FEDERAL COURT OF AUSTRALIA

TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v Myer Holdings Limited [2019] FCA 1747

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days of the date of these orders, the applicant file and serve minutes of orders and submissions (limited to 5 pages) to give effect to these reasons including a protocol for stipulating declarations on s 33C common issues, further proceedings on loss and damage and on costs.

2.    Within 14 days of the receipt of the applicant’s minutes of orders and submissions, the respondent file and serve responding minutes of orders and submissions (limited to 5 pages) on the said topics.

3.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1    The applicant, TPT Patrol Pty Ltd, has brought the present representative proceeding for itself and on behalf of all persons who acquired ordinary fully paid shares (MYR ED securities) in the respondent, Myer Holdings Limited (Myer), on or after 11 September 2014 and who were at the commencement of trading on 19 March 2015 holders of any of those MYR ED securities and who have claims for loss and damage caused by Myer’s alleged breaches of ss 674 and 1041H of the Corporations Act 2001 (Cth) (the Act) concerning non-disclosure to the ASX of price sensitive information about MYR ED securities and misleading or deceptive conduct.

2    Let me introduce my reasons with the following factual summary.

3    On 11 September 2014, in presentations and in question and answer sessions with equity analysts and financial journalists, Myer’s chief executive officer, Mr Bernie Brookes, represented that in his opinion in the financial year ending 26 July 2015 (FY15) Myer would likely have a net profit after tax (NPAT) in excess of Myer’s NPAT in the previous financial year which ended on 26 July 2014 (FY14) (the 11 September 2014 representation), with the implication being that it would be materially above although nothing turns on that implication save an aspect of the counterfactual disclosure that I will discuss later concerning 21 November 2014. Myer’s FY14 NPAT had on 11 September 2014 been announced as $98.5m. Mr Brookes’ opinion which was also in the nature of a forecast was clearly to be attributed to Myer in terms of both the statement made and the opinion held.

4    On 19 March 2015, Myer announced to the ASX that Myer then expected its FY15 NPAT to be between $75 to 80 million excluding one-off costs. In its 19 March 2015 announcement, Myer told the market that:

(a)    its sales were up only 1.5% in the FY15 first half (H1);

(b)    its operating gross profit (OGP) margin had declined year-on-year by 24 basis points to 40.54%;

(c)    its cash cost of doing business (CCODB) had increased from $536.2m in FY14 H1 to $569.6m in FY15 H1 and now represented 32.3% of sales up from 30.87% of sales in FY14 H1;

(d)    its NPAT for FY15 H1 had fallen to $62.2m, 23.1% below FY14 H1, when NPAT of $80.8m had been achieved; and

(e)    NPAT for FY15 was expected to be in a range from $75m to $80m before one-off costs, which was down from NPAT of $98.5m achieved in FY14.

5    Immediately after Myer announced this adverse information concerning its year-to-date and expected final FY15 performance, its share price declined materially; correspondingly its market capitalisation declined by $90.8m or by more than 10%.

6    At its core, the applicant’s claim is for losses caused to itself and group members by Myer, inter-alia:

(a)    making the 11 September 2014 representation to the market that its NPAT in FY15 would be higher than its FY14 NPAT, when Myer did not have reasonable grounds for making that representation; and

(b)    failing to disclose at any time after 11 September 2014 and prior to 19 March 2015 that Myer did not have reasonable grounds for making the 11 September 2014 representation or that the 11 September 2014 representation of increased FY15 NPAT was wrong.

7    Now throughout 11 September 2014 to 19 March 2015 inclusive (the relevant period), Myer was subject to continuous disclosure obligations pursuant to s 674 of the Act and listing rule 3.1 of the ASX listing rules. Subject to exceptions arising under listing rule 3.1A, which are relied upon in Myer’s defence and which I will discuss later, listing rule 3.1 required Myer to immediately notify the ASX, once Myer was or became aware of any information concerning it that a reasonable person would expect to have a material effect on the price or value of MYR ED securities, of that information.

8    For the purposes of listing rule 3.1, the word “aware” was explained in listing rule 19.12 at the relevant time as follows:

an entity becomes aware of information if, and as soon as, an officer of the entity … has, or ought reasonably to have, come into possession of the information in the course of the performance of their duties as an officer of that entity.

9    Moreover, for the purposes of listing rule 3.1, “information” was defined in listing rule 19.12 to include:

(a)    matters of supposition and other matters that are insufficiently definite to warrant disclosure to the market; and

  (b)    matters relating to the intentions, or likely intentions, of a person.

10    As I say, the starting point for the applicant’s case is the statement made by Mr Brookes on 11 September 2014 that Myer anticipated NPAT growth in FY15, which I have defined in terms of the 11 September 2014 representation. In the context of Myer’s NPAT for FY14 being $98.5 million, it is alleged that the 11 September 2014 representation disclosed to the market that Myer expected to achieve NPAT in FY15 in excess of $98.5 million.

11    The applicant claims that Mr Brookes and therefore Myer, under the usual rules of attribution, did not have reasonable grounds for the 11 September 2014 representation and accordingly engaged in misleading or deceptive conduct in contravention of s 1041H of the Act.

12    The applicant’s allegation that Mr Brookes did not have reasonable grounds for the 11 September 2014 representation is also a building block for the applicant’s continuous disclosure claim. The applicant’s continuous disclosure claim has in substance two parts to it. The first part is an allegation that Myer was aware as at 11 September 2014 that it “had no reasonable grounds for representing that it would achieve NPAT in the 2015 financial year in excess of $98.5 million” (no reasonable grounds information). The second part is an allegation that Myer was aware by no later than 11 November 2014 that Myer’s NPAT in FY15 “would be materially lower than in the 2014 financial year [viz. $98.5 million]” (NPAT information). It is alleged that in failing to disclose that specific information of which it is alleged to have been aware, Myer breached its continuous disclosure obligations under listing rule 3.1 and therefore under s 674 of the Act.

13    A yet further claim pleaded by the applicant is that particular publications of Myer on certain dates, being 21 October, 11 November and 21 November 2014, and 2 and 3 March 2015, constituted misleading conduct because those publications did not disclose the specific information which I have identified as underpinning the continuous disclosure claim.

14    Finally, I should note at this point that on 10 October 2018, after the applicant had completed its closing submissions, I granted leave to the applicant to amend its statement of claim to introduce a new claim by which it alleged that Mr Brookes’ statement on 11 September 2014 was a continuing representation. The applicant’s further amended statement of claim was subsequently filed on 15 October 2018. Relevantly, the applicant amended its pleading to advance an extended claim relying on s 769C of the Act. Further, it also amended to allege that Myer’s failure to disclose the information about the earnings forecast matter, which I will define later, and which in essence amounted to a failure to correct case, was misleading or deceptive conduct.

15    The present trial has dealt with all aspects of the applicant’s individual claims and the common issues. For the reasons that I will now elaborate on, the applicant has succeeded on part of its case concerning establishing contraventions of ss 674 and 1041H.

16    In the context of and given the fact that the 11 September 2014 representation had been made, Myer should have disclosed to the market:

(a)    by no later than 21 November 2014 that its likely NPAT for FY15 would not be materially above the FY14 NPAT;

(b)    by no later than 9 December 2014 that its likely NPAT for FY15 was around $92 million;

(c)    by no later than 22 December 2014 that its likely NPAT for FY15 was in the range of $89 to $90 million;

(d)    by no later than 5 January 2015 that its likely NPAT for FY15 was around $90 million;

(e)    by no later than 21 January 2015 that its likely NPAT for FY15 was in the vicinity of $90 million;

(f)    by no later than 9 February 2015 that its likely NPAT for FY15 was in the vicinity of $90 million; and

(g)    by no later than 27 February 2015 that its likely NPAT for FY15 was in the range of $87 to $91 million, depending upon the costs of the strategic review.

17    Now in a sense these are cascading possibilities because making any one disclosure may have removed the need for any later disclosure in the sequence that I have just outlined.

18    In my view on the evidence, Myer can be taken to have held such an opinion as to the likely FY15 NPAT on each of the above dates and accordingly there should have been disclosure of such an opinion under listing rule 3.1 and s 674. But in any event in the context of the 11 September 2014 representation, such a disclosure should have been made at these various points in time to correct the 11 September 2014 representation. By not having so corrected at each of these points in time, Myer engaged in misleading or deceptive conduct in contravention of s 1041H.

19    But notwithstanding these contraventions, I am not convinced that the applicant and group members have suffered any loss flowing from such contraventions.

20    As will become apparent later, I have accepted the market-based causation theory. I have also accepted and found to be valuable event study analysis in terms of assessing materiality and share price inflation. Nevertheless, the applicant and group members may not have suffered any loss flowing from the contraventions that I have identified. This is because the market price for MYR ED securities at the time the contraventions occurred already factored in an NPAT well south of Mr Brookes’ rosy picture painted on 11 September 2014. In other words, the hard-edged scepticism of market analysts and market makers at the time of the contraventions had already deflated Mr Brookes’ inflated views. So, any required corrective statement that should have been made at the time of the contraventions, if it had been made, is likely to have had no or no material effect on the market price of MYR ED securities. QED: As the applicant only advanced a market-based causation theory and an inflation-based measure for its loss analysis for itself and on behalf of group members, all claims for damages would appear to fail.

21    It is convenient to divide my discussion into the following topics:

(a)    The pleaded case – [23] to [49];

(b)    The applicant – [50] to [75];

(c)    Key lay witnesses – [76] to [94];

(d)    The structure of Myer’s business – [95] to [113];

(e)    The development and approval of the FY15 budget – [114] to [296];

(f)    11 to 30 September 2014 events – [297] to [378];

(g)    October – November 2014 events – [379] to [491];

(h)    December 2014 – March 2015 events – [492] to [639];

(i)    Event study framework – [640] to [774];

(j)    Application of event study framework – [775] to [923];

(k)    Share price inflation – [924] to [1120];

(l)    Continuous disclosure claim – [1121] to [1315];

(m)    The “no reasonable grounds” claim and other claims – [1316] to [1499];

(n)    Causation and loss analysis – [1500] to [1718];

(o)    Conclusion – [1719] to [1721].

22    But before proceeding further, let me say that I was much assisted by the comprehensive legal and forensic presentations made by Mr Norman O’Bryan SC for the applicant and Mr Ian Waller QC for Myer including plummeting the depths of statistical theory, although I was not completely convinced about the former’s knowledge of heteroskedasticity.

THE PLEADED CASE

23    It is appropriate at this point to set out in some detail the applicant’s final version of its pleaded case. I gave the applicant leave late in the piece during closing addresses to amend its case. I will explain why I did so and its consequences later in this section.

24    The applicant alleges that on 11 September 2014, Myer announced an NPAT for FY14 of $98.5 million. This was stated in Myer’s ASX & Media Release concerning “Myer Full Year Results ending 26 July 2014” and “Preliminary Financial Report” each published on 11 September 2014.

25    The applicant says that on 11 September 2014 Myer disclosed to the market that it forecast profit growth in FY15. In a statement made by Myer’s then CEO, Mr Brookes on 11 September 2014 as part of Myer’s “Preliminary 2014 Myer Holdings Ltd Earnings Call”, Myer disclosed to the market that its outlook in 2015 was that “[w]e will therefore not only have anticipated sales growth, but anticipated profit growth this year”.

26    It is said that on 11 September 2014 by Myer announcing its FY14 NPAT and its expectation of profit growth, Myer represented to the market that its forecast NPAT for FY15 would be in excess of $98.5 million.

27    The applicant says that Myer’s representation of anticipated profit growth in FY15 made on 11 September 2014 was a representation with respect to a future matter, namely that Myer expected to achieve NPAT in excess of $98.5 million in FY15, which representation was continuing until 19 March 2015.

28    Further, it says that Myer had no reasonable grounds for making the representation alleged and accordingly the representation was taken to be misleading or deceptive pursuant to s 769C(1) of the Act.

29    Accordingly, the applicant says that Myer’s publication of the statements made by Mr Brookes on 11 September 2014 as part of Myer’s “Preliminary 2014 Myer Holdings Ltd Earnings Call” was conduct by Myer in relation to a financial product (namely MYR ED securities) that was misleading or deceptive or was likely to mislead or deceive in breach of s 1041H of the Act, with the publication taken to be misleading or deceptive by operation of s 769C(1).

30    The applicant says that on 19 March 2015 Myer issued a release to the ASX which disclosed that it expected that Myer’s NPAT for FY15 would be in the range of $75 to $80 million excluding one-off costs. Myer disclosed its revised forecast for FY15 in an ASX & Media Release of 19 March 2015 entitled “Myer First Half 2015 Results and Full Year 2015 Guidance”.

31    According to the applicant, Myer’s disclosure to the ASX on 19 March 2015 advised the market for the first time that Myer would not achieve NPAT in FY15 in excess of $98.5 million (the earnings forecast matter).

32    The applicant says that the information concerning the earnings forecast matter that a reasonable person would have expected to have a material effect on the price or value of MYR ED securities, if that information was made generally available, was that:

(a)    Myer had no reasonable grounds for representing that it would achieve NPAT in FY15 in excess of $98.5 million;

(b)    Myer’s sales would not increase in FY15 as previously forecast;

(c)    Myer’s OGP margin would not improve in FY15 as previously forecast;

(d)    Myer’s CCODB in FY15 would increase more than previously forecast; and

(e)    Myer’s NPAT in FY15 would be materially lower than in FY14.

(together, the information about the earnings forecast matter).

33    As to (a) immediately above, the applicant says that on 11 September 2014, Myer was aware that it had no reasonable grounds for representing that it would achieve NPAT in FY15 in excess of $98.5 million.

34    Further, the applicant says that by no later than 11 November 2014, Myer was aware of the information about the earnings forecast matter alleged in (b) to (e) immediately above.

35    Further, the applicant says that despite Myer’s awareness of the above matters, the information about the earnings forecast matter was not generally available until Myer made it generally available by releasing the information about the earnings forecast matter to the ASX on 19 March 2015.

36    Accordingly the applicant says that Myer’s failure to disclose the information about the earnings forecast matter to the market immediately upon becoming aware of the earnings forecast matter constituted a breach of s 674(2) of the Act.

37    Further, the applicant says that Myer’s failure to disclose between 11 September 2014 and 19 March 2015 any information about the earnings forecast matter, including when it published each of the:

(a)    Myer Holdings Limited 2014 Annual Report on 21 October 2014;

(b)    “Q1 2015 Myer Holdings Ltd Corporate Sales Call” on 11 November 2014;

(c)    Myer Holdings Limited Annual General Meeting Chairman’s Address on 21 November 2014;

(d)    “Myer Holdings Ltd Strategic Review Conference Call” on 2 March 2015;

(e)    ASX & Media Release of 2 March 2015 entitled “Myer announces CEO succession and update on strategic review to transform business for future growth”; and

(f)    Letter to shareholders on 3 March 2015;

was conduct by Myer that was misleading or deceptive or was likely to mislead or deceive, in breach of s 1041H of the Act including by reason of the operation of s 769C.

38    Now various particulars were given of this allegation. As concerns the allegation that Myer had no reasonable grounds for continuing to represent that it would achieve NPAT in FY15 in excess of $98.5 million (the first element of “the information about the earnings forecast matter” alleged as (a) above), the applicant referred to matters in existence on 11 September 2014 and from time to time thereafter during the period 11 September 2014 to 19 March 2015 from which it could be inferred that Myer, by continuing to represent by its silence that it would achieve NPAT in FY15 in excess of $98.5 million, engaged in misleading or deceptive conduct.

39    Further, the applicant says that the matters referred to in para (a) of the particulars to paragraph 21 filed on 14 July 2017 (the [21] particulars) and the documents referred to therein were also relevant to a consideration of the matters in existence immediately following the making of the 11 September 2014 representation. For present purposes it is not necessary to detail those matters.

