vorster said he had never dealt with Baiada before “so wanted to understand a little bit about our business”.  Mr Rapa told Mr Vorster Baiada was a privately-owned company, that processed chickens at the Wulkuraka site and also had a number of other processing sites throughout the country, about Baiada’s brands (Steggles and Lilydale) and “what we were doing to grow as a business”.  
[61]	Mr Vorster says he asked Mr Rapa whether he was happy with Ted Smart, who was the current manager of the farm.  Mr Vorster says that Mr Rapa responded that “he was happy with Ted and … he worked well with Ted”.  Mr Rapa agrees that Mr Vorster asked him if he was happy with the current manager, but says he does not know who Ted Smart is.   I accept Mr Rapa’s evidence in this regard and find that to the extent there is a difference between Mr Vorster’s and Mr Rapa’s evidence in relation to this, it reflects unintentional embellishment on Mr Vorster’s part – that is, I do not find he is dishonest in his recollection, but infer he has embellished his recollection of the conversation in this respect.
[62]	Mr Vorster says the next reason for contacting Mr Rapa was to find out whether there was anything to be repaired on, or any major upgrades required to, the farm.  Mr Vorster says that Mr Rapa responded that he was aware Mr Reppel had spent significant dollars in upgrades on the farm when he acquired it (which Mr Vorster was already aware of) and that as far as he was aware there was only general maintenance to be done; no serious upgrades or repairs required. Whilst Mr Rapa did not recall this part of the conversation specifically, he said he did recall speaking to Mr Vorster “about the farm itself in general and [that] it was in a good state of repair”, and agreed he had said there was nothing to do on the farm, other than general maintenance.
[63]	After that Mr Vorster says he asked Mr Rapa “whether it’s possible to get a letter of intent or … some sort of comfort letter from Baiada to satisfy our funders….”.  Mr Vorster says that Mr Rapa said “he was aware of that requirement… and it shouldn’t be a problem to give us that … letter of intent or comfort letter”. Mr Rapa denies saying anything about being aware of a funder’s requirement for a letter of intent, and I accept his evidence in that regard, but does recall saying that he did not see that there would be any problem providing a letter of intent, observing that was something “we would offer” “in normal circumstances”.  I do not regard the difference between their evidence in this respect as of any consequence.
[64]	Mr Vorster went on to say that he then asked Mr Rapa “whether they would be prepared to give us a new five year contract”.  He says “Mr Rapa indicated that the preference would be for an assignment of the existing contract” because “they would prefer to have all the farmers on the same contractual terms and for the contracts to end at the same time”.  Mr Rapa says there was no discussion about a new five-year contract.  He says the “only discussion was around an assignment of a contract.  Not a new contract”.  He also categorically denied saying anything like that Bartter’s (or Baiada’s) preference was to assign the existing contract because it was trying to get all the farmers onto the same contractual terms. I accept Mr Rapa’s evidence in that last regard.  I am more equivocal about whether Mr Vorster may have said something about an assignment or a new contract.  It seems more likely than not that he would have, given the other evidence referred to (at paragraphs [33], [34], [36] and [39] above) and so I accept Mr Vorster’s evidence in this respect.
[65]	Mr Vorster says that Mr Rapa “mentioned that he didn’t think … an assignment of the existing contract would be a problem from our funder’s perspective because … there was an initial term but there was also a renewal term, which generally, in his experience, occurs automatically… provided the performance of the farm is up to date, both for the initial period and the extended period”.  
[66]	Mr Rapa gave a clear and convincing denial of this – saying, when asked if by his denial he meant he did not remember discussing it, or was saying he had a positive memory that it wasn’t discussed: “I have a positive memory it wasn’t discussed as I didn’t actually have the contract at the time.  So I couldn’t discuss the terms of the contract without the contract”; “I didn’t know there was a renewal term on there”.  I accept his evidence about this.  Elsewhere in his evidence Mr Rapa said that this was one of the first assignments he had been involved in, as he only became involved in relation to assignments of grower contracts at the beginning of 2016. He does recall saying that performance would need to be satisfactory for the ongoing term of the agreement.  In contrast, Mr Vorster did have a copy of the contract prior to speaking with Mr Rapa.  So he would have known, from the contract, that it provided for a five year term, with an “automatic” extension for a further five year term.   
[67]	Mr Vorster also said that Mr Rapa said that “in his experience, they were – farmers on those – some of those projects for a very long time.  He mentioned 20 years in South East Queensland.  So from his perspective, he didn’t foresee that [ongoing renewal] to be a problem”.  Mr Rapa was not asked about that in cross-examination.  I infer, from his answers to the matters that were put to him, that he would have denied it.
[68]	Lastly, Mr Vorster says that Mr Rapa also mentioned that Baiada is a family-run operation that looks after their growers and provides support to the growers. Mr Rapa accepted that he said this.
[69]	On balance, I find that Mr Rapa did not say the things alleged regarding automatic renewal, or anything about Mr Vorster’s funder or their requirements.  The plaintiff has not proved, on the balance of probabilities, that Mr Rapa said the things alleged in paragraph 20(g), (h), (i) and (j) of the statement of claim (set out in paragraph [17] above).
[70]	There is in any event a disconnect between Mr Vorster’s evidence, just addressed, of the things he contends Mr Rapa said (regarding renewal) and what Mr Vorster then says, in his affidavit, he understood from that conversation:  that the grower contract would be assigned; and would run for the remainder of its initial term; and that the option to renew the contract would be exercised.  Even if I had accepted Mr Vorster’s evidence of  the conversation in full, I would not accept this aspect of Mr Vorster’s evidence, as it conveys an adamance and a certainty that bears no relation to the content and context of the conversation with Mr Rapa, including the fact that he made it clear he was not the decision-maker in so far as consent to any assignment was concerned.  At best, I find, Mr Vorster could have left the conversation with Mr Rapa with a sense that it was likely a letter of intent would be provided, and there would be no impediment to the grower contract being assigned to him (and Mr Feitelson; or a purchasing entity nominated by them); but that remained to be confirmed and formalised. 
[71]	It is not disputed that at no time during the conversation did Mr Rapa indicate to Mr Vorster that there was any prospect of the processing plant at Ipswich not continuing to operate.  Nor did Mr Vorster ask any questions directed to that.  As discussed further below, it is quite clear that Mr Rapa had no knowledge, as at 20 August 2016, of any prospect of the plant closing.
[72]	I therefore find that the conduct, said to contravene s 18 ACL, is a failure to disclose the matters alleged in paragraph 17.   The evidence does not establish that Mr Rapa made the statements pleaded in paragraphs 22(h), (i) and (j), and therefore the “conduct” to be considered does not include the implied representation, and representation as to a future matter, pleaded in paragraph 45A of the statement of claim.  
[73]	However, as discussed further below, under the heading “reliance”, even if I had formed a different view about what was said by Mr Rapa in this conversation, that would not alter my ultimate conclusion.  That is because I find that what Mr Vorster really wanted from the conversation with Mr Rapa – and perhaps relied on – was an assurance that the defendant would agree to assign the broiler contract from Repstar to Mr Vorster and Mr Feitelson (or their purchasing entity, as occurred).  They needed to have a broiler chicken contract in place to satisfy their bank’s requirements. The objective evidence – importantly, the execution of an unconditional contract to purchase the farm on 14 September 2016 – supports the conclusion that Mr Vorster and Mr Feitelson (and by extension the plaintiff) did not rely on anything more from the conversation with Mr Rapa than an expectation of that assignment.