40    Further, the applicant also relies upon the following matters which occurred on various dates that I will shortly identify between 11 September 2014 and 19 March 2015 and which it is said were cumulative upon one another:

(a)    14 September 2014:

(i)    the identification by Myer’s CEO in an email to Myer’s directors that “[t]he pleasing news is that the median NPAT consensus has fallen 14% to $92m and this reflects in the share price”;

(ii)    Myer’s General Manager of Merchandise Planning identifying that Myer’s sales were already $18m behind budget with at least a $22m “sales risk moving forward”;

(b)    15 September 2014: the matters referred to in (b) of the [21] particulars and the documents referred to therein;

(c)    25 September 2014: the matters referred to in (c) of the [21] particulars and the documents referred to therein;

(d)    2 October 2014: the matters referred to in (d) of the [21] particulars and the documents referred to therein;

(e)    5 October 2014: by that date the sales and buying gross profit for week 10 were available, which showed that sales for the year to date were $27.86m behind budget and $4.90m behind forecast and buying gross profit was $14.34m behind budget and $2.28m behind forecast;

(f)    8 October 2014: the matters referred to in (e) of the [21] particulars and the document referred to therein;

(g)    12 October 2014: by that date the sales and buying gross profit for week 11 were available, which showed that sales for the year to date were $33.07m behind budget and $9.45m behind forecast and buying gross profit was $17.35m behind budget and $4.46m behind forecast;

(h)    15 October 2014:

(i)    the matters referred to in (f) of the [21] particulars and the document referred to therein;

(ii)    the matters referred to in the September FY15 Financial Board Report, including the note that Myer had reversed the year-to-date provision for the Myer Annual Incentive and that the NPAT loss of $5.8m was nonetheless $1.6m below budget;

(i)    16 October 2014: the matters referred to in (g) of the [21] particulars and the documents referred to therein;

(j)    26 October 2014: the matters referred to in (h) of the [21] particulars and the documents referred to therein;

(k)    30 October 2014: by that date the “November Forecast for FY15” had been prepared, including “the actualisation of August to October”, which disclosed that “the NPAT forecast (on a consolidated basis) for the year is $95m, which is $11m below budget ($107m) and $3m down on last year ($98.5m)”. The document also noted that removing “unidentified savings” and “vacancy provisions” from the forecast “would reduce the npat forecast to $90m” and that there was a $6m risk to NPAT from “the Online operation”. If both risks were included, a FY15 NPAT forecast of $84m would have been calculated;

(l)    31 October 2014: the matters referred to in (i) of the [21] particulars and the documents referred to therein;

(m)    2 November 2014: by this time:

(i)    sales and buying gross profit results for week 14 were known, which disclosed for the year-to-date that sales were $15.09m below forecast and buying gross profit was $10.37m below forecast;

(ii)    “The Good, The Bad and the Ugly” email had been sent to the Myer’s directors; and

(iii)    Myer’s Chairman had replied to “The Good, The Bad and the Ugly” email and said: “I get the complex message!”;

(n)    9 November 2014: by this time sales and buying gross profit results for week 15 were known which disclosed for the year-to-date that sales were $23.40m below forecast and buying gross profit was $13.56m below forecast;

(o)    13 November 2014: by this date Myer had prepared a draft FY15 budget disclosing an NPAT forecast for FY15 of $92m, with that forecast reliant upon the second quarter achieving NPAT of $97m (or 104.4% of the forecast NPAT for the full year) in circumstances where Myer had made a net loss of $17m in the first quarter, and had forecast that it would achieve NPAT of only $13m in the second half of FY15;

(p)    14 November 2014: by this date Myer had prepared a draft presentation entitled “Revised Forecast FY15 Quarter 2 Focus” disclosing a then-current forecast or “FY Actualised S15 to FY 15 Forecast” NPAT of $91m for the full year, and outlining options to recover NPAT to the budgeted level. The options included cutting the CCODB including by “deep cuts (20%) of support office headcount”;

(q)    16 November 2014: by this date the sales and buying gross profit results for week 16 were known which disclosed that for the year-to-date that sales were $22.52m below forecast and buying gross profit was $13.95m below forecast;

(r)    17 November 2014: by this date the “FY15 Target: A Quarter 2 Focus” document had been finalised, which disclosed an “Actuals to wk16 + approved reforecast” NPAT of $100m, which was reliant on first half NPAT of $73m and second half NPAT of $27m, but which provided no explanation as to how the “approved reforecast” figures had been significantly increased above those calculated on inter-alia 13 and 14 November 2014;

(s)    20 November 2014: by this date Myer had prepared an FY15 budget (not marked as “draft”) in the same format as that dated 13 November 2014 disclosing an NPAT forecast for FY15 of $90m, with that forecast reliant upon achieving NPAT of $96m (or 106.5% of the forecast NPAT for the full year) in the second quarter in circumstances where Myer had made a net loss of $17m in the first quarter, and had forecast that it would achieve an NPAT of only $11m in the second half;

(t)    24 November 2014: by this date the sales and buying gross profit results for week 17 were known which disclosed that for the year-to-date sales were $23.07m below forecast and buying gross profit was $17.17m below forecast;

(u)    30 November 2014: by this date the sales and buying gross profit results for week 18 were known which disclosed that for the year-to-date sales were $29.18m below forecast and buying gross profit was $19.86m below forecast;

(v)    7 December 2014: by this date the sales and buying gross profit results for week 19 were known which disclosed that for the year-to-date sales were $32.51 m below forecast and buying gross profit was $22.45m below forecast;

(w)    8 December 2014: on this date Myer’s CFO gave to Myer’s CEO a draft “Full Year Forecast- FY15” presentation which disclosed an “FY15 Forecast” lower than “FY 14 Actual” and which disclosed that with sales growth of 4% on FY14 an NPAT of $92m could be achieved, with sales growth of 3% on FY14 an NPAT of $83m could be achieved, and with sales growth of 2% on FY14 an NPAT of $74m could be achieved without “Actions/Levers” being employed to recover NPAT to a $94m level;

(x)    9 December 2014: on this date:

(i)    a revised version of the “Full Year Forecast - FY15” presentation (see para (w) above) was tabled at Myer’s board meeting which disclosed an FY15 Forecast of $92m, approximately $7m less than the FY14 Actual NPAT of $98.5m. With lower sales growth rates of 4%, 3% and 2% on FY14 sales, NPAT forecasts of $89m, $80m and $74m respectively were shown, although “Actions/Levers” said to be capable of recovering NPAT to a $91m or $92m level were also shown;

(ii)    Myer’s board discussed the forecast and noted that “the full year revised forecast is slightly above consensus”;

(y)    14 December 2014: on this date the sales and buying gross profit results for week 20 were known which disclosed that for the year-to-date sales were $8.44m below forecast and buying gross profit was $3.25m below forecast;

(z)    18 December 2014: on this date Myer’s CEO sent an email setting out his concerns in relation to achieving “forecast” over the Christmas trading period;

(aa)    21 December 2014: on this date the sales and buying gross profit results for week 21 were known which disclosed that for the year-to-date sales were $22.59m below forecast and buying gross profit was $12.26m below forecast;

(ab)    22 December 2014: on this date:

(i)    Myer’s board conducted a “board discussion” by telephone, the minutes of which disclose that the current forecast NPAT could potentially be materially less than consensus but that with planned actions the forecast for FY15 NPAT would be $89m; and

(ii)    Myer’s board was given a presentation entitled “Full Year Forecast- FY15 December 22 Board update” which disclosed that the “FY15 Current Forecast (CF)” was for FY15 NPAT of $68m and that only with a $21m boost to NPAT in the second half could an FY15 NPAT of $89m be achieved;

(ac)    23 December 2014: on this date Myer’s General Manager Corporate Affairs and Media gave a statement drafted to notify the market on or around 5 January 2015 that Myer no longer expected to achieve earnings growth on last year to Myer’s CEO, CFO and Company Secretary for their consideration;

(ad)    28 December 2014: on this date the sales and buying gross profit results for week 22 were known which disclosed that for the year-to-date sales were $21.14m below forecast and buying gross profit was $11.08m below forecast;

(ae)    4 January 2015: on this date the sales and buying gross profit results for week 23 were known which disclosed that for the year-to-date sales were $20.96m below forecast and buying gross profit was $12.80m below forecast. For week 23, Myer’s sales were $93m, up $0.17m on a forecast of $92.8m;

(af)    5 January 2015: on this date:

(i)    Myer’s board conducted a “board discussion” by telephone, the minutes of which disclose that “the full year forecast NPAT is $90m, with cost actions, although the full year forecast is still being finalised” and that the board determined that no update to the market was necessary because “the current forecast NPAT result [was] in line with the Bloomberg consensus”;

(ii)    Myer’s board was given a presentation entitled “Full Year Forecast - FY15 January 5 Board update” which disclosed at slide 4 an “FY15 Current Forecast (CF)” of FY15 NPAT of $74m, and an NPAT “with actions” of $90m;

(ag)    11 January 2015: on this date the sales and buying gross profit results for week 24 were known which disclosed that for the year-to-date sales were $21.77m below forecast and buying gross profit was $12.27m below forecast. For week 24, Myer’s sales were $69.5m, down $0.81m on a forecast of $70.3m;

(ah)    18 January 2015: on this date the sales and buying gross profit results for week 25 were known which disclosed that for the year-to-date sales were $24.43m below forecast and buying gross profit was $11.11 m below forecast. For week 25, Myer’s sales were $54.8m, down $2.65m on a forecast of $57.5m;

(ai)    21 January 2015: on this date:

(i)    Myer updated its “FY15 Current Forecast (CF)” and “FY15 CF + Actions” showing figures of $76m and $90m respectively;

(ii)    Myer’s CEO sent an email to each of the directors of Myer as well as Myer’s CFO and Company Secretary in which it was stated that “[o]ur belief is that we have no need to disclose any updates to the market out of our normal cycle” on inter-alia the following grounds:

  1.    Myer’s forecast showed $90m with less cost reduction than previously presented to the board;

  2.    “January trade is up 5% on last year and 3% ahead of forecast with good momentum”, although according to the applicant the statement concerning January trade being 3% ahead of forecast was inconsistent with the matters referred to in paragraphs (ee), (gg) and (hh) above;

  3.    “split of 68% average in first half profit is in line with this year but 2014 was a one-off”, although according to the applicant the status of FY14 as a “one-off” is not supported by the figures shown in Exhibit A1 tendered before me;

(iii)    Myer’s board conducted a “board discussion” by telephone, the minutes of which disclose that “[t]he Board discussed the NPAT split between H1 and H2, and compared it to the historic split. Whilst last year the NPAT split between H1 and H2 was 82%:12% [sic], in the previous four years the split has been around two thirds:one third. The current forecast for the split for 2015 will be approximately two thirds:one third. Further, it was noted that the Bloomburg [sic] consensus NPAT figure is currently $90m, which is in line with the FY2015 NPAT forecast with cost actions, although the full year NPAT forecast is being finalised”;

(aj)    9 February 2015: on this date:

(i)    Myer’s “FY15 Forecast February 2015 Board update” disclosing an “FY15 Current Forecast (CF)” of $76m and “FY15 CF + Actions” of $90m, was presented at Myer’s board meeting. Both the “CF” and “CF + Actions” forecasts were said to be dependent on 4% growth in sales over FY14 in H2, where only 2% growth had been achieved in H1 of FY15; and

(ii)    Myer’s January FY15 financial performance was known and advised to Myer’s board which showed that January performance was below the “forecast” level and that Myer had been unable to constrain its costs as forecast;

(ak)    27 February 2015: on this date a revised forecast was presented at Myer’s board meeting and Myer’s board noted inter-alia that “the forecast NPAT for the year, before the strategic review costs, is $91m, and including the strategic review costs is $87m. The Bloomberg consensus NPAT is $89m” and that there were “potential downside risks” to sales and operating gross profit;

(al)    early-March 2015: Myer’s performance in February 2015 was weaker than Myer’s forecast and Myer had been unable to constrain its costs as forecast with a CCODB of $102.2m achieved as against a forecast of $100.1m, and an NPAT of ($18.7m) as against a forecast of ($14.8m). The figures are recorded in the “Financial Summary February 2015” completed on 11 March 2015 and set out in the “February FY2015 Financial Board Report” at page 2; and

(am)    for each week in FY15 up to and including week 33 ending on 14 March 2015, the sales and buying gross profit figures recorded in Exhibit A7 as tendered before me.

41    Let me state now that I have considered each and every one of the above documents and matters although the more detailed chronology that I have set out later places varying emphasis on these matters.

42    Further, as noted above, at the heel of the hunt I gave the applicant leave to amend to plead a continuing representation case and a failure to correct case, bounded only by the 19 March 2015 date. Myer opposed the application. But its disappointment in my granting leave and any prejudice were ameliorated by my giving Myer leave to re-open its case and to call further evidence to address the amendments. It took that opportunity. It was also protected by any costs consequences.

43    Let me turn to another part of the applicant’s pleaded case. The applicant’s loss and damage case is the following.

44    The applicant and group members held their interests in MYR ED securities in a market:

(a)    regulated by, inter-alia, the ASX listing rules and the Act; and

(b)    where the price or value of MYR ED securities would reasonably be expected to be informed and affected by information disclosed in accordance with the ASX listing rules and the Act.

45    The applicant expected that Myer had complied with its obligations under the ASX listing rules and the Act and had no knowledge of the information about the earnings forecast matter when it purchased 40,000 MYR ED securities on 17 November 2014.

46    It is said that the applicant and the group members acquired their MYR ED securities in a market:

(a)    in which Myer had failed to disclose information about the earnings forecast matter that a reasonable person would expect to have a material effect on the price or value of MYR ED securities;

(b)    in which Myer had engaged in the misleading or deceptive conduct alleged above, where each instance of misleading or deceptive conduct affected the applicant and those sub-groups of group members who acquired their MYR ED securities after the occurrence of each respective instance of misleading or deceptive conduct alleged; and

(c)    in which the significant falls in the price of MYR ED securities on and after 19 March 2015 were caused by and were a result of the disclosure of information about the earnings forecast matter.

47    The applicant says that the failure to disclose the information about the earnings forecast matter caused the market price for MYR ED securities prior to 19 March 2015 to be substantially greater than:

(a)    their true value;

(b)    further or alternatively, the market price for MYR ED securities that would have prevailed but for Myer’s failure to disclose the information about the earnings forecast matter at any time prior to 19 March 2015.

48    The applicant says that the applicant and group members have each suffered loss and damage because of and resulting from the failure to disclose the information about the earnings forecast matter to the market, the applicant and those sub-groups of group members who acquired their MYR ED securities after the occurrence of each respective instance of misleading or deceptive conduct by Myer alleged have also suffered loss by that misleading or deceptive conduct, and all group members are entitled to compensation pursuant to ss 1041I, 1317HA and 1325 of the Act. It is said that Myer’s failure to disclose the information about the earnings forecast matter caused the applicant and the group members to suffer loss and damage because the failure to disclose caused the market price for MYR ED securities prior to 19 March 2015 to be substantially greater than their true value or further or alternatively, the market price for MYR ED securities that would have prevailed but for Myer’s failure to disclose the information about the earnings forecast matter. Accordingly the applicant and the group members overpaid for their MYR ED securities. The losses are said to be comprised of the difference between the prices at which the MYR ED securities were acquired by the applicant and the group members and the prices that would have prevailed at the times of those acquisitions had the information about the earnings forecast matter been disclosed at that time and, as relevant to the applicant and those sub-groups of group members who acquired their MYR ED securities after the occurrence of each respective instance of misleading or deceptive conduct alleged, had Myer not engaged in the alleged misleading or deceptive conduct.

49    It will be apparent that the applicant and group members are not putting a causation and loss case based upon specific reliance, but rather are putting a case solely on the basis of an indirect or market-based causation thesis, which causation thesis in my view is available as a matter of law.

THE APPLICANT

50    Before proceeding further, let me say something about the applicant.

51    The applicant is the trustee of a self-managed superannuation fund known as the “Amies Superannuation Fund” for Mr Christopher Amies (the SMSF). Prior to the appointment of the applicant as trustee of the SMSF in 2015, Mr Amies and his sister, Ms Jacinta Amies, were the trustees of the SMSF.

52    Mr Amies had spent most of his career working in finance and investment banking roles. He had also been active in small business, including as a franchisee of several cafes and most recently as the owner of Sunshine Coast Organic Meats, the largest organic butcher in South East Queensland. The finance and investment banking roles he had held included being an investment manager for an investment company over a thirteen year period, investment banking roles with Prout Partners and First Class Capital, chief financial officer of Bright Eyes, a subsidiary of Oakley, Inc and various roles with North Ltd and its subsidiary Energy Resources of Australia Ltd.

53    He held a Bachelor of Commerce from the University of Queensland, a Graduate Diploma in Applied Finance and Investment from the Securities Institute of Australia, and a Masters of Applied Finance from Macquarie University.

54    Mr Amies gave evidence of the following matters on behalf of the applicant. He was not cross-examined.

55    Mr Amies had been investing in listed companies since 1985 when he was at high school. He had invested continuously since then. Over the last ten years he had managed an investment portfolio with a value ranging from $1m to $10m.

56    He established the SMSF in March 2004. The purpose of establishing the SMSF was to take ownership of investment decisions for his, and his sister’s, superannuation purposes. From the establishment of the SMSF, both he and his sister had accounts with the SMSF and both acted as trustees.

57    His investment strategy for the SMSF was to be a long-term investor in shares in listed companies. But his investment strategy for his share investments other than those in the SMSF had been focused on achieving trading gains over the short to medium-term.

58    When he made investment decisions, including for the SMSF, he tried to take relevant financial information into account. The information he habitually took into account included earnings outlooks, market consensus expectations, company outlook statements, commentary by public commentators, economic conditions generally or in the specific sector, as well as his own thoughts and analysis.

59    He also took into account the views of various stockbrokers to whom he talked from time to time. He had used several different stockbrokers over the years and from time to time he discussed with them general market conditions and specific stocks.

60    When he made investment decisions, he took into account a company’s share price, its most recent results, statements which had been made by the company, and whether he considered the market as a whole to be relatively cheap or expensive.

61    He was aware that listed public companies had a continuous disclosure obligation which obliged them to make announcements to the market as soon as they became aware of materially price-sensitive information.