[74]	In his oral evidence, Mr Vorster was vague when asked when he first saw the existing broiler contract, at first suggesting he had not seen it until after the option was signed.  Only when he was shown the email from Mr Reppel to him and Mr Feitelson of 4 August 2016, which includes a copy of the contract, did Mr Vorster agree he must have seen the contract at that time.  That evidence gives the impression Mr Vorster did not pay much attention to the contract at that time; or, alternatively, that he was trying to place more emphasis on the information he contends was conveyed by Mr Rapa in the telephone conversation on 20 August 2016. In any event, Mr Vorster says he spent “not long” reading it, and that the most important thing for him was their responsibilities (ie as growers), the number of batches and the price they would be paid.  Although he agreed, when pressed, that the term of the contract and the circumstances in which it could come to an end would also be significant matters.  I would add that, having regard to Mr Vorster’s evidence about the conversation, the most important thing to him was to find out if the defendant would be willing to consent to an assignment of that contract.
[75]	Mr Vorster ultimately agreed that clause 25 of the broiler contract was one of the clauses that he considered in his assessment of the contract, and that he understood from reading that clause that during the term of the broiler contract, there was a possibility that termination could occur if the plant closed.  His response to that proposition was “highly unlikely, but yes”.  As to why he assumed that eventuality was “highly unlikely”, Mr Vorster said:
“Well, there were 21 farmers in South East Queensland with over 100 sheds, comprising probably two million – two million chickens at any time.  For someone just to close a processing plant that weekly slaughtered 500,000 chickens, it’s not just something that happens overnight.” 
[76]	Nevertheless, he agreed he was aware that processing plants closed from time to time, including for example because he was aware of an Inghams’ plant that had closed around the time he and Mr Feitelson entered into the contract for the Elimbah farm.   Both he and Mr Feitelson were also aware that Baiada had only one processing plant in south-east Queensland at this time – the Ipswich plant.
[77]	Mr Vorster also agreed that his assessment, at or just before he spoke to Mr Rapa, that closure of the (Ipswich) plant was “highly unlikely” was a “self-assessment” he had made and not one based on anything Mr Rapa said to him.  Mr Vorster says he “took some comfort” from his conversation with Mr Rapa, that it was highly unlikely the contract would be terminated, at least during its initial term.  However, he agreed Mr Rapa had said absolutely nothing about plant closure in that conversation, that the issue was not raised at all, and that Mr Vorster had the opportunity to raise the issue with Mr Rapa, but did not.  Mr Vorster also agreed that the reason he did not raise any issue with Mr Rapa about the possibility of the plant closing was because he had already formed his own opinion that it was unlikely to occur.
[78]	Mr Feitelson, likewise, agreed that, prior to Mr Vorster’s conversation with Mr Rapa, he understood, based on his assessment of the broiler contract, that if the plant closed, the contract would come to an end, and that “it was a risk”.  He went further to say that “it’s something that was considered”, at the point that he “made a call to continue to exercise the option” – that is, that “in the past these contracts kept running, and Jacques [Vorster] had told me that, in conversation with Mr Rapa – that it would continue”.  Mr Feitelson also accepted that no inquiry was made with anyone from Baiada or the defendant about the possibility of closure of the plant.
In trade or commerce
[79]	It was not contested by the defendant that the conduct alleged was conduct “in trade or commerce”; although that was expressly not a concession that what was involved, between the defendant (by Mr Rapa) and Mr Vorster was a “commercial dealing between individuals” (Miller at [20]).  As discussed further below, the fact that the defendant and the plaintiff (or, earlier, Mr Vorster and Mr Feitelson) were not parties engaged in a commercial negotiation was emphasised by the defendant in relation to the question whether the defendant had any obligation to disclose its internal considerations to Mr Vorster (or the plaintiff). 
What meaning did the conduct convey?
[80]	In order to address this third step in the approach to determining whether the defendant breached s 18 ACL, it is necessary to deal with two issues:
(a)	the factual allegations in paragraph 17 of the statement of claim; and
(b)	whether, in any event, there was any obligation on the defendant to disclose its considerations in relation the future of the Ipswich plant.
As at 20 August 2016, did the defendant know it was it probable that the Ipswich plant would close in or about 2017?
[81]	In paragraph 17 of the statement of claim, the plaintiff alleges that, by 20 August 2016 (the day of Mr Vorster’s phone conversation with Mr Rapa):
(a)	the closure of the Wulkuraka plant had been the subject of submissions to meetings of the advisory board; and
(b)	“the Baiada Group and the Defendant knew it was probable that in or about 2017 the Defendant:
(i)	would cease live processing at the Wulkuraka Plant;
(ii)	would cease processing broiler chickens grown at Donnybrook Farm;
(iii)	would cease performing the obligations under the Donnybrook Broiler Contract”.
[82]	The plaintiff further alleges, in paragraph 17A, that a number of people had “actual knowledge” of those matters, based on their receipt of various reports and participation in advisory board meetings.  Of the people referred to in paragraph 17A of the statement of claim, the court only heard evidence from Mr John Camilleri, Mr Simon Camilleri and Mr Macri.
[83]	As to the meaning of “probable” in this context, the plaintiff submits the court should adopt the ordinary meaning, informed by the Macquarie Dictionary, of something which is “likely to occur or prove true”, “having more evidence for than against, or evidence which inclines the mind to belief but leaves some room for doubt”; and “affording ground for belief”.
[84]	The Baiada Group of companies, which includes the defendant, is a family business, managed and controlled by brothers, John and Simon Camilleri.  Mr John Camilleri is the Chairman of the Baiada Group.  Mr Simon Camilleri is the Chief Executive Officer of the Group, and the managing director of the defendant.
[85]	In terms of how decisions are made within the Baiada Group, Mr John Camilleri says that:
“Any major decision (which would include major capital expenditure, closure of any premises, corporate matters) are all referred to the Managing Director (Simon Camilleri) and myself and, in virtually all cases, are referred to Baiada Group’s advisory board … for consideration and comment.  Specifically, in relation to any closure of any major premises or sites, these are all, without exception, referred to myself.”
[86]	Mr John Camilleri describes decision-making as a “difficult process that involves conceiving an idea, then deconstructing it, re-thinking it, looking at other options, revisiting it, backflipping back and forth amongst myself and Simon, our management team and the Advisory Board (who I call ‘we’).  We will change our mind even at the 11th hour before a decision that has already been made is to be actioned”.  This is because, he says, the poultry business is “dynamic” and affected by a number of different factors.  However, he says that “[d]ue to being a family operation, we have the ability to make decisions very quickly” and “[f]or major decisions … we often agonise over them, but ultimately if Simon and I agree on something then we can make a decision quickly”.  
[87]	Mr Simon Camilleri, likewise, says “[a]n important decision for Baiada Group is not made unless John and I agree on it”.
[88]	In relation to decision-making on plant closures generally, Mr Simon Camilleri says that, given the highly competitive nature of the poultry production industry, in order to remain profitable “we are constantly reviewing every aspect of our production to be as efficient as possible”, including “regular review of where we grow and process chickens”.  He also says that:
“John and I regularly review, consider and discuss costs of production and that includes discussion about Baiada Group’s processing plants.  We regularly have discussions without reaching any conclusions, or even forming tentative views, as to what will occur or what action we will take.
 In relation to consideration of plant closures, specifically, there have been some plants which John and I have discussed over the course of several years in relation to potential future closure, without making any decision to close those plants and without knowing if closure is likely to occur.  At some point, we have likely discussed the future of every plant that we operate.  It is a reality of the competitive nature of the industry and the need to be highly efficient, that there is always a risk that any plant we operate may close at some future point.  That is why all of our grower contracts have a right to terminate in the event that the relevant geographically located processing plant closes.”
[89]	In relation to the Ipswich plant in particular, Mr John Camilleri says that there were a range of discussions, from 2014 to 2017 between him and Mr Simon Camilleri, ranging from potential closure through to expansion and also potentially constructing a new plant near Ipswich.  He says that any decision to close a regional processing plant involves a lot of “toing and froing”, and is never made lightly because it costs the company a lot of money.