62    He always assumed that market prices for shares reflected all available information which was known to the market. As I say, he held a Masters of Applied Finance degree from Macquarie University and had studied the operation of the stock market.

63    Mr Amies made the decision for the SMSF to purchase Myer shares in November 2014.

64    He discussed the potential purchase with a stockbroker friend of his, Mr Shayne Gilbert, who worked as a broker for Ord Minnett at the time.

65    Mr Gilbert and he had a particular and long-running interest in Myer. They attended together one of the town-hall investor meetings held in late 2009 at the time of the initial public offering of Myer shares. I note that in evidence was a photograph of Mr Amies with Myer ambassador, Ms Jennifer Hawkins, taken at that meeting.

66    Mr Amies did not do any particular research into Myer at the time of the initial public offering of Myer shares. Generally, he read the Australian Financial Review and the business section of The Australian every day, along with reports from several stockbrokers each day. He also kept a good working knowledge of the activities and performance of many listed companies, including Myer. And when brokers released research reports on particular companies, he tended to read those reports.

67    In 2014 he was aware that Myer’s share price had declined since listing but, despite this, Myer’s management commentary remained positive. As a consequence, he thought that Myer shares looked cheap in 2014.

68    When he spoke to Mr Gilbert, they discussed the fact that Myer shares appeared to be cheap, offered a good dividend, and that Myer’s outlook was positive based on Myer’s own guidance to the market.

69    Mr Amies did not execute the purchase of Myer shares on 17 November 2014 with Mr Gilbert because the SMSF did not have a trading account with Ord Minnett. Instead he gave instructions to Morgan’s to buy the shares on an “execution only” basis.

70    The trustees of the SMSF, Mr Amies and his sister, purchased 40,000 MYR ED securities on 17 November 2014, with settlement on 20 November 2014.

71    As trustees they paid $1.7575 for each MYR ED security which were acquired on-market on 17 November 2014.

72    They held those 40,000 MYR ED securities at the opening of the market on 19 March 2015.

73    When the SMSF purchased the shares on 17 November 2014, Mr Amies did not have any inside information about Myer and, in particular, he did not know any of the information which was disclosed by Myer to the market for the first time on 19 March 2015.

74    The applicant was appointed trustee of the SMSF on 31 July 2015 and so the trust property of the SMSF vested in the applicant from that time.

75    The applicant, as trustee of the SMSF, continued to hold the MYR ED securities following its appointment as trustee until their sale on 1 November 2016 at a price of $1.1650 for each MYR ED security.

KEY LAY WITNESSES

76    Myer principally relied on evidence from Mr Brookes and its chief financial officer, Mr Mark Ashby at the relevant time. Mr Brookes and Mr Ashby were involved in the preparation of the budget for FY15 and the decision to present that budget to the board for approval, and they also gave evidence in relation to these matters.

77    Myer also relied on evidence from the heads of its stores and merchandise teams, being Mr Anthony Sutton, the Executive General Manager of the Stores team and Mr Adam Stapleton, the Executive General Manager of Merchandise.

78    Further, Myer also relied on evidence from each of its directors at the relevant time, which in addition to Mr Brookes included Mr Eric Paul McClintock, Mr Robert Edward Thorn, Mr Rupert Horden Myer, Mr Ian Grainger Cornell, Ms Christine Joanna Froggatt, and Ms Anne Bernadette Brennan.

79    Mr Brookes, Mr Ashby, Mr Sutton and Mr Stapleton had between them considerable retail experience.

80    Mr Brookes was the CEO and MD of Myer from 12 July 2006 to 24 February 2015, and had therefore had ultimate management responsibility for the Myer business, subject to oversight by the board, for a period of about eight years at the time the FY15 budget was prepared. Prior to his time at Myer, Mr Brookes worked for 25 years at Woolworths in Australia, including as the General Manager of Woolworths in Queensland. Mr Brookes had very significant corporate experience in the retail sector in Australia (over 30 years), and following his time at Myer he became the CEO of the largest clothing, footwear and general merchandise retailer in South Africa (which has over 1,400 stores).

81    Mr Ashby also had significant relevant experience and qualifications. He was a certified practising accountant with around 30 years of corporate and finance experience, the majority of which has been in senior finance roles with retail companies. Further, he had substantial experience at Myer, having been, at the relevant time, the CFO at Myer for over six years since 14 January 2008. Further, he had substantial corporate experience, having been the CFO of Mitre10 Australia Limited between 2004 and 2008, and having been involved as both a senior executive and in less senior roles in forecasting, budgeting and preparing business plans for various retail businesses.

82    In my view both Mr Brookes and Mr Ashby were honest witnesses, but some aspects of their evidence were problematic particularly once one proceeded into and past October 2014 concerning their states of mind as to the likely NPAT for FY15. I was also left surprised about their professed ignorance concerning some of the draft forecasts and the like that were prepared at and after that time. Further, in relation to Mr Brookes’ evidence concerning his understanding as to the board’s position at the board meeting on 10 September 2014, his understanding was in tension with the understanding of other directors. I do not need to linger on this aspect at this point.

83    Mr Stapleton, the head of the Merchandise team, was also an experienced and senior retailer, who has gone on to hold senior management roles at Coles, and then to become the CEO of Grill’d Burgers, since he left Myer. At the relevant time, his experience included working with Myer for more than 12 years, including more than 10 years in senior merchandise and marketing roles, including as head of Merchandise from December 2012 to July 2014.

84    Mr Tony Sutton, the head of the Stores team, had worked at Myer for over 25 years in roles related to the operations of Myer’s department stores. In these roles he had extensive experience in relation to store operations, and in relation to the process of preparing budget submissions by the Stores team.

85    Each of these members of the senior management team also gave evidence as to their role in the preparation of the FY15 budget.

86    Each of the directors also had significant relevant experience. Let me give a brief summary.

87    Mr McClintock, the Chair of the board, had been a director of Myer since August 2012. Mr McClintock had very significant corporate experience, including serving on the boards of dozens of companies and entities, a number of which were listed on the ASX.

88    Mr Thorn had over a decade of experience as a director of numerous retail companies.

89    Mr Myer, the Deputy Chair of the board at the relevant time, had been a director of Myer since 2006, as well as having served as a director of a number of other companies including ASX listed companies.

90    Ms Brennan had been a director of Myer since 2009, was the director of a number of other ASX listed companies, had been the CFO of an ASX listed company (CSR Limited) and had worked for almost 20 years at Ernst & Young, Arthur Anderson and KPMG.

91    Ms Froggatt had also been a director of Myer since 2010, and was the director of various other companies, including an ASX listed company.

92    Mr Cornell had worked in senior roles in the retail industry for over 15 years.

93    These directors gave evidence in relation to their practice in approving budgets at Myer, and in relation to their knowledge, particularly whether they knew that Myer’s NPAT in FY15 would be materially lower than in FY14.

94    On the whole their evidence was credible and compelling, particularly the evidence given by Mr McClintock who was smart, competent and direct.

THE STRUCTURE OF MYER’S BUSINESS

95    It is necessary at this point to say something about the structure of Myer’s business. What I am about to describe is not controversial and is largely taken from Myer’s accurate summary of the evidence.

Teams and key personnel at Myer

96    The key “teams” at Myer were the following.

97    First, the National Store Operations team (Stores team or NSO). This was the team that was directly responsible for running the department stores. The head of the Stores team at all relevant times was Mr Sutton. He reported directly to Mr Brookes. Reporting to Mr Sutton were a series of Regional Managers who were responsible for the stores in a particular State (or part of a State, for example, NSW had two Regional Store Managers) as well as various administrative positions.

98    Second, the Merchandise and Marketing team (Merchandise team). This was the team that was directly responsible for running the merchandise and marketing aspects of the Myer business, including product selection, range allocations, development of new product ranges and negotiations with suppliers. The head of the Merchandise team at the time of the preparation of the FY15 budget was Mr Stapleton. The head of Merchandise Planning (who was then Mr Darrel Maillet) reported to Mr Stapleton.

99    Third, the Property team, which worked on all issues associated with new stores and refurbishments, lease negotiation, space allocation, store maintenance and property design. Mr Tim Clark was the head of the Property team and reported directly to Mr Brookes. In relation to new stores, this team worked on the evaluation of new sites and consideration of matters such as local demographics, the size of a centre in which a new store would be located, potential population growth in the area, and the likely capital costs of the new store.

100    Fourth, the Online team, which worked closely with the IT and supply chain teams. When preparing the yearly budget, this team provided an analysis of the sales and forecast for the online component of the business. At the relevant time Mr Richard Umbers was the Chief Information and Supply Chain Officer and the head of this team.

101    Fifth, the Finance team, which was responsible for all of the traditional financial elements of the business, including accounting, treasury and tax, as well as investor relations, audit, risk, compliance and assurance. Mr Ashby was the head of the Finance team.

102    The heads of each of these teams formed part of the Executive General Management (EGM), and reported directly to Mr Brookes.

The department store business and other parts of the business

103    At the relevant time, the Myer business consisted of:

(a)    its physical department stores;

(b)    the online business, by which it sold merchandise to customers online;

(c)    the Sass & Bide business, being a separate brand owned by Myer which was sold out of separate Sass & Bide stores; and

(d)    free-standing stores, being three speciality stores that were being trialled in Epping and which only sold Myer Exclusive Brand (MEB) products.

104    Various internal Myer documents that forecast or discuss sales and other financial metrics only refer to or incorporate figures for the “Department Store” business, which was typically used in internal documents to mean both the physical department stores and the online business, but which did not include the Sass & Bide or “free-standing” stores.

Key financial metrics

105    The key drivers of Myer’s NPAT which are evident from the documents are:

(a)    Sales, being the total amount received by Myer for inventory sold;

(b)    OGP margin, which is the operating gross profit as a percentage of sales. Operating gross profit consisted of total sales minus the cost of goods sold with other adjustments made for the cost of markdowns, discounts on gift cards and other matters; and

(c)    CCODB, which as I have said is Myer’s cash cost of doing business. The CCODB was all costs incurred in running the business excluding depreciation and amortisation.

MEBs, National Brands and Concessions

106    Myer’s merchandise offering fell into three general categories which were referred to as MEBs, National Brands and Concessions. The mix of sales as between these categories was important and influenced the OGP margin. In particular, MEBs had the highest OGP margin, and therefore increasing sales of MEBs, relative to National Brands and Concessions, would improve the OGP margin.

Key trading periods relative to annual results

107    Myer’s financial year ended on the last Saturday in July, beginning on the Sunday following.

108    Historically, a very significant proportion of Myer’s sales and full year NPAT was achieved during the second quarter (Q2), which comprised the months of November, December and January, particularly in December and January which include the Christmas, Boxing Day and New Year sales. As an example, in FY14 Q2 generated 87.6% of NPAT, Q4 generated 33.6% of NPAT, and Q1 and Q3 generated losses.

109    According to Myer’s case, the actual results for Q1 are not, given their relative insignificance when compared to Q2 and Q4, a sure guide for the likely full year result and it is difficult to determine, at least until the results for Q2 are available which does not occur until early February, where NPAT is likely to end up for the full year based on actual results.

MAIP and CEO One Time Costs

110    The FY15 budget included two relatively significant cost items in the figures that were factored into the forecast NPAT of $107 million.

111    The first was “CEO One Time Costs”. These were essentially discretionary one-off or non-recurring costs that the CEO could determine whether to incur. Mr Brookes’ evidence was that he would typically only incur these costs if the business was going well. Mr Ashby’s evidence was that if sales performance was lower than expected it was relatively easy to cut these costs back. The FY15 budget included $17 million for such costs, being an increase of $6 million from FY14.

112    The second was MAIP. MAIP was the Myer Annual Incentive Plan, which was a bonus scheme (also known as “STIP”, short term incentive plan) which provided for potential additional remuneration to be payable to Myer senior management including the CEO and CFO. The criteria for payment of MAIP focused on financial and non-financial targets, including, in particular, earnings before interest and tax (EBIT) and sales growth. Accordingly, if EBIT and sales growth were below budget, then at least 80% of the MAIP provided for in the budget would not be paid.

113    The FY15 budget made a provision of $12 million for MAIP being 85% of the total MAIP payment that might become due. This was in circumstances where no MAIP had been paid in FY14.

THE DEVELOPMENT AND APPROVAL OF THE FY15 BUDGET

114    The evidence is that the FY15 budget was prepared as the result of a comprehensive and thorough process. Indeed, I should say now that at the time the budget was approved and also as at 11 September 2014, all of Myer’s directors and relevant senior executives considered the forecast figures in the budget to be achievable.

The budgeting process

115    The process for preparing a budget including the FY15 budget was a lengthy and detailed one, which involved input from a substantial number of experienced people within the Myer business.

116    The first important step was for the key teams within Myer to prepare and submit to the Finance team their initial submission setting out what they expected Myer’s financial metrics would be for the coming year.

117    This aspect of the budget was a “bottom up” process, which involved the build-up of financial information for the business from the work of staff in particular in the Merchandise and Stores teams, albeit that this process would involve broad guidance from senior management.

118    This process commenced around January or February each year. Early in the process a series of key parameters were provided to the teams involved in the preparation of the budget (including the Merchandise team and the Stores team) and there would be a strategy session which focused on development of the following year’s budget.

119    The Merchandise team, and the Stores team, would each undertake substantial work in order to prepare a submission to the Finance team in relation to estimated sales for the coming year.

120    Relevantly, the Merchandise team consisted of:

(a)    the head of Merchandise Planning who reported to Mr Stapleton;

(b)    heads of each of 12 trading product categories (TPCs), being a “general manager” and a “head planner” (Merchandise Planning Manager or MPM) for each TPC;

(c)    “buyers” within each TPC; for each TPC there were a number of “buyers”, who would be responsible for purchasing one or more specific products within that TPC; and

(d)    “planners”, being staff who analysed the performance of TPCs (or specific products within TPCs), and worked with the buyers in each TPC.

121    The evidence was that there were various reasons that militated against buyers estimating an unrealistically high sales figure for their products for the coming year.

122    The Merchandise team would prepare its own forecast of sales. This would commence by preparing:

(a)    a sales forecast for each category of product within a TPC; this “sales plan” was prepared by the buyer and planner for each product category to create a sales estimate for that category; and

(b)    a sales forecast for each TPC as a whole, which involved combining the sales plans for each product category within the TPC.

123    The sales plan (forecast) for each category within a TPC was then reviewed by the general manager and MPM for that TPC. The job of the general manager and MPM in conducting this review was to ensure that each category was setting itself a realistic budget.

124    The MPM for each TPC would then present the sales plan for that TPC to the head of Merchandise Planning (Mr Maillet), who would review it.

125    The sales plan for each TPC would then be reviewed by Mr Stapleton.

126    The forecasts for each TPC would then be combined into a submission by the Merchandise team to the Finance team setting out estimated sales (and the First Margin and Buying Gross Profit (BGP)) for the coming year. In the submission, as estimating the sales for each TPC, the Merchandise team would also break down the estimated sales for each TPC within National Brands, MEBs and Concessions.

127    In preparing the sales figures for each TPC, the Merchandise team would consider factors such as sales in that TPC for the previous year, whether new brands would be introduced for that TPC in the coming year, store openings and closures, and the entry or exit of a competitor.

128    I would note that relevantly to the FY15 budget, the sales figure included by the Merchandise team in its original submission was $3,266m excluding Sass & Bide and free-standing stores. The final sales figure adopted in the FY15 budget was $3,267m excluding Sass & Bide and free-standing stores.

129    As I said above, the Stores team consisted of a series of Regional Managers, each of whom would be responsible for a particular State (or part of a State). It also consisted of Store Managers, each of whom would be responsible for a particular store.

130    The Stores team would prepare a separate submission of what sales it anticipated for the store network for the coming year. These sales figures would be prepared by each Regional Manager, with input from each Store Manager, and would be prepared by considering factors such as:

(a)    how each store performed in the previous year;

(b)    refurbishments, and whether sales would increase due to a completed refurbishment or sales would decrease due to the commencement of a refurbishment;

(c)    whether any store may be subject to disruptions such as renovations to the mall it was situated in or roadworks around the mall;

(d)    whether the mall could attract more customers due to developments to the mall being completed;

(e)    economic factors and demographic factors of the area the store was located in;

(f)    competitors entering or exiting the area the store was located in; and

(g)    new initiatives for individual stores.

131    The Stores team would have regard to each of these factors to ensure that a balanced view was reached as to the estimated sales which a store was expected to achieve in the coming year.

132    The Stores team would also consider the opening of new stores and the closure of existing stores. The estimate of sales for a new store that was to be opened involved consideration of the business case for opening the new store, including cannibalisation of sales from existing stores (i.e. loss of sales by an existing store that was located close by to the new store).

133    The impact of the closure of an existing store considered the extent to which customers who shopped at the existing store might shop at another Myer store in a nearby area.