[90]	Mr John Camilleri says, however,  that no decision on closure of the processing plant at Ipswich was made until July 2017.  Prior to that time, whilst there were discussions about whether to “expand, close, rationalise or maintain the status quo”, of the Ipswich and other plants, no decision as to closure had been made:
“… as we would, in all cases, keep our options option until we were finally committed to closure.  Until the decision was made, it was a matter of ongoing discussion, dialogue and reconsideration between Simon and myself.”
[91]	Mr John Camilleri also says that:
“Until a decision is made to close a plant, nothing is conveyed by Simon or me to management as there is nothing to disclose and nothing to implement.  In the case of the Ipswich plant, as soon as the decision to close that plant for processing was made, Baiada communicated that decision to the growers and gave them as much notice as we could.  Before any decision was made, there was nothing to tell the growers.”
[92]	In his oral evidence, Mr John Camilleri did not accept that closure of the Ipswich plant was “likely” by mid-2016.  He otherwise did not have a particular recollection of what was discussed at particular board meetings, and was not prepared to guess; so the cross-examination of him was brief.
[93]	Mr Simon Camilleri likewise says no decision was made to close the Ipswich plant until July 2017.  He was extensively cross-examined and I refer further to his evidence below.
[94]	The first time that Mr Rapa was told that there was a plan to close Ipswich for all processing was 24 July 2017. 
[95]	The court also heard evidence from Mr Macri, who is a member of the advisory board of the Baiada group of companies.  Mr Macri describes the role of the advisory board as to “consider financial results and various other metrics within the Baiada business and to provide a confidential ‘sounding board’ for John Camilleri (Chairman of the Baiada Group) and Simon Camilleri (Managing Director of Bartter), who are the key decision makers within the Baiada Group”.  The advisory board does not, however, make decisions.  That was consistent with Mr Simon Camilleri’s description of the advisory board as a “discussion process” rather than a “decision-making process”.  
[96]	Mr Macri says that, from his time on the advisory board, since November 2012, he is aware that “the Baiada Group’s strategy in its poultry business is to grow its market share and be the lowest cost producer that it can”, describing this as a long-term strategy.  
[97]	In relation to the  closure of the Ipswich plant, Mr Macri says:
“In terms of closing the Ipswich processing plant, I recall that there were discussions involving the future of that plant.  I do not recall any of those discussions occurring prior to 2017, the year in which the closure decision was made.
 I recall that attention turned to what to do with Ipswich after the closure of the Laverton processing plant in Victoria, which occurred in late 2016.  Following Laverton’s closure, from early 2017, I recall that the future of Ipswich became a regular consideration at the Advisory Board.  The discussion included consideration of the financial benefits, but also the social impacts of the closure, and the long-term consequences of the loss of that growing capacity.
 My recollection is that John and Simon [Camilleri] had some resistance to closing the Ipswich plant, and that there were discussions of moving smaller birds away from it, making it more efficient and trying to keep it open, but that there came a point where keeping it open became inconsistent with the strategy of being the lowest cost producer.
 I do not recall the specifics of any discussion at the Advisory Board at which the decision to close the Ipswich [plant] was made.”
[98]	Despite what each of the Camilleri brothers and Mr Macri say, the plaintiff urges the court to find that, objectively, when one has regard to the CEO reports prepared by Mr Simon Camilleri and what is recorded in minutes of advisory board meetings, as well as some other matters, as at August 2016 it was probable that the Ipswich plant would close sometime in 2017.  
[99]	There are two points to be made about this.  The first is that that is not what is pleaded in paragraph 17 (and 22A, as to the initial non-disclosure, and 31A, as to the further non-disclosure) of the statement of claim.  What is pleaded is that the defendant knew of the matters pleaded in paragraph 17 (that closure of the Wulkuraka plant had been the subject of submissions to meetings of the advisory board and that it was probable that in or about 2017 the plant would, effectively, close).  The plaintiff has set out to prove knowledge, not an allegedly objective fact not known.
[100]	The second is that it seems to me that this misstates the principles somewhat.  To the extent an objective enquiry is called for, that is in relation to the characterisation of the meaning of the conduct and determining whether, in light of that meaning, the conduct was misleading or deceptive.  Where the alleged conduct is silence or non-disclosure, if, in the circumstances assessed objectively, a representee would have been entitled to expect or infer (have a reasonable expectation) that an undisclosed matter would be disclosed, that may well constitute misleading or deceptive conduct.  That is a different question.  
[101]	In any event, I turn to consider the evidence of what was put before and discussed by the advisory board in more detail.
[102]	It begins with a CEO report prepared by Mr Simon Camilleri on 24 July 2015 and provided to the members of the advisory board.  Under the heading “major capital projects 2016/2017”, at section 2.3, the report stated:
“Our Major Capital Projects for the following two years are predominantly aligned with our Strategy of having less sites and only investing in long term sites/regions or sectors for the company that can facilitate scale for the future.  The investments below are to create the scale to enable us to close facilities such as the Laverton Plant & potentially the SEQ operations.”
Below that, there was a table setting out “key projects”, timed for March and November 2016, and April  2017, to increase capacity at three sites, none of which was the Ipswich plant.
[103]	Mr Camilleri denied that this should be taken as reflecting his view, as at July 2015, that the south-east Queensland operations (the Ipswich plant) should be closed.  He described this as “my thought process that I bring to the advisory board or my brother to discuss how we make the business better.”  Mr Camilleri said closure of the Ipswich plant was “only a consideration back in 2015, as were two or three other plants”; he said “It was a thought. It wasn’t a possibility at that stage.”
[104]	In his affidavit, Mr Camilleri described these thoughts as “thought bubbles” that he had from time to time, which he brought to the table for discussion as part of his constant re-evaluation of Baiada Group’s business.  He said “I do the same thing with a lot of different matters, many of which are never actioned or progressed.  The business of Baiada Group is dynamic and requires a constant process of discussion and improvement…”.  Counsel for the plaintiff was critical of Mr Camilleri’s evidence in this regard, describing it as entirely lacking in credibility, given the nature of the company and the advisory board, for someone to include “thought bubbles” in a CEO report.  Counsel for the defendant submitted it is a matter of semantics – another person might have said “brainstorming” – but regardless of the word used, the idea being conveyed is that Mr Camilleri was kicking around a concept without a definite idea as to where it would land.  His evidence in that respect is supported by what his brother, Mr John Camilleri, also said.
[105]	An advisory board meeting took place on 6 August 2015.  The minutes record that there was discussion, following the tabling of the CEO’s report, about a range of matters including “site closures”, in respect of which the minutes record:
“Site closures:  Simon advised that the closure of Laverton was scheduled for March 2016, and potentially the SEQ plant in 2017.  The expected synergies are about $30m pa in savings.  Increased capacity in Hanwood from October 2016 will allow us to do it.  We will retain the broiler grow-out in Victoria and custom process locally.  The small rendering plant in the Hunter (Valley feeds Pty Ltd) may be the next to close, as we now have a new facility in Tamworth with ample capacity.  These closures will generate better scale on our sites.  John noted that our major customers are moving to one depot; they are not prescriptive as to where it’s produced.  Simon noted SEQ is our highest cost plant and that we shut four hatcheries when we built a new one (and it's automated).  Laurie sees this as reinforcing our strategy of being the lowest cost producer; someone will have to leave the market (their banks will force them).  Simon agreed; and believed that the metropolitan producers will face the greatest difficulties due to limitations on expansion and high cost structures of operating in the cities.”