134    The sales for each store would then be combined into a submission from the Stores team to the Finance team. Relevantly to the FY15 budget, the submission of the Stores team was for sales of $3,286m excluding Sass & Bide and free-standing stores. This figure built from the “bottom-up” was ultimately higher than the sales figure that Myer included in the FY15 budget being $3,267m excluding Sass & Bide and free-standing stores.

135    The submissions of the Merchandise team and the Stores team were two different perspectives on the one matter, being sales, with each submission being a useful check against the other.

136    After the initial submissions of the Merchandise team and the Stores team were prepared:

(a)    Mr Ashby would analyse the budget with his direct reports and seek to identify further opportunities to increase sales and decrease costs; and

(b)    senior management (the EGMs) would meet to consider the first cut of the draft budget.

137    From this point a detailed process would be undertaken by which the proposed budget would be considered, discussed and refined, so as to ultimately result in a final budget that would be presented to and approved by the board.

The purpose and uses of a budget at Myer

138    The finalised budget, and the figures and details underlying it, served several purposes. First, it was used to determine where resources were to be allocated within Myer’s business, that is, in relation to matters such as staffing. Second, it was used to run the business, such as determining what stock to purchase. Third, bonuses under the MAIP were significantly dependent on achieving metrics in the budget, and in particular earnings and sales. Overall, the intention underlying the budget was to prepare figures that were realistic and achievable or which were considered to be realistically achievable although not easy to achieve.

139    The evidence was that an unrealistic budget was likely to have several negative effects on the business. First, if an unachievable sales figure was set this would likely lead to a surplus of inventory, which would in turn harm margins due to the need to sell stock at a “markdown”. Second, an unrealistic sales figure would lead to excess store costs, that is, by way of overstaffing. Third, an unrealistic budget may disincentivise staff, who would not be paid bonuses, or would be paid smaller bonuses, because bonuses were dependent on figures in the budget. Fourth, an unrealistic budget may lead to a loss of credibility by senior management among staff.

140    According to Myer’s submissions, the process undertaken by Myer, along with the evident issues that would arise if an unrealistic budget was set, meant that the process by which the budget was arrived at was predisposed not to be unduly optimistic, whilst setting a budget that presented a challenge to the business, and that there is in turn a strong inference that management would be unlikely to present for approval a budget which they did not consider to be realistic. To put the matter another way, there is no proper basis to suggest any reason why management would knowingly inflate the figures in a budget.

The FY15 budget – Applicant’s submissions

141    Let me at this point summarise the applicant’s contentions.

142    The applicant contends that the senior management of Myer, particularly Mr Brookes and Mr Ashby were determined to produce a FY15 budget showing substantial growth in sales and profits and which reversed the declines in sales and profitability which Myer had experienced in the preceding four financial years, since its maiden profit result in FY10. It is said that this can be seen in the FY15 budget preparation and planning documents, for example Mr Ashby’s email of 26 March 2014 to Mr Sutton, Ms Kerry Davenport and Mr Chris Lauder in which he described the budget submission which he had received in respect of the new store sales cannibalisation. He said “clearly it is a net unacceptable level for mt gravatt and joondalup” and demanded to see “realistic sales numbers ASAP”. According to the applicant, the figures which Mr Ashby had received are consistent with the figures which appeared in the original draft of the budget but which were later amended.

143    Further, the applicant submitted that Mr Ashby’s longer email of the following day, at 2.02 am on 27 March 2014, to Mr Stapleton, Mr Sutton, Mr John Joyce, Mr Timothy Clark, Ms Louise Tebutt, Mr Anthony Coelho, Ms Marion Rodwell and Ms Megan Foster with Mr Brookes, Mr Richard Harrison, Mr Len Kocovic, Mr Lauder, Ms Vicki Reid and Mr Greg Travers copied in, and titled “FY15 budget build up” more clearly illustrates his ambitions for the FY15 budget, in which he described the need to align Myer’s budget targets to its business strategy and complained that “[i]n the first cut budget, whilst I am sure elements of this are calculated, there is not the outcome we require. There does appear to be a need for more confidence to back our strategy”. He later stated “when I look at the numbers on a store basis, the new stores appear to be a profit drag – because of significantly lower than business case sales and higher cannibalisation…[a]gain we seem to be heading too conservative – we are investing heavily in service initiatives, but not backing with sales targets”. Further, in relation to investment in the Myer one program “the numbers we see in the budget really don’t back our plans” and “[t]here is a disconnect between what we are strategising and promoting to our shareholders and our confidence to back the outcome”. He noted that “[f]ollowing on from the last EGM, where it was proposed to issue targets, something we are generally reluctant to do, we now need to move down this path”.

144    Mr Ashby then announced the targets in respect of sales (“current department stores forecast for fy14 is $3118m, budget submission was $3266m, the new target is $3290m”), the MEB mix (“MEB mix forecast for fy14 is 20.7%, the proposed was 21.7%, new target is 22.0%”), MEB first margin (“MEB first margin forecast for FY14 is 72.68%, FY 15 submission is 71.98% - the new target is at FY 14 levels of 72.70%”) and stated that Mt Gravatt and Joondalup needed to generate a certain level of sales from the opening year and that cannibalisation should be no more than a particular level from the two stores. Significantly, so it was said, Mr Ashby stated:

We need 2 years of “clean air” to deliver eps growth. Our Capex and associated opex will have to be moderated to support the future. In each EGM discipline we need to develop financial thought processes that have the shareholder in mind, rather than what is right for that function in isolation.

You will see this in the budget process as we set the business for the next few years.

145    Further, in an email sent at 2.49 pm on 27 March 2014 in response to Mr Ashby, Mr Stapleton said:

What is your expectation regarding the pre-read information for the FY15 budget meeting on 8th April? The planning team sent through to your team last night the monthly splits detail (see attached), but those monthly splits are on the sales number we went through in the February budget meeting, not the below target. It took the planning teams over 2 weeks to build this level of detail so we don’t have the time or bandwidth to go back and do it again. From what I have been able to think of, the options are:

•    present the monthly splits as per what has been built and then talk to where we have identified the difference to the $3,290m ($+24m to current budget proposal)

•    identify exactly where the extra $24m sales growth is coming from and then take a relatively unscientific approach to allocating out the extra $24m across TPC’s and weeks so that when we talk about the detail in the budget meeting at least it adds to the number the company is targeting

In regards to the targets themselves, I have communicated the below note to my GM’s and Darrel and I have spent some time today working on it. If it was easy we would have already put it into the budget but I fully understand why we need to find a way to get these targets.

146    Mr Ashby replied at 9.43 pm on 27 March 2014 stating “thanks Adam appreciate the note. I am comfortable with the first option, talking to where the $24m has been identified”.

147    The applicant pointed out that Mr Ashby’s evidence was that he did not recall following up with Mr Stapleton after this email exchange to discuss with him whether or not the targets that he had set were or were not in fact achievable.

148    Now the applicant said that neither Mr Ashby nor Myer’s senior management team could be criticised for having or expressing their high ambitions for Myer’s FY15 sales, but it said that the ambitious FY15 budget must be considered in its actual business context. Its actual business context included aspirations and desires on the part of the Myer senior management to turn the business around in FY15 which can with the benefit of hindsight be seen to have been overly optimistic and which were ultimately not able to be achieved. Mr Brookes’ short email response “[g]reat note well done!” at 1.31 pm on 27 March 2014 indicates his support for Mr Ashby’s agenda of improvement in FY15 sales and profits, which coincided with his own.

149    According to the applicant, Mr Ashby’s directions given to the senior executives of Myer to produce a FY15 budget showing higher sales and profit numbers had their desired effect.

150    According to the applicant it is also apparent from the draft budget documents that Mr Ashby was explicitly targeting 2015 NPAT growth, which would achieve the earnings per share (EPS) hurdles which applied under the Myer Long Term Incentive Plan (LTIP). It is said that this is made clear by the reference to that consideration in the 14 May 2014 budget document, which refers to targeted NPAT growth of 9%, which is said to be “consistent with past EPS hurdles for LTI (2%-7%) as communicated to shareholders” and also consistent with the sales and NPAT figures, where sales of $3,365m produce NPAT of $113m, being an increase of 9.3% above the then anticipated FY14 NPAT forecast of $103m. It is also consistent with the draft budget document appearing, where 10% earnings per share growth is the target set in the budget, requiring an NPAT target $116m or, in order “to outperform Consensus”, an NPAT target of $120m. Setting a growth target for NPAT was an explicit objective of the FY15 budget.

151    The applicant says that despite the optimism which was expressed in the draft sales and profit targets in the versions of the budget which were prepared in May 2014, Myer’s actual trading performance at that time was not giving any indication that there was likely to be a significant improvement in sales or profits in the near future. In Mr Brookes’ board update for the board meeting in May 2014, he noted that both sales and profits for April 2014 were below the reforecast figures which had previously been given to the Myer board (and therefore necessarily below the original FY14 budget, which had presumably been superseded some time earlier, when the reforecast was prepared). Mr Brookes referred to “a disappointing performance in MEB’s, with sales down $2.8m and the continued sales growth of [the lower margin] concessions up $2.3m”. Mr Brookes also referred to “difficulties in first margin reflecting the changes in the Australian dollar and the change in MEB mix” which was compensated for with lower mark downs. This report was presented to the board at its meeting in New York in May 2014.

152    The applicant says that in relation to the draft of the FY15 budget which was presented to the Myer board in New York in May 2014 Mr Ashby noted in a presentation dated 14 May 2014 that the FY15 budget in its then current draft “highlights market expectations” and “details major initiatives supporting the 5 point plan”. The market expectations include a number of positive and negative sentiments which had been expressed by the various stock market analysts whose reports are there summarised, which were said to be “impacting [the Myer] share price”. Included amongst them, under the heading “Earnings” are the comments: “[e]xpect underlying cost growth to rise ahead of sales growth in FY17 and beyond” (attributed to UBS), “[d]eclining historical EBIT margin trend, concern about outlook for EBIT margin” (unattributed). Later, the draft noted various “Strategies / actions to address Analyst concerns” and noted under the heading “earnings”: “[a]nticipate earnings growth in FY2015”, consistent with the representations which had been made for the past few years by Myer and Mr Brookes in particular.

153    There was an examination of various external market factors which were identified as representing “the challenge” to Myer. The first of these were the consumer sentiment index figures at the time. The Westpac Consumer Sentiment Index, an index followed closely by Myer’s board and senior management, was said to have risen to 99.7 in April, from 99.5 in March. It was also said to have fallen 9.6% since November 2013, when job cuts were announced across several sectors of the Australian economy. The slide notes that an index of 100 indicates that there is an equal number of optimists and pessimists in the marketplace. Various other macro and microeconomic challenges were identified. The budget as presented maintained an NPAT forecast of $113 million, up 9.3% on the then anticipated $103 million NPAT for FY14, and the sales were assumed to be $3,365m, up $198m or 6.2% above the $3,167m of sales then expected to be achieved in FY14.

154    The applicant says that also in this draft budget pack was a summary of the “current consensus” for sales, EBIT and NPAT, showing a Bloomberg consensus for FY15 NPAT of $120m, whereas the Bloomberg average was said to be $112m and the median the same amount. It is unclear from what source those Bloomberg figures derived or what they were understood to mean by Myer’s directors or its senior management.

155    At its meeting in New York on 14 May 2014 the board noted a concern that, after the passage of the Federal Budget on the previous day in Australia, Myer’s sales had declined 2%. This was the low period of consumer sentiment following the first budget of the Liberal Government elected in September 2013. The consumer sentiment index plunged to 92.94 in May 2014 and did not again recover to equilibrium until briefly in February 2015. The index remained subdued throughout the 2015 financial year.

156    In respect of the May 2014 draft budget presented to the board in New York, the applicant says that the minutes record that the proposed sales growth of $198m was “aggressive” and the board acknowledged “that the strategy was currently being developed, and that the budget was being drafted prior to the strategy being completed”. Mr Ashby was asked to “reconsider the draft budget, on the business being conducted in the manner in which it is currently being conducted (without strategy overlay)”.

157    According to the applicant it is not clear how this instruction was carried out by Mr Ashby. The reference to the “aggressive” sales growth of $198m assumed in the budget appears to come from the slides which Mr Ashby presented to the board at its meeting in New York.

158    The FY15 budget remained a work-in-progress at this time.

159    The applicant says that an explanation of the process of development of the FY15 budget during late June 2014 is provided by various emails in evidence where Ms Reid explained to Mr Ashby and Mr Kocovic on 26 June 2014 that the draft of the budget turned an assumed FY15 NPAT of $77 million into $122 million, by the addition of two items of revenue, being fast track initiatives valued at $3 million of NPAT and foreign exchange gains valued at $2 million of NPAT, and $40 million of cost savings, including $11 million by reducing store wages and $8 million by removing the MAIP short term incentive plan allowance of $12 million from the budget. Ms Reid’s email goes on to describe a meeting which Mr Ashby and Mr Kocovic had with Mr Brookes whereby $12 million of costs were then added back into the budget, including $6 million worth of MAIP, which reduced the FY15 budget NPAT to $112 million. The document makes clear that, without the $5 million NPAT value of additional revenues from fast track initiatives and foreign exchange gains and the reduction of the various costs identified, the budgeted NPAT for FY15 was $77 million on an assumed sales base of $3,312m. This is consistent with the figures shown in the contemporaneous version of the draft budget.

160    The applicant says that the final Myer FY15 budget, which was adopted by the Myer board in July 2014, contains the erroneous page 2705 “Where were we in May” which gives the wrong figures for the budget as presented to the board in May. It notes a number of negative matters which had occurred since the May board meeting, including the downturn in consumer sentiment since the 2014 Federal Budget was released. The Westpac Consumer Sentiment Index is identified as having declined 6.5% since May 2014, which had a negative impact on both the sales and the NPAT forecast for FY14. There were also identified a number of profit warnings from other large Australian retail companies on that page.

161    The summary final budget presented assumed sales of $3,325m (an increase of 5.6% over the then FY14 forecast of sales) and NPAT of $107m (a 9% increase over the then forecast $98m NPAT for FY14). The applicant says that it is noteworthy that the final budgeted 9% increase in NPAT was maintained. The applicant says there was a measure of reverse engineering of this budget in order to achieve an NPAT figure which would show growth in NPAT and therefore in earnings per share so as to justify payments to be made to those executives who were eligible under the LTIP. The applicant says that Mr Ashby agreed that there was reverse engineering in the FY15 budget. OGP was budgeted to increase by $95m, with improved margins at each level of the profit assessment, including an improvement of 0.7% in the margin rate at the OGP level.

162    According to the applicant the board adopted this final version of the FY15 budget at its meeting on 16 July 2014. The applicant says that Mr Ashby’s affidavit of 28 November 2017 refers throughout to a later version of the budget dated 13 August 2014 as the final Myer FY15 budget. But this version of the budget appears to have been prepared after the FY14 year end was completed and, according to the applicant, it contains numerous figures which were inconsistent with the figures in the final FY15 budget as actually adopted by the Myer board in July 2014.

163    The applicant says that at its meeting on 13 August 2014, the board was presented with Mr Ashby’s CFO report which presented the provisional financial summary for July 2014 showing substantial declines in all of the profit levels, in particular at the NPAT level, where a decline between FY13 and FY14 of more than $11 million or 28% was recorded, indicating a very significant downturn in the retail sector of the economy following the May 2014 budget. The low level of the Westpac Consumer Sentiment Index is specifically mentioned. According to the applicant, these factors were plainly in the mind of Myer’s directors leading up to the board meeting on 10 September 2014, when consideration was given to the question whether Myer would once again provide explicit profit guidance by way of an NPAT forecast to the market.

164    I have dealt with the applicant’s take on these events, but in my view Myer’s recitation is more accurate, balanced and consistent with the contemporaneous documents.

The FY15 budget – Analysis

165    Planning for the FY15 budget formally commenced around January or February 2014, and involved at the outset of the process a three-day strategy review conducted in mid-February 2014. Following this strategy review, the Merchandise team and the Stores team prepared their submissions separately. But prior to those submissions being received, a preliminary budget forecast was prepared which was based on sales to BGP as presented at the Strategy sessions and the Finance team’s view of costs. This preliminary budget forecast an NPAT of $121m.

166    On 25 March 2014, the draft Merchandise Submission was provided to Mr Ashby. The draft Merchandise Submission included forecast sales of approximately $3,265 million. That forecast was only for sales from the department stores and online business, and did not include Sass & Bide or the free-standing stores. Sass & Bide and the free-standing stores contributed approximately $58 million in additional sales in the FY15 budget. The forecast sales were broken down by TPC, so that a forecast sales figure for each TPC was set out.

167    Around this time the draft of the Stores Submission was also finalised. The Stores Submission forecast sales for FY15 of $3,286 million again also excluding Sass & Bide and free-standing stores. A “reconciliation” sheet in evidence explains that the Stores Submission forecast an increase in sales of $183 million in FY15 compared to FY14, consisting of $93 million for new stores and completed refurbishments net of store closures and ongoing refurbishments, $60 million for merchandise initiatives and $30 million for an online sales increase.