[106]	Mr Camilleri maintained that no decision had been made to close Laverton [a plant in Victoria] at this time; that it was only a proposal.  That is at odds with the language which appears in the first line of the extract from the minutes above – that “the closure of Laverton was scheduled for March 2016”.  However, the language used in relation to the SEQ plant (ie Ipswich) is far more general – referring only to a “potential” closure.   Counsel for the plaintiff emphasised  the reference to “$30m pa in savings” and “these closures” as referring to both Laverton and SEQ.  Mr Camilleri did not accept that – saying the $30m would be a reference to Laverton alone.  As to where the analysis of the “$30m” could be found, he said he probably would have worked that out “on the back of an envelope”.  
[107]	The plaintiff submits this should also be rejected as “incredulous”.  I am not persuaded it necessarily is, given the description given by both John and Simon Camilleri about the nature of this tightly controlled (by them) family business.  However, other evidence suggests this was most likely a reference to potential savings from the closure of both plants.  For example, the CEO report of 31 January 2017 estimates that the closure of the Laverton plant should realise annual savings of approximately $10 million; and the CEO report of 24 August 2017 suggests the closure of Ipswich could realise annual savings of about $14 million.  Accordingly, I do not accept Mr Camilleri’s evidence in this respect.   But that does not alter the generality of the reference to Ipswich. Mr Camilleri denied that, at this time, it was “on the cards”, or likely, that the Ipswich plant would be closed in 2017.  
[108]	On 10 November 2015, Mr Simon Camilleri prepared and provided another CEO report to the advisory board.  Once again, the plaintiff referred to the heading “major capital projects” and noted that there was no reference to the south-east Queensland processing plant.  This was relied upon, by inference, to support the plaintiff’s contention that the closure of Ipswich was probable – otherwise it would be the subject of a major capital project.  Mr Camilleri explained that this was a reference to major capital projects, meaning those involving “substantial investment where we could get scale”, rejecting the contended inference.  This report includes the observation that “[t]he investments below [in the table of key projects] are to create the scale to enable us to close facilities such as the Laverton plant”.  When asked about the plural “facilities”, Mr Camilleri said that other plants were being considered, at this time, including Newcastle, far north Queensland and south-east Queensland.
[109]	The next advisory board meeting took place on 19 November 2015.  The agenda for this meeting identified “strategy re: Laverton site” as one of the key matters for discussion.  The minutes of this meeting record Mr Simon Camilleri saying that “broiler shed capacity is what’s limiting our growth”.  As to that, Mr Camilleri agreed that at about this time (November 2015) the defendant, or Baiada, had entered into an agreement with an entity I will call ProTen for the construction of about 80 new sheds on a farm complex called Narrandera.  There was also an agreement to construct sheds on another farm called Jeanella South, although Mr Camilleri thought they were built earlier.  I will come back to this issue shortly.
[110]	In relation to the closure of Laverton, the minutes of this meeting record that:
“Our strategy now is to retain the plant as a contingency, for Hanwood and Adelaide; else the whole business is at risk.  This is a complete about face by us, but the funding/gearing forecasts are not indicating it needs to be sold.”
[111]	Mr Camilleri agreed that it was probable, by this time (November 2015), that the Laverton processing plant would be closed, although reiterated that no decision was actually made until October 2016.  What the minutes refer to is a strategy to retain the plant (that is, not to sell it) as a contingency, in case there was a problem processing chickens at the Hanwood or Adelaide facilities.
[112]	There is no mention of the south-east Queensland plant (ie Ipswich) in these minutes, from which it may be inferred there was no discussion about closure of this plant at the November 2015 meeting.
[113]	A CEO report was next prepared and provided on 11 February 2016, for an advisory board meeting on the same day.  There was no mention of the south-east Queensland plant at this meeting.
[114]	The next CEO report prepared and provided by Mr Simon Camilleri is dated 17 May 2016.  The meeting of the advisory board took place on the same date.  The minutes record some discussion about the potential closure of Laverton, by reference to the “board pack”, including the notice required to be given to growers in the event of closure.  The minutes record a number of options, before stating no decision should be made until a new tender is finalised (expected at the end of July 2016), with the observation that “it’s a big decision which requires further discussion internally”.  This seems to be consistent with Mr Camilleri’s consistent evidence that no decision was finally made, in relation to Laverton, until after this. 
[115]	An extract of the “board pack” provided in advance of this meeting is in evidence.  Under heading 5.1 “Laverton Business strategy” it is said that “[w]e are proposing a date of March 2017 for the closure of the Laverton plant”.  On the following page a number of “considerations in closure of Laverton Plant” are listed. 
[116]	There is no mention of the south-east Queensland plant in the minutes of this meeting on 17 May 2016, from which I infer there was no discussion about closure of this plant at this meeting either.
[117]	The next CEO report prepared and provided by Mr Simon Camilleri is dated 28 September 2016.  Mr Camilleri agreed that it is likely the decision to close the Laverton plant had been made by this time, because growers were notified three weeks later.  The CEO report notes a date of “March 17” for the closure of the Laverton plant.  It also identifies, in a table, where the “birds” previously processed at would be re-distributed.  According to this table, the planned production for the “SEQ” (ie Ipswich) plant as at 1 April 2017 (when Laverton was to close) would increase by 80,000 birds to 570,000 birds per week.  There is no other mention of south-east Queensland in this CEO report; and no mention of it in the minutes of the advisory board meeting which took place on 28 September 2016.  Again, I infer there was no discussion of this at this meeting.
[118]	I pause at that point in the chronology of the evidence to observe, by reference to paragraph 17(a) of the statement of claim, that the evidence supports a finding that, as at 20 August 2016, closure of the Ipswich (or SEQ) plant had been mentioned, in passing, in the CEO report of 24 July 2015 and the minutes of the advisory board meeting on 6 August 2015.  It was not mentioned in the CEO report of 10 November 2015, but Mr Camilleri accepted that it was amongst a number of different facilities that were being considered.  That finding does not establish the allegation in paragraph 17(a) that “closure of the Wulkuraka Plant had been the subject of submissions to meetings of the Advisory Board”.  Although what is meant by “submissions to” is not particularised, it seems to me to connote something more than the passing references referred to above.
[119]	In relation to paragraph 17(b) of the statement of claim, I do not accept that there is any basis to find, by reference to the evidence just addressed, that by 20 August 2016 the Baiada group and the defendant [specifically, John and Simon Camilleri, Mr Macri and the other members of the advisory group referred to in paragraph 17A] knew it was probable that in or about 2017 the Ipswich plant would, effectively, close.  The documentary evidence does not provide a basis to reject the evidence of each of John and Simon Camilleri and also Mr Macri to the contrary.
[120]	The plaintiff also relied on evidence of reports to and discussion by the advisory board after August 2016 as supporting the inference of knowledge alleged in paragraph 17(b) of the statement of claim.  I turn to that evidence next.
[121]	On 12 December 2016, Mr John Camilleri sent an email to Mr Simon Camilleri, attaching some notes as a “basis for discussion” on that day.  Item 2.6 of these notes was headed “site rationalisation” and there were three dot points below that:  
•	Laverton Closure 31 March 2017
•	SEQ
•	Other sites
[122]	Mr Simon Camilleri accepted that “site rationalisation” may include closure, but said it was not limited to closure – that rationalisation also referred to saving costs and improving efficiency at a plant.  Mr Camilleri said that, whilst he could not recall the exact communication between himself and John at this time, “to put it into context … south-east Queensland was a high-cost operation, and it was remiss of us not to do something about it, either rationalise it, simplify it, take products out or make it cost-effective. That would’ve been the theme of the discussion between John and myself…”.  I have already referred above to Mr John Camilleri’s evidence about the “toing and froing” involved in considering a plant closure.
[123]	The first time that “Ipswich plant closure proposal” appears in a CEO report is 31 January 2017.  It is identified as “for discussion only”.  At section 3.4 of the report, headed “Closure of Ipswich Plant & Wacol Feedmill (For discussion)”, the following appears:
“Consideration is being given to the closure of the Ipswich Plant & Wacol Feedmill in SEQ.  The plant currently processes 530 000 birds per week, (460k Barn chicken & 70k FR chicken).  Essentially these birds will be absorbed into the NSW plants and supplied accordingly.  The additional barn shedding (460k per week) can be provided by increasing the capacity in Griffith & Tamworth growing regions, whilst Beresfield increases its Free range capacity.  The barn chicken to be supplied into SEQ will be sourced from Tamworth and part Beresfield, the Free range chicken will be supplied from Beresfield into SEQ.  Hanwood would then supply the Sydney market previously being supplied ex Tamworth & Beresfield.
 The table below outlines our current and planned weekly production should we proceed with this proposal and close the Ipswich plant…”
[124]	The report included a list of considerations in relation to the closure of the Ipswich plant.  Mr Camilleri did not accept that it was “likely” at this point that the Ipswich plant would close. 
[125]	Also on 31 January 2017, Mr Camilleri sent an email to Ms Farrell, an employee of Baiada, and Mr Murray, the in-house counsel of Baiada.  The subject line was “Project Joshua”, and the body of the email identified that it was “confidential re SEQ”.  In the email, Mr Camilleri asked for various information in relation to grower contracts, including:
(a)	when the current term of each of the grower’s contracts expires;
(b)	“what notice we need to provide on each and every contract in case they differ not to roll into another term”;
(c)	whether “we have a termination clause which allows us to end the contract should I shut the Ipswich plant and how much notice I need to provide”.
[126]	Mr Camilleri says he used a code name, Project Joshua, because “I thought the situation was sensitive and I didn’t want to mislead people within the organisation to think one way or another”.  He also explained that he and John (Camilleri) had used project names, incorporating their children’s names, many times in the past.  Counsel for the defendant submitted that this demonstrated the confidential nature of this information, a matter to be returned to below, in the context of addressing whether the defendant had, in any event, any obligation to disclose its internal considerations in relation to the Ipswich plant to the plaintiff (or Mr Vorster and Mr Feitelson).
[127]	The next advisory board meeting was on 9 February 2017. The minutes of this meeting record that “we are giving consideration as to whether the Ipswich plant remains open” and list a number of “material impacts”, “[i]f the decision is to close it”.  Mr Simon Camilleri gave a presentation at the meeting, outlining in broad terms the way in which the Ipswich closure would be managed from a processing point of view in the event that it closed.   One of the action points arising from the meeting, in relation to “Ipswich closure”, was to “[d]etail a strategy if closure is to occur with dates and a timeline”.
[128]	The plaintiff relied upon evidence of an agreement that the defendant (or Baiada, it is not clear) had entered into, prior to December 2015, with ProTen, for the construction of sheds for growing broiler chickens on farms in New South Wales (the Narrandera farms) as evidence of the defendant having planned, well before 2017, for the closure of the Ipswich plant.  This was on the basis that it was intended, at the time of those agreements, that the processing capacity at Ipswich could be absorbed by another processor in New South Wales, post-closure.
[129]	When this was put to Mr Simon Camilleri, he gave clear evidence that the arrangements with ProTen were not associated with the closure in Ipswich; rather, those arrangements were to “accommodate our organic growth over 2010 to 2018”, which was significant, in terms of additional revenue, and required the construction of 50 additional chicken sheds per annum.  I accept his evidence in this regard.  That is not to say the matters were entirely mutually exclusive.  However, I regard the plaintiff’s mathematical analysis of bird numbers and shed capacity – which was relied upon in order to submit that the deal with ProTen demonstrated the defendant had planned the closure of the Ipswich plant as long ago as 2015 – as somewhat artificial and, as submitted by the defendant, an exercise in reverse-engineering.    
[130]	Following that meeting in February 2017, Mr Simon Camilleri sent an email to Mr Rapa on 27 March 2017 in which he said “I wish to commence with the analysis of simplifying the Ipswich Plant”.  He goes on to say “the end goal is to only pick up two size birds in the Ipswich plant 2.40 & 3.50 plus and replicate Laverton whole bird business model & cutup”, with this to be done in two stages:  (1) stop producing FR (free range) in Ipswich; and (2) stop producing small birds in Ipswich.  He asks Mr Rapa to tell him “the impacts of both stages from a staff reduction point of view and cost impact”.  In his affidavit, Mr Camilleri says that his intention “around the time of sending that email was to try to create longevity for Ipswich”.  He says he was seeking simplification of Ipswich to make it a low-cost plant so we could keep its capacity and not lose it.  
[131]	Consistent with this, it will be recalled that Mr Macri’s evidence, which I regard as reflecting an independent point of view in the circumstances, was that “John and Simon had some resistance to closing the Ipswich plant, and that there were discussions of moving smaller birds away from it, making it more efficient and trying [to] keep it open…”.
[132]	A further CEO report was prepared and provided by Mr Simon Camilleri on 2 May 2017.  One of the items addressed in this report was “Ipswich Plant Rationalisation”.  Under that heading, the report states as follows:
“A strategy has been developed and in the process of being implemented to rationalise the Ipswich processing plant in order to stop duplication within the processing division.  Consideration was given to all options, including Ipswich plant closure, however the consensus from the relevant management was that rationalisation, and simplification, was the preferred option at this point in time. In simple terms the rationale is that all small birds produced at the plant will no longer be processed at Ipswich, these small birds will be processed at Beresfield on our automated systems and the processed stock transported to Ipswich for distribution …”
[133]	The minutes of the following advisory board meeting, on 18 May 2017, record, in relation to the Ipswich plant, that “we will be simplifying this plant, to produce large birds only, from 17-6-17.  The remainder will be produced at Beresfield and trucked to Brisbane.  This simplification, without closing the plant, will generate savings of circa $130k per week.  We will continue to review our poultry processing strategy.”
[134]	In support of his evidence that the decision to close the Ipswich plant was not made until mid-2017, Mr Simon Camilleri also referred to:
(a)	the increase in productivity at the Ipswich plant each year from 2013 to 2017;
(b)	the expanded growing capacity in 2015 and 2016, by adding contracted farms;
(c)	the making of development applications in 2016:
(i)	to increase production at the Wacol feed mill (an application which was made in March 2016 and approved in November 2016); and
(ii)	to increase the Ipswich plant capacity (from 1,021,764 kg per week to 1,802,000 kg per week) and to upgrade the carpark (an application made in June 2016 and approved in November 2016); and
(d)	the amount of capital expenditure approved for the Ipswich plant in 2016 which included:
(i)	just over $1.45 million in March 2016 for a waste water treatment plant; and
(ii)	just over $927,000, in December 2016, for a “Stork” grading and distribution line.
[135]	In relation to the upgrade to the wastewater treatment plant, the evidence was that this was necessary to continue operating, in order to satisfy the requisite approval from Urban Utilities.  The expenditure may have been approved in March 2015, rather than in March 2016 when Mr Camilleri says, but it is not clear when it was incurred – that may have been in 2016.  In the circumstances, I regard this as a neutral factor in terms of the issues I am required to determine.
[136]	In relation to the grading and distribution line, Mr Simon Camilleri said:
“The Stork system is an automated ‘line’ that is used for weighing and grading poultry as part of the processing.  Such lines are capable of working for several decades.  The existing Stork system at Ipswich did not need repair or replacement in December 2016.  I approved that capital expenditure on the Stork grading and distribution line as a capital improvement to increase efficiency in bird processing at Ipswich.  The new lines were faster and would improve efficiency in bird processing at Ipswich.  The new lines were faster and would improve efficiency of production.  I had no intention when approving this capital outlay of ceasing processing at Ipswich.  I do not approve capital expenditure for assets that I plan to make redundant.  There was no decision to close the Ipswich plant at this time.  No decision was made to close Ipswich until July 2017.”