168    By comparison, the Merchandise Submission forecast sales for FY15 of approximately $3,265 million, with the Merchandise Submission forecasting an increase in sales in FY15 compared to FY14 of $157 million, consisting of $67 million for new stores and completed refurbishments net of store closures and ongoing refurbishments, $60 million for merchandise initiatives and $30 million for an online sales increase.

169    The two submissions therefore had a $26 million difference in the assumed impact of new stores.

170    The Merchandise Submission included only a $16m net increase in sales for new stores. This is apparent from the sales waterfall, which includes the following two items:

171    Mr Ashby identified that these sales figures included cannibalisation figures that were incorrect. This was a conclusion independently arrived at by the Stores team, which included different net new stores sales figures in its initial submission.

172    In his email of 26 March 2014, Mr Ashby stated that the Merchandise Submission for new store sales cannibalisation is a “net unacceptable level for mt gravatt and joondalup”, and he requested “realistic sales numbers ASAP”. The applicant argues from this email that Mr Ashby was determined to produce a budget showing substantial sales growth, and was arbitrarily demanding sales figures that had no basis. But I agree with Myer that this overlooks the fact that once the matters Mr Ashby identified were examined it was found that:

(a)    “the sales budget from the merch team didn’t have the correct impacts from new/refurb/closed stores”;

(b)    the Stores team had independently arrived at a net figure for new stores of $40m; and

(c)    it was confirmed in a subsequent email that the merchandise submission “showed incorrect net of cannibalisation numbers”, and the correct overall net number was $41m.

173    The applicant submits that the correct cannibalisation figures for new stores should have led to a net sales increase of only $16m, and that the higher net stores sales figure of $41m included in the budget was simply a product of the directions given to the Myer senior management by Mr Ashby to increase the budgeted sales for FY15. But on the evidence that is not the case.

174    Now the documentary evidence demonstrated that the figure for new stores included in the budget pack sent on 4 April 2014 like that in the merchandise submission sent on 25 March 2014 was incorrect.

175    On 7 April 2014, a further “budget pack” was sent by Mr Maillet to Mr Ashby and others. The covering email noted that “Store refurb/closure/new impacts for FY15 aligned”.

176    Mr Ashby was asked whether he understood that the Merchandise team had considered the new budget pack that was sent on 7 April 2014. He understood that the Merchandise team would have considered this information before it was circulated.

177    The net new store figures being the sales figures for the new stores, and the cannibalisation figures had been altered (“aligned”) from the (incorrect) figures in the February Merchandise document. The result of the alterations is that net sales from the new stores were increased to $40.021 million. That corresponds very closely to the figure of $40 million included in the Store team’s budget submission and the final figure of $41 million included in the budget. Whilst Mr Ashby could not recall specifically who had changed these figures and how, his evidence was that a possibility was that the Merchandise team and Stores team had “now … got together” and compared their numbers. I agree with Myer that it may be inferred that this is what happened, that the low figure adopted by the Merchandise team in its initial submission was an error, and that the final figure of around $40 million was based on the detailed business cases and reflected Myer’s expectations for new stores in FY15.

178    Further, the evidence of Mr Stapleton was that he understood Mr Ashby’s comment about the new stores (Mt Gravatt and Joondalup) containing “significantly lower than business case sales and higher cannibalisation”, as referring to the “business cases” which were prepared for the two new stores, and that he understood him to be saying that the sales figures in the “business case” have not been adopted in the submission of the Merchandise team. Mr Stapleton also noted that, in relation to new stores, Mr Ashby appeared to have had the figures from the original business plan for the opening of the new stores, which did not align with the figures used by the Merchandise team.

179    As to how Mr Sutton’s Stores team arrived at their new stores sales figure of around $40 million, Mr Sutton’s evidence was that this figure was arrived at by considering the business case that had been prepared for the new stores ahead of their opening. Mr Brookes’ evidence was consistent therewith.

180    Subsequent documents confirm that the sales impact for new stores ultimately included in the budget were based on the Approved Business Cases for new, closed and refurbished stores together with latest sales disruption information Property Space Planning for stores under works in FY15.

181    In part based on Mr Ashby’s email in relation to the new stores, and in part by reference to his subsequent email of 27 March 2014 in which he identified targets, the applicant has submitted that, in effect, Mr Ashby imposed his numbers on the business and, implicitly, that those imposed numbers then formed the basis of the FY15 budget, which therefore did not reflect a realistic view as to what the business would achieve, but were simply a product of the directions given to Myer senior management by Mr Ashby. But I agree with Myer that this submission is not sustainable.

182    First, the primary criticism is Mr Ashby’s reference to targeting sales of $3,290m for the department stores business of Myer, without any apparent basis. But in relation to sales, once one corrects the incorrect new stores figures used by the Merchandise team, their sales figure would be $3,291m for the department stores business, which was already higher than Mr Ashby’s figure. Further, the Stores team had independently and through its own detailed process arrived at a sales figure of $3,286m for the department stores business. Further, the sales figure ultimately included in the budget was $3,267m for the department stores business.

183    Second, the applicant also focused on the online sales figure. But in the original merchandise submission the figure for online sales was a net increase of $24m. Mr Ashby identified a target of a net increase of $30m. And the increase ultimately adopted in the budget was $23m. Again, this is not consistent with Mr Ashby having imposed an online sales figure on the Merchandise team.

184    Third, insofar as the Merchandise team lifted its net new stores figure from $16m net to $40m net, that corrected the earlier error in its submission and brought its figures into line with those of the Stores team and as set out in the detailed business cases prepared for the new stores.

185    Fourth, in relation to the MEB mix, the original submission was 21.7%, Mr Ashby identified a target of 22%, and the figure adopted in the budget was 22.07%. Given that a figure of 22% was not adopted, as Myer says, it can be inferred that further work was done on the MEB mix so as to justify this change.

186    Fifth, Mr Stapleton’s evidence in relation to the “sales target” of $3,290 million was that he understood Mr Ashby to be asking the Merchandise team to consider both positive and negative impacts on sales from identified matters to see if the target of sales of $3,290 million was feasible.

187    Sixth, Mr Stapleton’s evidence in relation to the targets generally was that he would have understood these targets to be matters that the Merchandise team should assess to see whether the matters were achievable, and if so, how. Moreover, he did not recall thinking that the targets proposed by Mr Ashby were unrealistic or unlikely to be achieved and did not recall anyone expressing those views to him.

188    Seventh, Mr Stapleton gave evidence that he did not consider that the FY15 budget was unrealistic or unlikely to be achieved, and that he would not have agreed to a budget which he believed was unlikely to be achieved or unrealistic.

189    Eighth, Mr Sutton noted that the first submission from the Stores group had a sales figure of $3,286 million, that this figure was arrived at from the bottom-up process they applied, and that given that Mr Ashby’s target was $3,290 million, this would not have caused him any concern and he was comfortable with this figure. Further, Mr Sutton confirmed that he was not involved in any discussions about what NPAT growth would be targeted for the purposes of ensuring that EPS hurdles were met, and he did not recall any discussion about a desire to outperform consensus or to achieve a particular level of EPS growth.

190    Ninth, in addition to Mr Brookes, Mr Stapleton, Mr Sutton and Mr Ashby, each other member of the EGM had to agree to the budget before it was presented to the board for approval. And the budget would not be submitted to the board until a consensus view had been reached on the issue. The budget was ultimately submitted to the board with the agreement or approval of all of the EGMs. Those EGMs whose work was most important to the figures in the budget (Mr Sutton and Mr Stapleton) said that they would not have agreed to support the budget if they believed it was unrealistic or unachievable.

191    These matters are not consistent with the applicant’s case thesis that Mr Ashby or Mr Brookes imposed a target driven and unrealistic budget on the business.

192    Following receipt of the Merchandise and Stores Submissions, the budget figures were subjected to further discussion and work during April and early May, leading to finalisation of a draft budget to be presented to the board for review and discussion.

193    A draft “Budget pack”, as it stood in May 2014, was provided to the board in advance of the board meeting in New York on 14 May 2014. At the board meeting, Mr Ashby presented a paper called “Myer Holdings Ltd FY15 Budget”. At this stage management’s forecast NPAT for FY15 was $113 million. This figure was arrived at on assumed sales of $3,365m, an OGP margin of 42.06% and CCODB of $1,136m. The document presented by Mr Ashby also included a scenario in which assumed sales were reduced to $3,325m, the OGP margin was reduced to 42.04%, CCODB was reduced to $1,118m, and which retained an NPAT of $113m. The explanation for the scenario is that the scenario allowed for cost investment assuming sales being achieved rather than in advance of growth. That is, if sales were assumed at the lower amount of $3,325m, the anticipated costs investment could be reduced. This scenario was included in part of Mr Ashby’s paper which does not appear to have been formally presented to the directors in New York.

194    On 4 June 2014 Mr Ashby received by email a “budget update” for a meeting that he was to have with Mr Brookes. The budget update/presentation included an NPAT figure of $110 million, and the following other figures:

(a)    total sales of $3,332 million, which was a reduction of $33 million from the sales of $3,365 million in the May draft budget and an increase of $7 million from the sales of $3,325 million in the scenario included in the May presentation;

(b)    CCODB of $1,121 million, which was a reduction of $15 million from the CCODB of $1,136 million in the May draft budget, and an increase of $3 million from the CCODB of $1,118 million in the scenario included in the May presentation;

(c)    an OGP margin of 41.90%, being a reduction from the 42.06% in the May draft budget and the 42.04% in the scenario included in the May presentation.

195    The budget update noted that all costs were based on submissions from the business “as a starting point”, and then listed a number of cost reductions that were adopted as compared to the submissions from the business, in particular $12 million for store wages, $5 million for store expenses, $2 million for IT, $2 million for Omni / Marketing, $2 million for Buying & Supply Chain, $2 million for Finance and $1 million for NSO.

196    Mr Ashby’s evidence was that the reductions or savings in costs were reductions as against the requests or submissions received from different business divisions for the amount of costs that they be permitted to incur for the coming financial year. Further, he said that these savings and initiatives would not have been included in this document unless he considered that they were realistic and achievable. Further, he said that not every option to reduce the cost submissions from the business included for discussion in the document was adopted. Instead, what was adopted were those that were considered realistic and appropriate.

197    Mr Brookes’ evidence was that the figure of $77 million in the reconciliation document was a preliminary figure which had not received any input from the EGM, and which did not have regard to a range of matters that could substantially increase the NPAT.

198    Further, Mr Brookes’ evidence in relation to the cost reductions reflected in this document was that he would not have agreed to those matters being included in the proposed budget unless he considered that they were realistic and achievable.

199    Let me now deal with the question of the form of the approved budget.

200    A final draft budget was presented to the board for approval at a board meeting on 16 July 2014. The key components of the approved budget were as follows:

(a)    forecast sales of $3,325 million, which represented an increase in sales of $176 million (5.6%) from then forecast FY14 sales;

(b)    a forecast OGP margin of 41.86% compared to a then forecast 41.18% in FY14;

(c)    a forecast CCODB of $1,122 million, which represented an increase of $74 million from then forecast FY14 costs; and

(d)    a forecast NPAT of $107 million, compared to $98.5 million in FY14.

201    As Myer points out, it is evident that each of the sales, OGP margin, CCODB and NPAT numbers moved throughout the period when the budget was being prepared. For example, as Myer listed, the changes made between the draft May budget and the approved July budget were as follows:

(a)    forecast sales were reduced from $3,365 million to $3,325 million;

(b)    the OGP margin was reduced (from 42.06% to 41.86%);

(c)    the CCODB was reduced from $1,136 to $1,122 million; and

(d)    NPAT was reduced from $113 million to $107 million.

202    As compared to the scenario in the May budget presentation, the movement was:

(a)    forecast sales steady at $3,325 million;

(b)    the OGP margin was reduced (from 42.04% to 41.86%);

(c)    the CCODB was increased from $1,118 to $1,122 million; and

(d)    NPAT was reduced from $113 million to $107 million.

203    Myer adduced evidence supporting the key assumptions in the budget. The applicant did not adduce any contrary evidence to suggest that these assumptions were unreasonable. What is set out below is Myer’s summary provided to me which I accept.

The increase in sales

204    The sales growth of around $176 million compared to FY14 consisted of a number of identified matters. Those matters can be summarised as follows:

205    First, as to these matters, there were the expected additional sales from the opening of two new stores in FY15, being Mt Gravatt and Joondalup, which stores were forecast to have sales of $50 million or more. Now that figure did not take into account the amount of sales that it was expected these two new stores would take away from existing nearby Myer stores. But this was forecast at $10 million, and was taken into account by Myer in projecting its sales figures for the “same stores” as in FY14. The evidence was that the estimated sales for each new store was based on a large amount of work undertaken over a number of years, including in relation to the “initial business case” for the new stores. Further, the initial business case was prepared mainly by the Property team but also with input from the Merchandise team and the Stores team; the business case was a detailed document that contained information regarding a number of key matters. The business case documents were then “updated” prior to the FY15 budget being finalised.

206    As to how the cannibalisation figures were arrived at, Mr Ashby’s evidence was that analysis was done, including by using information obtained from the Myer One Customer database, to determine the likely impact of the opening of the new stores on surrounding stores. He said that the approach used was an analytical approach that had been used by Myer since before he joined the company, and that based on his experience, he considered that it provided a reasonably reliable estimate of likely sales and cannibalisation.

207    It may be noted that the two new stores were scheduled to open ahead of the key trading season of Christmas/New Year and so Myer would likely have had the benefit of their assistance during that season.

208    Second, there were the expected additional sales following the completion of the redevelopment or refurbishment of a number of stores that would be fully operational again during FY15 being Adelaide, Indooroopilly, Miranda and Macquarie, as well as the completion of the refurbishment of the Melbourne store (Emporium). Adelaide, Indooroopilly, Miranda and Macquarie would all be operational before the key Christmas/New Year trading season. The evidence was that the Property, Stores and Merchandise teams performed a detailed analysis and prepared data regarding the predicted impact of redeveloped and refurbished stores. Having regard to this work, the forecast was for $69 million in additional sales to be achieved. This forecast also had regard to the fact that one store (Warringah) was being refurbished during FY15.

209    Third, the approved FY15 budget took into account the likely effect on sales from the closure during FY15 of the store at Hurstville. This was the only store that operated during FY14 that was expected to close during FY15. The $12 million of sales for the Hurstville store during FY14 were therefore taken into account. In addition, Myer forecast the amount of those sales that would be retained in surrounding Myer stores. Its estimate was $8 million or 65% of those sales. This estimate was based on the detailed work of the Stores, Property and Myer One Teams. This $8 million in increased sales for surrounding stores was taken into account by Myer in projecting its sales figures for the same stores as in FY14.

210    Fourth, the budget assumed growth in online sales of about $40 million in FY15 compared to FY14. The evidence was that this figure was developed primarily by the Online team, and that this took into account a number of matters, the most important of which was that online sales were consistently doubling (year-on-year) within Myer.

211    The work undertaken by Myer also had regard to the extent to which in-store sales may be impacted (cannibalised) by online sales. It was concluded that in-store sales would be cannibalised by approximately $17 million. Accordingly, the net increase in sales based on increased online sales was $23 million. These forecasts were based on a large amount of analysis and modelling.

212    Fifth, a number of merchandise initiatives were predicted to generate increased sales of $37 million. The key merchandise initiatives identified in the budget, and addressed in the evidence, were the introduction of new brands, the extension of existing brands, development of MEBs on more of a “design led” basis, the introduction of “Giftorium” which was a dedicated area in each Myer store that contained products that were suggested Christmas gifts, and the launch of Myer’s new branding (“Find Wonderful”) which was expected to assist sales.

213    Sixth, the trial of three free-standing stores was expected to deliver sales of $2.5 million in FY15.

214    Seventh, Myer expected increased sales of $9 million for the Sass & Bide brand.

215    As a cross-check or validation on the numbers arrived at, Myer then analysed its forecast sales on a “comparable sales” basis. This involved Myer comparing the forecast sales for FY15 to the sales generated by the same stores that operated in FY14 (i.e. ignoring new stores, refurbishment effects etc.). The result of this comparison was that the budget of $176 million in sales growth involved comparable sales growth of about 1% from FY14. Mr Ashby’s evidence was that based on his experience such sales growth was achievable. Further, comparable sales growth in FY14 compared to FY13 was 1.2%, and so the assumed comparable sales growth in FY15 was less than in FY14.

The improved OGP margin

216    The budget projected an increase in OGP margin from 41.19% in FY14 to 41.86% in FY15. Two factors were most relevant to the expected improvement in the OGP margin.

217    The first factor was changes in the sales mix, and more specifically an increase in MEBs as a proportion of sales from 20.29% of sales to 22% of sales. The evidence was that in the years prior to FY15 Myer had experienced growth in MEB sales greater than 1%, and Myer had in FY14 invested additional funds in MEBs in the areas of new developments and new designs, designers and product ranges, which would support the anticipated growth. In light of these strategies and historical growth, Mr Brookes considered the assumed growth in MEBs to be reasonable.