[137]	Other evidence indicates that Mr Rapa raised the matter of a “weighline upgrade” with Mr Camilleri in February 2016.  Mr Rapa said in his evidence that approval for the expenditure was given in April 2016. The weighline was designed to make efficiencies within the plant, and the costs associated with it were expected to be recovered within about 12 months of operation. It was commissioned by October 2016.  
[138]	It was put to Mr Camilleri that what appears in his affidavit – set out above – is incorrect when regard is had to this other evidence.  However, Mr Camilleri maintained that it was not, because from his perspective, he spent the money to gain efficiency.  He said “[t]he equipment was ordered earlier that year to gain efficiency.  If I knew I was going to close a plant 12 months later, I didn’t need to replace the equipment.  The existing equipment would have went on”. Mr Camilleri’s evidence is also supported by the evidence that the weighline is not a piece of equipment capable of being relocated to another site.   
[139]	On balance, I accept Mr Camilleri’s evidence in this regard.  It is consistent with the other evidence of trying different strategies to make the plant more efficient (as Mr Macri puts it), rather than close it.   
[140]	As to the development approval, there is evidence that the primary reason for this application being made, at the time that it was, was to address the fact that at times the Ipswich plant had been operating beyond the approval that it had been granted, as opposed to being made on the basis of a conscious decision to increase the capacity of the plant. On the other hand, the planning report prepared to accompany the development application refers to an increase from 1,021,764 kg per week to 1,802,000 kg per week processing capacity (p 2) and describes the proposed development as representing “a significant investment for Baiada creating an additional 40 full time employment positions” (p 5), which does tend to suggest expansion, rather than simply correcting a non-compliance.  There was no other evidence about this aspect of the proposal, however – for example, as to whether additional staff were employed. In the result, I also regard this factor as neutral, in terms of the issues I am required to determine.
[141]	As already noted, the evidence of John and Simon Camilleri is that their decision to close the plant was ultimately made in July 2017.  Mr Rapa, the general manager in Queensland, was not told of any decision to cease processing chickens at the Ipswich plant until July 2017. The next advisory board meeting was on 24 August 2017.  In relation to Ipswich closure, the minutes record, by reference to the CEO report, that “the feasibility suggests closure is compelling.  All agreed.”
[142]	Four days later, on 28 August 2017, Mr Simon Camilleri wrote to the Mr Feitelson and Mr Vorster, advising that the defendant would be closing its Ipswich processing plant from January 2018.  The letter records that “we have long tried to avoid this decision”, but that, unfortunately, “market conditions mean that we can no longer viably operate the Ipswich facility in the medium to long term”.  On the same date, the defendant formally gave notice of termination, under clause 25.4 of the broiler chicken contract.  The defendant collected the last batch of broiler chickens from the farm in early November 2017.
[143]	This further consideration of the evidence, of what happened from December 2016 onwards, does not alter the conclusion that I reached at the earlier point in the chronology.  The plaintiff has not established – by inference backwards or otherwise – the matter alleged in paragraph 17(b) of the statement of claim, that by 20 August 2016 the defendant knew that it was probable that in or about 2017 the defendant would, in essence, close the Ipswich plant.  The evidence establishes that closure of the Ipswich plant was considered at that time, and could therefore have been described as a possibility; but I do not find that it was probable, within the meaning of that term as contended by the plaintiff, nor that the defendant knew it was probable.
Was there any obligation on the defendant to disclose its considerations in relation to the future of the Ipswich plant?
[144]	In any event, the defendant submits that, in the context of the surrounding facts and circumstances as they were in August 2016, the defendant was under no obligation to disclose to Mr Vorster or Mr Feitelson (or, once it was incorporated, the plaintiff) what it describes as “highly confidential information concerning Baiada’s corporate planning”.
[145]	As to the circumstances and context, the defendant emphasises the following:
(a)	The defendant was not involved in any contractual negotiations with Mr Vorster and Mr Feitelson (let alone the plaintiff).  The parties to the contract upon which the plaintiff relies to allege it has suffered loss are Repstar and the plaintiff.  The defendant had no involvement in that contract, including its negotiation, the due diligence undertaken, or anything else.  The defendant’s only role was whether it would agree, with Repstar, to an assignment of Repstar’s existing broiler contract to the incoming purchaser of the farm – an entity associated with Mr Vorster and Mr Feitelson.
(b)	The conversation between Mr Vorster and Mr Rapa was a brief one, in which Mr Vorster’s primary purpose was to find out whether there would be any impediment to an assignment of Repstar’s broiler contract.  Mr Vorster was on notice, from this conversation, that Mr Rapa was not the decision-maker – although he said he did not consider there would be any impediment to an assignment, it was made clear that was not his decision to make.  At best, this was a discussion between a potential assignee of a broiler contract (as part of the sale of a parcel of land and business – the Donnybrook farm) and the potential assignor of the broiler contract.  In addition, the only contractual relationship Mr Vorster and Mr Feitelson had, at the time of this conversation, was with the defendant’s largest competitor, Inghams.
(c)	“Mr Vorster and the defendant were, legally and otherwise, strangers and were not negotiating anything.  Mr Vorster was taking a preliminary (and indeed the only) step in assessing the likelihood of an assignment of a contract to which he was not a party”.
(d)	In the context of the contractual relationships the defendant did have – with its growers, such as Repstar, who were providing it with broiler chickens for processing – the defendant was contractually obliged to give three months’ notice of an impending closure of the Wulkuraka plant.  It had no obligation to notify its growers if it was “merely contemplating” a plant closure, or even if it had decided to close the plant – its obligation was to give three months’ notice before actually closing the plant.  As the defendant submitted:
“Whether a plant closure was remote, vaguely contemplated, seriously contemplated, or highly probable, did not enliven an obligation in Bartter to notify growers.  And there is an obvious, sound, commercial reason for this – if it announced a potential or even probable closure, it could expect that its growers could immediately seek to ‘jump ship’ to another processor, and, as well, the value of the grower’s business could be significantly impaired (because the broiler contract would become effectively unassignable).  There would also be loss of employees and other suppliers, and an irreparable damage to staff morale caused by rumours of a possible plant closure.  Unless a plant closure was a certainty (because the decision to close had been made), the economic interests of both Bartter and its growers would be adversely affected.”
(e)	The evidence demonstrates that the consideration of whether to close the Ipswich plant was regarded as a sensitive matter, quarantined to only the Camilleri brothers and their advisory board.  Mr Rapa, a high level manager, had no knowledge of those confidential board discussions or deliberations, and was only told in July 2017 of the decision to close the Ipswich plant.
(f)	Mr Vorster and Mr Feitelson were not misled by anything Mr Rapa said, or did not say, in so far as possible termination of the broiler contract is concerned.  They formed their own commercial judgment about the risk of the defendant exercising its contractual right to terminate the broiler contract, under a provision they were well aware of and which was standard within the industry.
[146]	In short, the defendant submits that in circumstances where the defendant was not under any obligation to disclose its confidential, internal, considerations in relation to the future of the Ipswich plant to those with whom it did have a contractual relationship; and where disclosure of that information could have caused commercial harm both to the defendant and to those with whom it had existing contractual arrangements, there is no basis to find that it had an obligation to disclose such information to Mr Vorster, a stranger to it, having regard to the context of his interaction with Mr Rapa.  
[147]	In this regard, the defendant emphasises the statements of principle from the cases, for example those referred to in paragraphs [8], [9] and [10] above, about the limitations of the obligation of disclosure as between parties to commercial negotiations.  But the defendant also emphasises that the defendant and Mr Vorster (the relevant parties, for the purposes of the 20 August 2016 conversation) were not even parties to a commercial negotiation, with the result that the argument for an obligation to disclose is even more remote.