218    The second factor was a decrease in anticipated markdowns from 9.3% to 8.9% of total sales. These anticipated markdowns were estimated by the Merchandise team. The evidence in relation to markdowns was that the reduction in FY15 was supported by various new initiatives, including planners within the business being given an increased role in buying and planning decisions, Myer becoming more aggressive on entry price points for private label brands rather than relying on markdowns, an overall reduction in the range of products, plans to be less reliant on promotions, which would thereby reduce promotional markdowns, and Myer’s buying cycle being reviewed more frequently rather than once a season, giving less markdowns.

CCODB

219    The estimate of the CCODB used in the budget was $1,122 million, being an increase of $74 million on the CCODB from FY14. Of this amount, about 3% related to “underlying costs”, whilst $35 to $50 million related to other matters (Other Costs). These Other Costs were included in the budget toward the top end of the contemplated range. Examples of the Other Costs include matters such as MAIP and CEO One Time Costs. The evidence was that these costs were largely discretionary or were largely dependent on Myer achieving its forecast financial metrics (including earnings targets). Therefore, if performance of the business was worse than projected, then costs could be removed from the MAIP and CEO One Time Costs relatively easily.

Forecast NPAT

220    The forecast NPAT was materially dictated by the result of the forecasted figures in relation to sales, OGP margin and CCODB. The following points may be noted.

221    First, the applicant does not allege that any particular aspect of Myer’s forecast of sales for FY15 was unreasonable, for example, that forecast sales for new stores was unreasonable or not based on reasonable grounds, or that the forecast increased sales from refurbished stores was unreasonable or not based on reasonable grounds.

222    Second, the applicant does not allege that the forecast OGP margin was unreasonable or not properly based. Further, it has adduced no evidence to the effect that the forecast OGP margin for FY15 was unreasonable or not properly based or that the forecast for MEB growth and/or for a decrease in markdowns was unreasonable.

223    Third, the applicant does not allege that the forecast figure for CCODB was unreasonable or not properly based. Further, it has adduced no evidence to the effect that the forecast of CCODB for FY15 was unreasonable or not properly based.

224    In summary, Myer’s evidence has set out what its forecasts were in relation to each of these matters, and provides detail as to how the forecasts were arrived at. I am not in doubt that more than sufficient cogent evidence was adduced by Myer to support a reasonable basis for each of these aspects of the budget.

Events after approval of the FY15 budget and before the 11 September 2014 representation

225    Now the applicant has focused on the period between the approval of the FY15 budget on 16 July 2014 and when Mr Brookes made his comments on 11 September 2014.

226    On the applicant’s case, as a result of what occurred during this period, Myer through not only Mr Brookes and Mr Ashby but also its directors knew that its budget was unrealistic, and had determined that a realistic NPAT was in fact only $73 million.

227    I would say now that I reject this aspect of the applicant’s case. But let me go into some detail.

228    The applicant relies on several specific matters during this period.

229    The first matter pointed to by the applicant is that after approval of the FY15 budget on 16 July 2014, Myer continued to model profit scenarios that were inconsistent with that budget. The applicant relied in particular on two documents. Those two documents were an email from Ms Reid to Mr Ashby dated 4 September 2014, and the attachment to that email which modelled various scenarios for FY15. Let me set out both of these documents.

230    The email said the following:

Hi Mark,

As discussed with Davina / Olivia, attached are various npat scenarios for FY15 using comments in the release document:

•    scenario 1 – using all comments in the release document, including ebit guidance

•    scenario 2 – using all comments, but provide no ebit guidance

•    scenario 3 – assumes a larger improvment in OGP than in scenarios 1 & 2

•    scenario 4 – assumes sales growth of $100m (+3.2%)

•    scenario 5 – more moderate sales growth of $85m (+2.7%)

•    scenario 6 – assumes no sales growth

npat in the various scenarios ranges from $73m (scenario 6) up to $123m (scenario 3).

Can we discuss when you have a minute.

231    The NPAT scenarios were the following:

232    But Mr Ashby’s evidence was that Ms Reid was modelling what NPAT figures analysts might create for FY15 based on the documents Myer released to the market concerning its full year results for FY14. Accordingly, the scenarios that Ms Reid had created were not modelling Myer’s views on what its NPAT might be for FY15. That evidence is consistent with the document. Further, in no realistic scenario was Myer forecasting that there would be no sales growth in FY15, which was the modelled scenario giving rise to NPAT of $73 million. And I agree with Myer that that would, on any view, have been an odd assumption given the significant additional sales anticipated from the new and refurbished stores. In my view there is no substance to the applicant’s assertions relying upon these two documents.

233    The second matter relied on by the applicant was that Myer’s board had received a document titled “Guidance issues for discussion” prior to 10 September 2014 circulated by Mr Brookes which concerned the issue of whether Myer should provide profit guidance to the market. This document stated that sales were very hard to predict and NPAT was hard to forecast given the fickle nature of the consumer market. It was also noted that Myer (through the board) removed reference to a forecast NPAT increase from the draft documents provided to it. From this, the applicant said that it may be inferred that the board was aware that Myer’s FY15 budget was in doubt and/or unlikely to be achieved.

234    Let me set out this document:

235    Now the document headed “Guidance issues for discussion” provides a number of arguments for and against providing guidance in relation to both sales and NPAT. It was sent from Mr Brookes to the board under cover of an email which said: “Davina [Gunn] has put together, to assist our thoughts, a one page document that puts forward some pluses and minuses [to giving guidance]”. But there is no sound basis to draw an inference that the reason for not issuing guidance was the specific “arguments against”, being that sales are very hard to predict and NPAT is hard to forecast. And even if that inference was to be drawn, the applicant then relies on the drawing of a further inference that because sales and NPAT are hard to predict/forecast, the board was aware that the budget was in doubt and/or unlikely to be achieved. In my view such reasoning involves to say the least a non sequitur.

236    But in any event, Mr Brookes said that he did not consider the FY15 budget to be in doubt or unlikely to be achieved, and he did not recall any other board member expressing such a view. That evidence was not successfully challenged in cross-examination.

237    Further, Mr McClintock said that each of the matters in the “Arguments against” column in the document was discussed and considered as relevant to the decision not to provide NPAT guidance in the ASX Release, but that he was not thinking about the budget in the context of that document.

238    Further, other directors gave evidence that:

(a)    none of them specifically recalled the document or discussions in relation to it; and

(b)    none of them recalled thinking that the FY15 budget was unrealistic or was unlikely to be achieved, or that it was in significant doubt.

239    Further, they gave evidence that the fact that the trading results for August 2014 were behind budget would not have caused them to form the view that the budget was unrealistic or unlikely to be achieved, or that it was in significant doubt. The reason for this is the relative insignificance of August results to the full year results given it was one of the less significant trading months.

240    Now the applicant has referred to the August FY15 results, which were available prior to 11 September 2014, which results showed that sales, OGP margin and NPAT were all behind budget. These were presented at a board meeting on 10 September 2014. But as I say, Myer’s witnesses did not consider that the fact that results in August were behind budget was a reason for considering that Myer could not achieve the FY15 budget figures, including in relation to sales and NPAT.

241    The applicant has also referred to the sales results for the first six weeks of FY15, which included the first two weeks of September. But the significance which the applicant seeks to place on the limited results in August and early September as leading to an inference that Myer held a view that its FY15 budget should be abandoned and that it expected a far lesser NPAT for the year, particularly an NPAT materially below $98.5 million, was not made out on the evidence.

242    In my view, Myer’s witnesses cogently emphasised the importance of the key trading season of Christmas/New Year to its full year results, especially as compared to the relatively insignificant months of August and September. In particular, Mr Ashby gave evidence that sales and profit during Q1 (August – October) had historically not provided a clear or reliable guide for performance for the remainder of the year due to its relatively small size. Mr Brookes also gave evidence that a “1% movement in sales in December or January could make a huge difference to the end NPAT results, whereas missing sales budget’s [sic] in the early part of the year would not make much difference to NPAT”.

243    Relatedly, August and early September were relatively insignificant to the overall result for a financial year. Q2 in FY14 generated 87.6% of NPAT for FY14, Q4 generated 33.6% of NPAT and Q1 and Q3 generated losses.

244    Further, for FY15, August was budgeted to generate a loss of $10.5 million from sales of $190.1 million. By contrast, December was budgeted to generate NPAT of $61 million from sales of $567.9 million.

245    On 10 September 2014, a board meeting was held.

246    At this meeting, Mr Brookes gave the following update:

August Result

Sales in August were $180.5m down $9.6m on budget. Operating Gross Profit was $72.2m down $6.9m and cost of doing business was $84.5 some $700k less than budget.

As such our Net profit loss was $14.8m which was $4.2m worse than budget.

The result was driven by mix issues with concessions up 96 basis points on budget, an impact on First Margin from the fall-out in sales and higher than budgeted markdowns, particularly in National Brands.

This is a disappointing start to the year, particularly as the first week was particularly strong. The issue is not necessarily the operating gross profit or the cost of doing business, but rather a deterioration in sales.

Whereas we saw a very strong July and first week in August that started the season well; recent weeks have seen disappointing sales which will result in us needing to step up markdown promotional activity to drive topline sales.

This puts us “behind the eight ball” already and will require, even more so, everything at Christmas (including Giftorium) and Stocktake sale to overperform.

247    The board minutes noted the following:

3. Chief Executive Officer’s Report

The Board noted the CEO’s report and BB spoke to the report.

•    August was a difficult month, with sales down $9.6m on budget, resulting in a disappointing start to the year; there will be added pressure for Christmas, including Giftorium, and Stocktake Sale to perform well;

•    The Board discussed trading in general; recent weeks have traded better;

…

4. Chief Financial Officer’s Report

The Chief Financial Officer’s Report was taken as read. The Board noted that:

•    August sales were $180.5m, $9.6m (5.1%) below budget and $4.3m (2.3%) below last year. Comparative sales were down 1.42%;

•    Results for the month against budget and last year were impacted by the planned issuance of the quarterly mailer containing the MYER One reward cards on August 18 this year to coincide with the ten year anniversary of the MYER One Reward Program, compared to August 8 last year, with impact to sales circa $4.0m;

•    Operating Gross Profit was $72.2m, $6.9m below budget and $728k below last year;

•    NPAT was a loss $14.8m, $4.2m (40.08%) below budget and $2.3m (18.00%) below last year;

•    MEB mix was 19.51% v last year 18.74% and budget 20.04%;

•    Online sales were $3.1 m v $1,4m last year and budget $3.9m;

•    Stock turns for department stores were 3.55 v last year 3.46.

5. Audit, Finance & Risk Committee Update

The Chair of the Audit, Finance & Risk Committee (AB) reported on the meeting held the previous day on Tuesday 9 September 2014.

The main objective of that meeting had been to review the Appendix 4E and accounts. The main areas of judgement and the significant issues that needed to be brought to the attention of the Committee had been discussed. The auditors (PricewaterhouseCoopers) were in attendance and reported to the Committee on their investigations.

…

8. ASX, Press Release and Analysts Presentation for Full Year FY14 Statutory Accounts

The Board considered the draft ASX Press Release and Analysts Presentation in detail.

The Board read through each page of the proposed ASX Release and Analysts Presentation. The Board provided input and comments on the draft ASX Release and Presentation.

The Board resolved to approve the draft ASX Release and Analysts Presentation as amended subject to the accounts being finalised first.

248    I should note that prior to the board meeting, on 7 September 2014 Mr Brookes sent an email to the directors in the following terms:

We will have a discussion in regard to Guidance as part of our results announcements for next week. As you may have noticed the results announcement has two alternatives. One with guidance and one with a more general comment regarding the performance. Davina has put together, to assist our thoughts, a one page document that puts forward some pluses and minuses.

Mark and I really look forward to Board’s input on this important topic.

249    Ultimately the ASX release excised reference to an NPAT forecast. I will return to this in more detail in the next section.

General

250    Now the applicant says that based upon Myer knowing that the FY15 budget was unrealistic and unlikely to be achieved at the time it was presented and approved by the board and events that occurred after the budget was approved and prior to 11 September 2014, Myer knew a number of key matters. This allegation is set out in paragraph (a)(xxvii) of the applicant’s particulars of knowledge, which provides:

The Applicant provides the following particulars of the allegation in paragraph 21 of the Statement of Claim that the Respondent had knowledge of the matters alleged in paragraphs 19(b) – (e) by 11 November 2014 at the latest.

The Respondent was aware of information about the earnings forecast matter which is alleged in paragraph 19 of the Statement of Claim on the following dates:

(a)    11 September 2014, by which date the Respondent knew through its officers who are identified below that:

…

xxvii.    as a result of these matters it is reasonable to infer that the Respondent (through those of its officers who are identified above) knew that:

1.    the Respondent’s FY15 budget was unrealistic and was unlikely to be achieved, or at least was in significant doubt;

2.    due to the Respondent’s poor sales in the first six weeks of FY15, the Respondent could not reliably “anticipate delivering sales growth in FY2015”, as was announced to the market by the CEO, Mr Brookes, on 11 September 2014;

3.    the Respondent was not achieving “modest growth in the operating gross profit margin driven by improved sourcing and the mix benefit from the growth in Myer Exclusive Brands” and therefore had no reliable basis to anticipate this growth, as was also announced to the market on 11 September 2014;

4.    the Respondent was achieving actual sales in FY15 which were below those achieved in FY14, and sales at this level were consistent with achieving an NPAT of only $73m in FY15;

5.    the Respondent’s forecast of 3% growth in CCODB in FY15 announced on 11 September 2014 was dependent on aggressive and unidentified savings; and

6.    the Respondent had determined internally that a realistic NPAT forecast for FY15 was $73m,

such that upon the release of the Respondent’s results on 11 September 2014 and the Respondent’s CEO’s statements in the “Preliminary 2014 Myer Holdings Ltd Earnings Call” the Respondent came under an obligation on the basis of its knowledge of its actual and its likely FY15 performance to disclose each of the matters alleged in paragraph 19 of the Statement of Claim;

251    But in relation to the specific matters set out in paragraph (a)(xxvii), the directors each gave evidence that they did not hold, or do not recall holding, the views which it is alleged they held. Further, in their evidence they provided context or an explanation as to why the matters relied on by the applicant were not known to them or were not relevant.

252    Further, each director said that he or she would not have approved the FY15 budget if they believed it was unrealistic, unlikely to be achieved or in significant doubt of being achieved, and nothing that occurred prior to 10 September 2014 altered their view.

253    Further, as I have said, the first six weeks or early period of trading for a year provided little indication of the total sales that Myer would achieve for the entire year. For that reason, the directors did not believe that the results in the months of August and September would have caused them to form a view that the FY15 budget was unrealistic or unlikely to be achieved, or that it was in significant doubt.

254    Further, the directors did not believe they would have approved the FY15 budget unless they were satisfied the OGP margin was likely to increase, and sales results in the early part of the year would not have altered their view.

255    Further, it was far too early in the year to think that Myer would achieve an NPAT materially less than budget.

256    Further, the directors did not recall being presented with an NPAT of $73 million, let alone one that they considered to be realistic.

257    In my view, the clear position on largely uncontested evidence is that Myer through its senior management and each of its directors was of the view and had reasonable grounds for the view that its NPAT in FY15 would be greater than $98.5 million. Mr Brookes “believed that the budget presented to the Board for approval at the July 2014 Board meeting was realistic and achievable”. Mr Ashby considered that the process undertaken to arrive at the budget provided an acceptable degree of confidence as to the likely performance of the business, and believed that it was realistic and achievable. Further, each of the directors gave evidence to the effect that they would not have approved the budget unless they considered it to be reasonable.

258    In summary, none of the directors had formed the view by 11 September 2014 that the figures in the budget would not be achieved. Further none of the directors had formed the view by 11 September 2014 that NPAT in FY15 would not be greater than $98.5 million.

259    Further, on the evidence, none of the directors ought to have formed such a view.

260    Before proceeding to the events of 11 September 2014, I should say something on the question of guidance.

Myer’s explicit profit guidance by ASX announcements made prior to 2014

261    Following its IPO in November 2009, Myer provided regular explicit profit forecasts and profit guidance updates by way of formal ASX announcements to the market between September 2010 (for FY11) and 2012 (for FY13). Making these formal ASX profit forecasts proved to be a difficult exercise for Myer, because its sales were flat and its profits were in continuous decline throughout this period. Myer reported sales of $3,159m in FY11, $3,119m in FY12 and $3,145m in FY13. It earned NPAT of $163m in FY11, $141m in FY12 and $130m in FY13. Because it had made explicit profit forecasts and gave explicit profit guidance in these years, Myer recognised that it had a responsibility to update the market as to its current profit expectations at regular intervals, as can be seen from the ASX announcements which Myer made between September 2010 and September 2012. Myer made a total of eleven profit guidance announcements during this period seven of which confirmed existing guidance. Significantly, it made announcements whenever it recognised that its expectations for profit had declined by 5% to 10% from its previous announcement, for example the announcements made on 7 February 2011 and 23 May 2012. This is consistent with the guidance-to-expectation thresholds referred to by a number of the Myer directors in their evidence and it is also consistent with the advice given in ASX Guidance Note 8.