[148]	In all the circumstances of this case, I am persuaded that the defendant was not obliged to volunteer to Mr Vorster on 20 August 2016, or to the plaintiff on 3 November 2016 (when the deed of assignment took effect) information about its internal considerations regarding the future of the Ipswich plant.   All that the defendant was asked to do, and did, was agree to the assignment of an existing broiler chicken contract, from Repstar to the plaintiff, with all the same terms and conditions the contract already contained – including a termination provision which contemplated the possibility of closure.   I find that, in all the circumstances, it was not reasonable to expect that the defendant, which had not even shared this information with its manager in Queensland, Mr Rapa, would disclose to a potential assignee of such a contract (as at August 2016) nor an actual assignee (as at November 2016) what I accept was its high-level, confidential, considerations of something that might occur in the future.
[149]	It follows that I find the plaintiff has not established that the defendant engaged in conduct that was misleading or deceptive, or likely to mislead or deceive.  The relevant conduct relied upon, which has been established, is a failure to disclose certain information – that the defendant was considering, among other options, the closure of the Ipswich plant – however, that did not constitute misleading or deceptive conduct because the circumstances were not such as to give rise to a reasonable expectation that such information would be disclosed.
No reliance
[150]	In any event, I am not persuaded the plaintiff established a causal link between the conduct of the defendant, by Mr Rapa and the loss that it claims it has suffered as a consequence of entering into the contract to purchase the Donnybrook farm.
[151]	Once again, context is important, because “the question of reliance is to be objectively determined by examining the alleged conduct in the light of the relevant surrounding facts and circumstances”.   
[152]	The subjective evidence about this, given by Mr Vorster and Mr Feitelson, is a matter to be taken into account, but is certainly not determinative.  In this regard, I observe also that Mr Vorster’s evidence in paragraph [105] of his affidavit, of what he took from his conversation with Mr Rapa, cannot be reconciled with his own evidence about the conversation, let alone the findings I have made about the conversation (nor, indeed, with Mr Vorster’s and Mr Feitelson’s evidence about the “self-assessment” they respectively made at that time, having regard to the terms of the contract).   
[153]	The particularly relevant circumstances are:
(a)	By 20 August 2016, Mr Vorster and Mr Feitelson had already agreed upon the price to purchase the Donnybrook farm – there was no room to negotiate the price, Mr Reppel made that clear.  They were keen to acquire this farm, for a range of reasons, including that Repstar had already spent significant capital repairing the infrastructure and because broiler farming was proving to be a good – ie successful – business for them.
(b)	To secure the funding to purchase the farm, it was necessary for them to have a broiler chicken (processing) contract in place.  Their preference was to enter into such a contract with Inghams, given that they already had a contract with Inghams in connection with their Elimbah farm.  Their enquiries with Inghams indicated that would not happen then.  So it was necessary to find out from the defendant whether it would be willing to assign its existing broiler chicken contract with Repstar, or enter into a new contract.  That was the primary reason for Mr Vorster wishing to speak with a representative of the defendant.
(c)	In the conversation on 20 August 2016, Mr Rapa made it clear that he was not the decision-maker.  He did say that he did not think there would be any difficulty with providing a letter of intent, indicating the defendant’s consent to an assignment of the broiler chicken contract from Repstar to Mr Vorster (or a purchasing entity associated with him).  That is the key piece of information that, I find, Mr Vorster and Mr Feitelson needed to proceed.
(d)	Mr Vorster and Mr Feitelson made their own assumptions about the broiler chicken contract, based on their experience and “ability to read”.  They did not seek any advice about it, in the context of the due diligence process concerning the purchase of the farm, nor seek to engage any more formally with the defendant in relation to the terms of it.  Their only engagement with the defendant was the conversation with Mr Rapa, and subsequent requests, following up the provision of the letter of intent, which did not materialise until 11 October 2016.
(e)	Before they had received even the letter of intent, let alone the signed deed of assignment, Mr Vorster and Mr Feitelson caused the plaintiff to be incorporated and, on 14 September 2016, to enter into an unconditional contract to purchase the farm from Repstar.  That reflects, I find, the fact that they were committed to purchasing this farm, which they regarded as a valuable business investment, on the assumption that they would be able to secure a broiler chicken contract, to satisfy the financier’s requirements.  
Their assessment in this regard turned out to be correct.  In this regard, there was evidence before the court that the plaintiff has more recently refinanced with another bank.  The valuation report relied upon for that purpose suggests (and I put it no higher than that, as there was no evidence before the court from the valuer who prepared the report) that the value of the property, in use and with the current grower contract in place, has substantially increased above what Mr Vorster and Mr Feitelson agreed to pay for it, to $13 million.  Even with no grower contract in place, but on the assumption that a contract would be gained from a chicken producer at some time in the future, the value of the property is almost equivalent to what they purchased it for in 2016.
(f)	It may be inferred that Mr Vorster relied on the indication from Mr Rapa that he did not believe there would be any difficulty with the assignment.  Whether that was reasonable, in the context of the acquisition of a $9.7 million property, in circumstances where Mr Rapa made it clear he was not the decision-maker, is another question.  It does not matter, because the deed of assignment did eventuate.  However, if there truly was a causal nexus between what Mr Rapa said and the decision to complete the purchase of the property, one would expect Mr Vorster and/or Mr Feitelson would have taken more significant measures to confirm the defendant’s position.  Instead, they committed the plaintiff to the purchase of the property without any such confirmation.  They assumed the assignment would be forthcoming – perhaps a low commercial risk in the circumstances – and proceeded to commit to the purchase on the basis of their own assumptions.   In all the circumstances of this cases, I am not persuaded that they can be said to have done so in reliance on any conduct of Mr Rapa on behalf of the defendant, other than, as I have said, in so far as he indicated an assignment of the existing broiler contract was likely to be agreed to, which it was.
[154]	Another factor is that it is the plaintiff which claims to have suffered loss and damage in this proceeding; Mr Vorster and Mr Feitelson are not parties.  The plaintiff was not incorporated until 1 September 2016 – so, as the defendant submits, “the plaintiff cannot contend that, on 20 August 2106, it relied on anything”.  This timing factor is one that I consider was dealt with unsatisfactorily at the trial.  It is yet another reason for finding there was no reliance, at least as at 20 August 2016.  Although, as can be seen, I have not limited the analysis undertaken in this way.
Conclusion on liability
[155]	The plaintiff has not discharged the onus of proving that the defendant breached s 18 of the ACL in the manner alleged; nor, in any event, that there is any causal connection between any conduct of the defendant and the plaintiff’s entry into the contract to purchase the Donnybrook farm, such as to give rise to a liability to compensate for any loss.   
[156]	It is, accordingly, unnecessary to address the evidence or the arguments in relation to the loss claimed by the plaintiff.  However, in case of an appeal, I will briefly record some findings in that regard. 
[157]	There are a number of intersections on the pathway of reasoning from complaint to compensation that affect the outcome.  There is inevitably some artificiality to the exercise of considering what I would have found, had I reached a different view at earlier points along that pathway.  That should be borne in mind in what follows. 
Was there any loss suffered?
[158]	Almost immediately after receiving notice of the termination of the contract (in August 2017) from the defendant, Mr Vorster and Mr Feitelson took steps to try to secure a replacement contract with Inghams.  That took some time, but ultimately occurred in November 2018.  So the plaintiff was without a grower contract for about 12 months.  
[159]	As noted at the outset, the plaintiff puts its claim for loss and damage on two alternative bases:  first, that if the defendant had disclosed to it, in August 2016 or at least November 2016, that it was probable the Ipswich plant would close some time in 2017, it would not have entered into and completed the contract to purchase the property at all (the no transaction case); or, alternatively, having committed to the purchase of the property, had this information been disclosed, it would have attempted to negotiate a replacement contract with Inghams sooner (the lost opportunity case), and so have avoided the loss of profits it claims it suffered during the time it did not have a grower contract in place.
[160]	In some respects I have already addressed the question as to how alternative factual conclusions might have affected the conclusion reached:
(a)	in paragraph [73], as to what would follow if I had formed a different view about what was said by Mr Rapa in the 20 August 2016 conversation;
(b)	in paragraphs [144]-[148], that in the circumstances of this case, the defendant was not obliged to volunteer to Mr Vorster, on 20 August 2016, or the plaintiff, on 3 November 2016, information about its internal considerations regarding the future of the Ipswich plant; and
(c)	at paragraph [150], that in any event, I am not persuaded there was any reliance, other than, perhaps, in relation to the expectation of consent to the assignment.
[161]	There are two key turning points in my reasoning leading to a conclusion of no contravention, a different view about which could have affected the outcome.  The first is the conclusion in relation to whether the defendant had any obligation to disclose its internal considerations to Mr Vorster, in August 2016, or the plaintiff, in October or November 2016; the second is the conclusion in relation to reliance.  
[162]	If a different view about the obligation to disclose was taken, the next question would be what would the defendant be obliged to disclose?  That it reserved its rights under the contract to be assigned, including the termination provision?  That it was considering the future of the Ipswich plant, including potentially closure of the plant, but had not made any decision yet?  Posing these questions tends, in my view, to reinforce the conclusion that there was no obligation to disclose.
[163]	In any event, a related question is when would it have been obliged to disclose such things?  Mr Rapa did not know there was any prospect of the Ipswich plant closing when he spoke to Mr Vorster in August 2016; and the evidence is not clear as to when the matter was referred to Mr Simon Camilleri for him to consider the question of a letter of comfort (which was not provided until 11 October 2016).  By that time, the plaintiff had already committed to the contract to purchase the property.   This is not a case in which, on any view, it could be said there had been a deliberate withholding of information by Mr Rapa.  
[164]	As already discussed, I find it was clear from the conversation with Mr Rapa that he was not the decision-maker, in terms of whether the defendant would consent to an assignment of the Repstar broiler chicken contract to Mr Vorster and Mr Feitelson (or the purchasing entity to be nominated by them).  Yet Mr Vorster and Mr Feitelson did not wait for the requested letter of comfort, let alone the deed of assignment, before causing the plaintiff to commit, unconditionally, to the purchase of the property, in the middle of September 2016.  
[165]	Accordingly, even if I had reached a different conclusion about the obligation to disclose, I would not have reached any different conclusion as to reliance, prior to the plaintiff committing to the contract to purchase the Donnybrook farm in mid-September 2016.   Accordingly, I would not have accepted the plaintiff’s claim for compensation on the basis of its “no transaction” case.
[166]	There are other difficulties with the “no transaction” case, which would need to be resolved if a different conclusion had been reached on the question of reliance.  The first is a fundamental one – that the acquisition of the farm property was not, on any view, induced by any deceit on the part of the defendant.  The defendant was a stranger to the transaction by which the plaintiff purchased the property from Repstar.  Next, is the manner in which the plaintiff articulates the measure of its alleged loss – which is on the basis of the difference between what it paid for the property and what it contends was the “true value” at the time of purchase.  But, on the evidence, the court could not have found that it was possible the plaintiff could have purchased the property for less because Repstar was not prepared to negotiate on the price.  Third is the fact that on any view, despite its complaints the subject of this proceeding, the plaintiff acquired a valuable farm property (which has increased considerably in value), which is suitable for the purpose for which it was acquired, and in respect of which the plaintiff has the benefit of a grower contract with a chicken processor.   Other than its claim for loss of profits, during the period it did not have the benefit of a grower contract, it is difficult to see how it could rationally be concluded the plaintiff has suffered any loss or damage as a result of entering into this transaction.
[167]	Turning then to the alternative case: if it were concluded that, at the time of providing the letter of comfort, or executing the deed of assignment, the defendant was obliged to disclose to the plaintiff its internal considerations in relation to the future of the Ipswich plant, and that its failure to do so constituted misleading or deceptive conduct, it would be necessary to consider whether the plaintiff has established that it suffered loss in that it lost the opportunity to pursue negotiations with Inghams for a replacement broiler chicken contract at an earlier time than it was otherwise able to.  The plaintiff particularises its loss on this alternative basis by reference to its loss of net profit for the 12 months from November 2017 to November 2018, in the amount of $918,534.
[168]	The evidence, of Mr Vorster, is to the effect that, at any point in time, when approaching Inghams, there would have been about a 12 month delay – because Inghams planned their shedding commitments approximately 12 months in advance.  The plaintiff’s argument is that, if it had known, in October or November 2016, that the defendant was likely to close its plant in 2017, it could have instigated that process with Inghams earlier, and therefore obtained a contract sooner than November 2018.  It is an essential part of the plaintiff’s pleaded case in this regard that the plaintiff would have been able to do this before other affected growers (that is, the other growers who had contracts with the defendant) were notified.
[169]	There are two difficulties with this contention:
(a)	First, the evidence is that, in August 2016, Mr Vorster approached Inghams to see if they would enter into a broiler contract for the Donnybrook farm.  The answer, at that time, was no, because Inghams was in the process of listing on the ASX, and “it would be a while before any contract could be considered”.  Apart from Mr Vorster’s evidence, as to his belief that he would have been able to secure a contract with Inghams in October or November 2016, to commence about 12 months later, there is no other evidence as to when Inghams might have been prepared to offer such a contract (and whether it was, in fact, much earlier than November 2018).   
(b)	Second, and perhaps more fundamentally, there is an inherent flaw in the plaintiff’s argument – that it would have been able to pursue such negotiations without competition from the other affected growers – because if the defendant was found to be obliged to disclose its consideration of a possible closure of the Wulkuraka plant, it would have had to make the same disclosure to all the other contracted growers. In this regard, I accept as logical and persuasive the defendant’s submission that it “would never have informed the plaintiff – a stranger to any contract with [the defendant] at the time, and a contracted grower to the defendant’s largest competitor – such market-sensitive and grower-sensitive information as the likelihood of Wulkuraka being closed, without simultaneously informing all of its growers.”   
[170]	There are two steps to the determination of a claim for damages for a lost opportunity:  first, causation – the plaintiff must establish on the balance of probabilities that misleading and deceptive conduct contrary to s 18 ACL caused it to lose a commercial opportunity of some value (not being a negligible value); and then, assessment of the value of the opportunity, which involves consideration of the degree of likelihood that the plaintiff would have been successful in negotiating a replacement contract sooner. 
[171]	On the question of causation, even if I had formed a different view as to liability, I would have had difficulty finding that the plaintiff had established, on the balance of probabilities, that it had lost the opportunity it alleges – because of the matters in paragraph [169] above.  But even if causation could be established, those matters are such that I would have found that the plaintiff’s claim must be discounted substantially as it could not be concluded that the plaintiff could have secured a replacement contract with Inghams immediately, to commence in 12 months’ time. 
[172]	There are other matters that were addressed in evidence at the trial that I have not dealt with, in particular, the evidence of the valuer experts in relation to the assessment of damages on the “no transaction” case.  Given the conclusions I have reached, even in the context of this further alternative analysis, I regard it as unnecessary to deal with these matters.  The differences between the experts were, in any event, quite narrow.
Orders
[173]	The plaintiff’s claim will be dismissed.   
[174]	It seems appropriate that costs follow the event.  However, in case there are matters the court is not at present aware of which may affect the appropriate costs order, I will give the parties the opportunity to be heard in relation to costs.