262    The Guidance Note as at 1 January 2014 provides that whilst “ASX does not consider it appropriate to lay down any general rule of thumb or percentage guidelines on when a difference in earnings compared to market expectations ought to be considered to be market sensitive and therefore disclosed under Listing Rule 3.1”, ASX goes on to suggest that a variance to guidance equal to or in excess of 10% is material and creates a presumption that guidance needs updating and a variance of less than 5% is not material and does not create a presumption that guidance needs updating. ASX goes on to suggest that “[w]here the expected variation in earnings compared to its published earnings guidance is between 5% and 10%, the entity needs to form a judgment as to whether or not it is material” before concluding that “[t]he mere fact that an entity may expect its earnings to differ from its published guidance by more (or less) than a particular percentage will not necessarily mean that its guidance is (or is not) misleading”.

263    Following this initial period of giving explicit profit guidance to the market between 2010 and 2012, in the ASX announcement of its FY12 results made on 13 September 2012, Myer announced that it would cease its practice of giving profit guidance and would not provide any sales or profit guidance to the market for FY13. Myer explained the reason for this decision as being that “[t]he outlook is uncertain due to a continued tough retailing environment and subdued consumer confidence”.

264    Myer did not thereafter make any ASX announcements giving explicit profit forecasts or guidance, including in respect of FY15, until 19 March 2015 when it announced another unexpected downgrade.

265    Now there appears to have been a debate at the time concerning whether Myer should once again give explicit profit guidance for FY15.

266    Mr Brookes was keen in 2014 that Myer should return to its practice in the era 2010 to 2012, when it gave explicit profit guidance to the market prior to the commencement of each financial year. In an email to Ms Olivia Reeve, Ms Davina Gunn, Mr Ashby and others of 18 August 2014, Mr Brookes commented upon a draft ASX release in respect of the FY14 results announcement and stated a number of things which he wanted to announce to the market including:

•    In our expectations in regard to improved performance and profitability we should spell out the word now positioned the business and specifically our store network and online operating platform.

•    In our opening couple of lines we should specify that we see a return to sales and profit in this year.

…

•    Finally, I would propose that we do look at a debate on guidance, my thoughts would be a line that says we expect sales to grow between 2% and 4% and net profit to grow greater than 5% this year.

267    As I have said, Mr Brookes presented his August board update at the 10 September 2014 board meeting. Mr Brookes advised the board that Myer’s sales in August 2014 were down $9.6m against the budget, OGP was down $6.9m and the NPAT loss was $14.8m.

268    Further, as I have already said, shortly prior to the September 2014 board meeting Mr Brookes had circulated to the members of the board a document entitled “Guidance Issues for Discussion”, which spelt out various arguments for and against Myer giving explicit guidance to the market in respect of its anticipated sales and NPAT for FY15.

269    Myer appears to have been concerned about the possibility that analysts’ expectations might exceed Myer’s internal NPAT forecast as disclosed in the FY15 budget, and there might be a need for Myer to manage the analysts’, and therefore the market’s, FY15 NPAT expectations, downwards.

270    All of the Myer directors except Mr Brookes were clear in their evidence that the board had resolved not to give any explicit profit guidance in the form suggested in the draft release which was considered by the board at its meeting on 10 September 2014. The minutes of the board meeting simply record that the board read through each page of the proposed ASX release and analysts’ presentation, provided input and comments on the drafts and resolved to approve the draft release and analysts’ presentation “as amended subject to the accounts being finalised first”.

271    The announcement as made to the ASX, consistently with the non-executive directors’ evidence and the board minutes, omits any reference to a forecast improvement in FY15 NPAT, stating only that Myer “anticipates delivering sales growth in FY15” driven by a number of identified factors, “[w]e anticipate modest growth in the operating gross profit margin” and “we anticipate the underlying cash cost of doing business will increase by approximately three percent”.

272    I will return to this question later.

273    Before turning to 11 September 2014, let me deal with two other matters.

The desire to turn the business around in FY15 and Myer’s previously stated optimism

274    The applicant says, which I accept, that Myer had for some time expressed optimism about FY15 as being a turnaround year for Myer. From this foundation it submits that these previous statements motivated Mr Brookes in September 2014 to make a statement which he did not consider to be justified in relation to increased NPAT. But the fact that Myer had anticipated for some period of time that FY15 would see improved results compared to FY13 and FY14 supports, rather than detracts from, the reasonableness of the FY15 budget and Mr Brookes’ expectation. It demonstrates that the strategic initiatives that were expected to generate increased sales had been planned and developed over an extended period of time.

275    Now as to these initiatives, the applicant contended that there was nothing special about FY15 in terms of new store openings and refurbishments, and that new stores open every year. But Mr Ashby’s evidence was that there was something special about FY15. This is borne out by the documents.

276    The FY13 budget shows that the net position based on new stores / store closures was an increase in sales of $38 million. This can be seen from the sales waterfall, which records $53 million of sales for three new stores (Fountain Gate, Townsville and Mackay), with a loss of $15 million in sales from the closure of Forest Hill and Tuggeranong. It is also recorded that $19 million in sales will be lost due to refurbishments. Therefore, the position as a result of new stores / closed stores / refurbishments for FY13 was anticipated to be a sales increase of $19 million.

277    The FY14 budget shows that the net position based on new stores / store closures / refurbishments was a decrease in sales of $5 million. This can be seen from the sales waterfall, which records $26 million of sales from three new stores (Shellharbour, Fountain Gate and Townsville), with a loss of $15 million from the closure of Fremantle and Elizabeth. It is also recorded that $16 million will be lost due to refurbishment. Therefore, the position as a result of new stores / closed stores / refurbishments for FY14 was anticipated to be a sales decrease of $5 million.

278    Contrastingly, the FY15 budget shows that the net position based on new stores / store closures was an increase in sales of $38 million, with a further $69 million in increased sales anticipated as a result of store refurbishments, meaning that the result of new stores / closed stores / refurbishments for FY15 was anticipated to be a sales increase of over $100 million.

279    Therefore, the result of store openings (new stores and refurbishments) in FY15 was significantly different to preceding years.

280    Further, management did expect Myer’s performance in FY15 to represent a turnaround on FY13 and FY14 for the reasons that they identified in their evidence.

281    Further, the applicant seeks to characterise the turnaround of results in FY15 as being no more than an aspiration or a desire. Plainly Myer desired such a result. But it had put in place significant underlying initiatives and plans which made the expectation of such a turnaround reasonable.

282    Further, Myer had plans or targets for growth in the years preceding FY15 as well. For example, Myer had a strategic plan for 6.1% sales growth in FY14. Yet, when it came to its budget for FY14, it only included a forecast of sales growth of 1.9%. For example, sales in FY13 were $3,145m, and the FY14 budget forecast sales of $3,205m. Similarly, Myer’s strategic plan was for NPAT in FY14 to be only a -0.7% decrease on FY13. However, in the FY14 budget the forecast decline in NPAT was much higher, at -6.9%. Myer analysed and considered those figures and arrived at what it considered to be a reasonable forecast. Further, the strategic plans of Myer showed a desired NPAT growth of 17.5% in FY15; yet, the forecast NPAT growth included in the FY15 budget was only around 9%.

Targeting of NPAT growth and EPS hurdles

283    The applicant submits that Mr Ashby was explicitly targeting 2015 NPAT growth, which would achieve the earnings per share (EPS) hurdles which applied under the LTIP. It submitted that it was clear that there was a measure of reverse engineering in this budget in order to achieve an NPAT figure which would show growth in NPAT and therefore earnings per share so as to justify payments to be made to those executives who were eligible under the LTIP. But as Myer points out, there are difficulties with such a submission.

284    First, the 9% growth does not correspond to past EPS hurdles, which were in the range of NPAT growth of 2 to 7%.

285    Second, the applicant’s proposition must be that executives would become entitled to bonus payments under the LTIP simply because the budget forecasted a certain level of NPAT growth and irrespective of actual performance and whether that growth was in fact achieved. This is problematic to say the least.

286    Third, Myer’s “target” in its internal plans was for NPAT growth of 17.5% in FY15. If it was to reverse engineer the budget to reach a particular NPAT result, it is unclear why it would have chosen the 9% figure rather than its stated target of 17.5%.

287    Fourth, if the concern of executives was to put in place a budget that would increase their personal remuneration (through bonuses), then the incentive was in fact for them to set a lower budget, which would make it easier for them to receive their bonus payments under the MAIP scheme. Indeed, for Mr Brookes his MAIP payments were entirely dependent on sales and earnings measured as against the budget, and for Mr Ashby 80% of his MAIP payments were dependent on sales and earnings measured as against the budget.

288    In my view, the applicant’s submission that the budget was not an assessment of realistically achievable performance of the business is largely built on the foundation of the erroneous submission that the budget was reverse engineered to achieve certain EPS hurdles so as to justify executives being paid LTIP payments.

289    Further, its submission that the budget was not an assessment of realistically achievable performance is also advanced by reference to internal Myer documents which refer in slides which set out drafts of the budget, to “market expectations” and analysts’ criticisms, and by reference to references by management to the fact that the budget should reflect, or be aligned to, “the strategy” of the business.

290    But that senior management considered that the budget should reflect, or be aligned to, the strategy of the business is hardly surprising. The strategy of the business had been developed over time, with oversight and input from the board, and was backed by investment by the business. So, by way of practical example, part of the strategy of the business was to open certain new stores. Investments were made to open those new stores, with the expected result of this investment (increased net sales for the business) being developed in detailed business cases associated with the opening of the new stores. If Myer was to develop a budget that ignored its strategy (and, therefore, the realities of its business), and the increased sales expected from these new stores, then the budget would not reflect, or be aligned to, the strategy of the business. In turn, the budget would not be a realistic forecast of the expected performance of the business.

291    As to the reference in internal documents to “market expectations” and the views of analysts, Mr Ashby was asked questions about references in documents to analysts’ views as well as matters such as EPS. His evidence was that whilst regard would be had to such matters, and while (unsurprisingly) it was a desire of Myer to achieve EPS growth and respond to analysts’ criticisms that were placing pressure on the share price, it was not a process whereby the figures in the budget would be constructed so as to meet some pre-conceived targets (and independently of whether they were realistic).

292    As Mr Brookes explained: “The objective of management and the board is to try and enhance the return for our shareholders, and so, therefore, we provide a budgeting process that’s robust to give us an accurate budget that can be supported and backed with the alternate – with the final motive to provide a better return for our shareholders”. Mr Brookes’ evidence was that he did not recall any discussion about the need or intention or desire to produce a certain EPS growth.

293    Further, that references to market expectations and the like would be included in material sent to the board is not surprising. As Mr McClintock explained, the budget would be built from the “bottom-up”, and at the end of that process the board would want to know whether the result forecast by the budget was likely to meet the expectations of shareholders and analysts. In this regard it was relevant information which the board wished to see.

294    Further, that the budget was not reverse engineered to meet some result (independently of the actual expected performance of the business) is demonstrated by the detailed evidence as to how the various key assumptions in the budget were arrived at.

295    Further, the evidence of the directors was that the budget was not target based in the sense of a top-down “target” number being imposed.

296    Let me now turn to 11 September 2014.

11 TO 30 SEPTEMBER 2014 EVENTS

(a)    The 11 September 2014 representation

297    On 11 September 2014, Myer issued an ASX and media release dealing with its full year results for the year ending 26 July 2014. In relation to the ASX release, little guidance was given concerning FY15. The following was said:

“Myer is positioned to deliver an anticipated improvement in sales in FY2015 benefiting from the recently refurbished stores at Adelaide and Indooroopilly, expansion of our flagship Melbourne City store, the imminent launch of two new stores at Mt Gravatt (October 2014) and Joondalup (November 2014) and the completion of refurbishments at Macquarie (October 2014) and Miranda (November 2014).

“We expect continued online sales growth, and a positive customer response to several exciting new brands including Alex Perry and L Lisa Ho and a strengthened menswear offer with the introduction of brands such as M.J. Bale, Herringbone and Scotch & Soda.

“We look forward to leveraging the valuable insights and experience of our recently strengthened leadership team as we continue to evolve our strategy and deliver improved shareholder value,” said Mr Brookes.

298    The following was also said concerning the outlook:

OUTLOOK

As we move into FY2015 we anticipate realising the benefits from recent investments and a number of strategic initiatives. We see this as a time of opportunity and will continue to invest to position Myer at the forefront of a rapidly changing retail environment.

The business anticipates delivering sales growth in FY2015 driven by:

•    Full benefit of refurbished Adelaide (SA) and Indooroopilly (QLD) stores following completion of major refurbishments in May 2014 and June 2014 respectively as well as the opening of additional space at our Melbourne City (VIC) store in late May 2014;

•    Opening of two new stores before Christmas, (Mt Gravatt (QLD) and Joondalup (WA)). This will be partly offset by the annualised impact of the Dandenong (VIC) and Elizabeth (SA) store closures and the closure of our Hurstville (NSW) store scheduled for early 2015;

•    Completion of the remaining two major store refurbishments (Miranda (NSW) and Macquarie (NSW)) in part offset by a major refurbishment at our Warringah (NSW) store;

•    Continued growth of the online business supported by enhanced customer experience achieved through improved website functionality, content, and lower-cost fulfilment, as well as a number of initiatives including ‘Click & Collect’ in all stores and the roll-out of 1,400 iPads to stores which provides customers with a significantly expanded product range;

•    New partnerships with Australian designer brands such as Alex Perry, by Johnny, M.J. Bale as well as continued growth in sass & bide, Myer Exclusive Brands, and other national and international new brands; and

•    Significant new Christmas merchandise and marketing strategies.

We anticipate modest growth in the operating gross profit margin driven by improved sourcing and the mix benefit from the growth in Myer Exclusive Brands, offset by lower average exchange rates.

We are committed to investing in the business in FY2015 and we anticipate the underlying cash cost of doing business will increase by approximately three percent.

We are also planning to invest between $35 and $50 million, dependent on business performance, to focus on:

•    Accelerating the delivery of our omni-channel strategy;

•    Investing in our people including enhanced training and development, strengthened leadership, performance-based reward and recognition, and increased frontline management in stores;

•    Optimising the Myer Exclusive Brands strategy;

•    Customer service innovation; and

•    Refreshing the Myer brand.

These investments are important to delivering the operational improvements and capabilities required to underpin long-term, sustainable growth.

Strong cash generation is expected to strengthen our balance sheet and support capital investment in the business of approximately $80 million (gross).

The recent strengthening of the leadership team including the appointments of Daniel Bracken as Chief Merchandise and Marketing Officer, Richard Umbers as Chief Information and Supply Chain Officer, and Gary Williams as Executive General Manager Strategic Planning and Business Development is expected to contribute to the evolution of our strategy.

(Emphasis added.)

299    But nothing was said concerning NPAT. I note that an earlier draft had said “[Whilst some recent cost growth pressures such as labour will begin to moderate, the continuation of investment for future growth is expected to result in a flat FY2015 EBIT margin against FY2014, and assuming no significant change in market conditions, FY2015 NPAT growth in the vicinity of 5 percent]” but this had been removed.

300    There then occurred an analysts briefing at 10.00 am (Melbourne time) which involved a slide presentation. The briefing was webcast. One slide stated:

FY2015 outlook

•    Anticipate sales growth

•    Modest growth in operating gross profit margin driven by:

•    Improved sourcing

•    Mix benefit of Myer Exclusive Brands growth

•    Offset by lower average exchange rate

•    Committed to investing in the business

•    Strong cash generation expected to:

•    Strengthen balance sheet

•    Support capital investment of approximately $80 million

•    Recent strengthening of the leadership team expected to contribute to the evolution of our strategy

“Investments are important to delivering operational improvements and capabilities required to underpin long-term growth”

301    The reference to profit growth in the draft had been removed. An earlier draft had bracketed “[FY2015NPAT growth in vicinity of 5 percent]”.

302    There was also a disclaimer in both the ASX release and the slides in the following terms:

All numbers are unaudited. The financial information includes non-IFRS information which has not been specifically audited in accordance with Australian Accounting Standards but has been extracted from the Preliminary Full-Year Financial Report (Appendix 4E). This release may contain “forward-looking statements”. Forward-looking statements can generally be identified by the use of words such as “may”, “will”, “expect”, “intend”, “plan”, “estimate”, “anticipate”, “believe”, “continue”, “objectives”, “outlook”, “guidance” and similar expressions. Indications of plans, strategies and objectives of management, sales and financial performance are also forward-looking statements. Forward-looking statements are not guarantees of future performance, and involve known and unknown risks, uncertainties and other factors, many of which are outside the control of Myer. Actual results, performance or achievements may vary materially from any forward-looking statements. Readers are cautioned not to place undue reliance on forward-looking statements, which are current only as at the date of this release. Subject to law, Myer assumes no obligation to update such information.

303    The following persons participated:

CORPORATE PARTICIPANTS

Bernie Brookes Myer Holdings Ltd – CEO and MD

Mark Ashby Myer Holdings Ltd – CFO

Tony Sutton Myer Holdings Ltd – Executive General Manager Stores

CONFERENCE CALL PARTICIPANTS

Michael Courtney Bank of America Merrill Lynch – Analyst

Ben Gilbert UBS – Analyst

Michael Simotas Deutsche Bank – Analyst

Andrew McClelland CBA – Analyst

Rob Freeman Macquarie Group – Analyst

David Thomas CLSA – Analyst

Shaun Cousins JP Morgan – Analyst

Craig Woolford CitiGroup – Analyst

Tom Kierath Morgan Stanley – Analyst

Grant Saligari Credit Suisse – Analyst

Daniel Blair CIMB – Analyst

Craig Stafford UBS – Analyst

304    Mr Brookes made the presentation concerning the full year results announcement for FY14.

305    As part of the presentation he stated:

Our results for the 2014 year are in line with expectation and as previously broadcast to the market demonstrates significant investment that we have undertaken this year and investment that we will undertake next year. We maintained our total sales as flat, despite significant disruption in the business.

We closed the Dandenong store and closed the Elizabeth store and we undertook four significant refurbishments and these were four of our top 25 stores and they included Indooroopilly, which has just recently reopened, also Adelaide, which has recently reopened and that was a major refurbishment and also Miranda and Macquarie which will open in the last half of this calendar year. We are looking forward to both of those coming back online as well.

The pleasing part was that our like-for-like sales growth grew by 1.2% for the year and in fact in the last quarter, we had a very strong like-for-like sales growth, just on 2.1% and that was pleasing, giving us a good momentum coming into this year.

That means that our like-for-like sales growth has in fact increased eight of the last nine quarters. We made a deliberate plan in the last quarter to push our mid-year sale back a few weeks and that resulted in the best mid-year stocktake sale that we have had in some four years.

Our operating gross profit was down on prior year and that was impacted by several factors and Mark will take you through those today.

It was obviously a deliberate investment by us, particularly as business turned around following the announcement of the budget and the unseasonal warm weather. However, we were impacted mainly by the depreciation of the Australian dollar and Mark will cover that off.

Increased investment that we have had in product development, ensuring that we have a design based business and that for us is really important as we go forward with our Myer Exclusive Brands.

We also had a very strong customer response to a number of loyalty initiatives and they included a lot of points initiatives that drove customers into our store, particularly as the business was a little patchy during the course of the year.

Part of that operating gross profit was also impacted by the investment that we made in the business and specifically investing in Myer exclusive Brands and also the costs were impacted by both omni-channel investment and investment in store network and Mark will take you through those cost imperatives.

Our EBIT results also demonstrate the flagged increase that we had in cost of doing business, being our investment in wages and omni-channel for the last 12 months.

As the only listed Australian department store, we announced yesterday a dividend of AUD0.055 fully franked and that represents an increased payout ratio. So the Board and management have been able to successfully return funds to shareholders through the dividend and at the same time continue significant investment. And that investment is in the magnitude of AUD80 million capital and up to AUD50 million in Op Ex alone in this year.

The pleasing part is despite that investment and despite the disruption to the business, we have continued comparable store sales growth and at the same time we were able to invest in the future.

The highlights for this year also included the successful and ongoing execution of our strategy. Pleasingly we were once again able to increase the hours allocated in each store for customer service. The customer service announcements are now starting to reflect in the improvements that we get in our Net Promoter Score.

Further growth in our Myer Exclusive Brands now represent 20.3% of mix. There is no doubt it takes a long time to build a good Myer Exclusive Brand business. Back in 2010, our business was 14.3% and today up at over 20.3%. You have to move along with the customer and more importantly it is hard work to get Myer Exclusive Brands established as brands in the business and we are working at that and continue to work at it and we have done quite well this year.

We now have three brands over AUD50 million and some of our best performing brands include Trent Nathan and Tokito, some good success with some of our Myer Exclusive Brands.

We have also seen an enhanced merchandise offer with a number of key new brands that I will call out later and they are actually on show on our mannequins out the back and I will talk about a little bit of those a little bit later as well. We are really pleased with some of the new brands we have been able to secure.

Over AUD50 million in Myer One rewards cards were given out this year so we are really pleased that we were able, at record numbers, to reward our Myer One customers with significant reward cards, over AUD50 million and that now generates over AUD200 million in sales because the multiple factor of spend has gone from 3.8 times to up over 4 times.

Really pleased with the progress we have made with our online offer. The money that we’ve spent on stability of the site and being able to take large quantities of orders and people visiting our site. The functionality has improved and our 3PL that we have established has given us a great opportunity to improve our fulfilment.

Pleasingly we now have Click & Collect in every store in Australia. I will talk a little bit later about an exciting roll out of our iPads and the ability to make our smaller store our largest store from today.

Significant progress and optimising our store network with the closure of two stores that didn’t quite fit our criteria and also a number of refurbishments and the four big refurbishments. In addition to that, the closure of non-performing stores will also stretch as today we’ve announced the closure of our Hurstville store.

Pleased that we have now got a strengthened leadership team. We are excited by the opportunity to introduce today our strong leadership team and the changes that we have made reflecting the new skills that we needed in the business.

Overall the benefits we have achieved of significant investment in a patchy environment has given us an adequate result.

306    Later he stated:

Let me now in a couple of slides take you through more formally our outlook.

Firstly our sales outlook. We do see anticipated sales growth this year. We get the full benefit of both the Adelaide and Indooroopilly store that have already opened. We get the additional space in the Melbourne store, and that’s 7000 square metres for MyKids. I’d also add that the opening of Emporium and H&M next to us has increased foot traffic, also building that store’s volume as well.

The opening of two new stores before the very important Christmas and stocktake trading period of Mt Gravatt and Joondalup will be a little bit offset by the closure of Dandenong and Elizabeth, as they circle a full year closure, and also the Hurstville store closure which will be in February as well.

The completion of the remaining two refurbishments in the last half of this year, which is Miranda and Macquarie, will be a little offset – somewhat offset by the major refurbishment of Warringah.

Continued growth in the online business, and again doubling for the last two years and now becoming quite a significant percentage of our business.

New partnerships with Australian designers, some we’ve touched on today. Alex Perry, L Lisa Ho and by Johnny, and some we’re yet to announce. Continued growth in Myer Exclusive Brands, sass & bide, and other national and international brands, and the exciting new Christmas marketing strategy that we’re about to implement.

We do see this as a time of opportunity in our sales environment.

We are accelerating our investment in 2015. We are committed to investing in the business. The balance between shareholder return and investment is something that we take carefully, but it’s important that we invest in the business with the opportunity that’s around us in the marketplace at the moment.

Our underlying cash cost of doing business will increase by approximately 3%. There is ease in the cost of wages, as we’ve already highlighted to the market many times. In addition to that, easing in our underlying costs. However we do see ourselves investing between AUD35 million and AUD50 million in addition to the business, to firstly accelerate the delivery of our omni-channel strategy. When we can invest in iPads and gain the sort of results that we’re starting to gain, it’s good investment that will pay us back.

Investing in our people, including training. We’re going to re-introduce the graduate program, 160 new service managers in our store, development of our people. We’ve already heard – I’ve already mentioned to you about strengthening our leadership group. Performance based rewards and recognition, and a frontline management in stores, all providing an investment that will give us a return.

Some work on the Myer Exclusive Brand strategy, and moving those brands – those core brands to be generally marketed brands. A continued customer service innovation and investment and refreshing the Myer brand. There’ll be more to come in that at a later date.

We’ll continue to invest in the business, yielding a good long term view and good long term results for our shareholders, particularly in the market today with increased competition and changes that are taking place.

Our outlook in 2015 therefore is that we anticipate sales growth. Modest growth in operating gross profit margin driven by our improved sourcing, particularly through Asia, and a mix benefit as our Myer Exclusive Brands continue to grow.

These will be offset, as Mark has already highlighted, by the changes that are occurring in the average exchange rate. The new brands, such as Scotch & Soda, Herringbone, Alex Perry and the ones we’ve mentioned will help us drive increased profitability in sales. Also ability to use Myer One insights to be more relevant in the promotions and offers to our customers is another.

We are though, as I’ve highlighted, committed to re-investing in the business. We have got strong cash generation, expected to strengthen our balance sheet, and supported by our CapEx investment of over AUD80 million. We will therefore not only have anticipated sales growth, but anticipated profit growth this year.

The recent strengthening of the leadership team is expected to contribute to the evolution of our strategy. We’ll gain some great new ideas.

Investments are important in our business, to deliver continued operational improvements. It’s a very difficult and changing retail world, and the ability for us to invest is not only significant but much needed.

We are happy to take questions from both the webcast and also for the group here. We’ll take a couple from here. We’ve got about a dozen on the phone. So I’ll take one from here. If you could introduce yourself as you get the microphone, that would be great.

(Emphasis added.)

307    Later during the Q&A session, the following was said:

Michael Courtney – Bank of America Merrill Lynch – Analyst

The profitability isn’t as big of a concern as the actual level of profit because if you give up – if – let’s say, and this might be bearish but this is just my line of thinking here. If you’re taking AUD60 million in higher costs and probably add on a little bit more for depreciation as well, if you can only grow gross profit, which keep in mind when – well it didn’t grow this year. If you can only grow that by AUD30 million, that’s a huge hole in your earnings.

So how – through the year, if it is a tougher environment, what level of – well what levers do you have to pull to be able to offset that a bit?

Bernie Brookes – Myer Holdings Ltd – CEO and MD

I think the reason that we can afford to spend AUD35 million to AUD50 million – which you’re right, actually almost AUD60 million – the reason we can afford to spend that amount of money is the sales graph this year. The two new stores combined with the four refurbs coming back on, doubling the online business, the new brands, all provide us with a vehicle – by which the topline growth that we talked about.

Now what we’re saying to the market is we’re going to get topline growth and net profit growth. So despite the fact that we’re investing a sizeable amount of money to make sure we get those two factors in future years, we’re balancing what we return back in net profit to our shareholders with what we think we need to invest in the future to make us a leading edge retailer.

So the sales growth is the key to it. That’s what the driver is obviously of our net profit growth this year. You know, modest GP growth we said.

(Emphasis added.)

308    Later the following exchange occurred:

Rob Freeman – Macquarie Group – Analyst

Just to clarify an earlier comment, topline should go up next year, factoring new stores and refurbs. You made a comment, Bernie, that you’re guiding for a net profit increase 2015 on 2014 despite this additional investment. Is that correct?

Bernie Brookes – Myer Holdings Ltd – CEO and MD

That is correct, yes.

(Emphasis added.)

309    Another exchange then occurred:

David Thomas – CLSA – Analyst

Thanks Bernie. Just a quick question around some of the volatility in trading. Obviously the consumer confidence numbers have been bouncing around. They were negative yesterday particularly if you looked at the skewed drill downs for females. I was just wondering if you can give any colour on current trading or if you’re prepared to just – or how volatile trading has been over the last two to three months.

Bernie Brookes – Myer Holdings Ltd – CEO and MD

Yes, I know you don’t like me using this word and some of the journos asked me to define it, but the answer is patchy. The scenario is that the – you’ve picked it very well. I mean, the announcements that take place in government policy, issues in regard to international issues of everything from terrorism to good news bad news for the international banks, whatever it is it does have an impact on the mindset for our customer, as evidenced by the Consumer Confidence Index again declining. It’s not down to a level that reflected post-the budget.

So immediately you’ve seen a dump down in consumer sentiment and that does reflect almost daily if not weekly in our sales. So patchy at the moment but they are, I would add, in line with our expectations at the moment. So we’re not concerned that anything we’ve presented today is at [either] a risk because of our current trading environment.

310    Finally, for present purposes, he said:

Bernie Brookes – Myer Holdings Ltd – CEO and MD

Just to help you break that down I think the two new AUD30 million sales performance in year two, so you can take a little bit off for year one. One will open in October, the other one opens in November.

So hence there’s probably AUD40 odd million in sales to come during that period for both of those. With a little bit of cannibalisation of existing stores, Mt Gravatt cannibalising Carindale and in Western Australia there’s less cannibalisation of Joondalup, but a little bit so you’ve got to take a net figure after cannibalisation.

The AUD40 million is the return for those stores. Now they’re not returning for the full year. Miranda returns in about October/November and similarly Macquarie about the same time. But the other stores we’d gain basically the full year of them.

So we’re going to get most of that AUD40 million back. Where you get the AUD100 million from is remember you’ve got to add in on line, which will be doubling again this year. So that gives us the rest that gets you up over AUD100 million in sales growth.

(Emphasis added.)

311    The applicant said that this last statement should have triggered a review and correction, but I disagree. The statement says “…up over…”.

312    There was then a later conference call with the media at 11.45 am. The conference call was with various financial journalists. Let me note a few highlights.

313    In commenting on the FY14 results, Mr Brookes said the following:

And we’re very comfortable that we’ve been able to get into a situation where we’ve got the business positioned for future growth. Our overall sales were solid and flat despite four significant refurbishments at Miranda, Macquarie, Indooroopilly, and Adelaide. And also two store closures that we experienced; one being at Dandenong, and the other one being at Elizabeth in South Australia.

The pleasing part is that our like-for-like store sales were up 1.2 percent. And the last quarter pleasingly was up just on 2.1 percent. And that was despite the reasonably subdued customer confidence levels following the federal budget and the unseasonable warm weather.

This is now eight of the last nine quarters where we’ve achieved like-for-like sales growth. And that’s being driven by a number of components, but particularly our online sales, which doubled this year. We have – our result was expected and planned on the basis of the investment we made this year.

We forecasted to the market that the reduction in profitability would come about because we were investing heavily in online, in Myer Exclusive Brands, and also investing heavily in four significant refurbishments. And they were four of our top 25 stores. And the benefits will come not only this year, but in future years from that.

314    Now some of these comments were problematic, but I do not need to linger on this.

315    Later he said:

We’re confident that sales will grow this year.

316    Then he said:

This reflects the confidence that the business has and the Board have. But over the next 12 months, we’ll see an improvement in sales and an improvement in net profitability.

317    Then the following exchange took place between Mr Brookes and Ms Sue Mitchell:

Sue Mitchell:    Good. In terms of your outlook, is it fair to assume that it’s a little bit weaker than it was this time last year? I think last year, you were suggesting that the new stores and the refurbishments would help boost the topline by about $100 million. Is that still the case?

Bernie Brookes:    No. Yes, it’s still the case. I mean, this is a – the – if I look at last year’s announcement. We advised the market that would be making less profit than last year because we said we’re – we had four stores under refurbishments.

And also, we advised the market that we would be investing significant sums in service, Myer Exclusive Brands, and online. And that’s exactly what we did. And it’s certainly no surprise to us that the profit delivered sort of 20 percent down. It was exactly in line with what we expected and what we broadcast to the market. So …

Sue Mitchell:    Well, I mean the guidance for 2015; I mean, last year you were saying that this is the year …

Bernie Brookes:    Yes.

Sue Mitchell:    That – 2015 was the year …

Bernie Brookes:    That’s right.

Sue Mitchell:    That it was all going to come to head.

Bernie Brookes:    So, that hasn’t changed either. That hasn’t changed. The scenario is that the – that refurbishments affected our business by about $40 million. So, we’ll get that back in a staged way as the refurbishments open.

The two new stores are going to generate – they’re not open for the full year – but they’re going to generate about 30 to $40 million. The two just joined together less cannibalisation.

Our online business is going to continue to double. So, if you add all of that together, you get $100 million quite comfortably in additional sales this year. So, we’re still standing behind that. And in fact, we’re very confident now that we’ve got firm dates for the store openings and firm dates for the refurbishments to reopen and we’re starting to get significant growth in online.

So, those three factors, we stand behind that $100 million in extra sales; which will be quite exciting for us.

In regard to the GP, we’ve seen a modest increase in GP. And we’ve said to the market that we’re going to increase our net profit this year. So, we’re getting increase in sales, an increase in net profit.

318    Then later Mr Brookes had the following exchange with Ms Elizabeth Knight:

Elizabeth Knight:    Hi, Bernie. I was just going to – obviously you’re saying in your outlook statements that you’re going to get a better net profit result in 2005. Obviously that’s gone back – sorry – 2015. Obviously it’s gone backwards this year. How long do you think it’s going to take before you even get back up to basically where you were last year?

I mean, given that we’ve seen a couple of years now of going backwards in terms of sales growth? How long will it take to claw that back?

Bernie Brookes:    Yes. I think if we give you an exact sort of year, we’re actually giving you a forecast, which we can’t do from a market point of view. It’s called a selective briefing. So, we actually can’t say that. But I would add a couple of things.

319    Further, later in the call Mr Brookes made some problematic statements concerning the sales in the first eight weeks of the financial year.

320    It is clear that the 11 September 2014 representation was made. Moreover I am in no doubt that it should be taken to have been made on behalf of Myer. Several features of the 11 September 2014 representation can be noted.

321    First, the 11 September 2014 representation was a forecast of anticipated NPAT. Moreover, of its nature, it was the expression of an opinion.

322    Second, the comment was made in the context of disclaimers contained in accompanying written material which cautioned that forward-looking statements, such as the forecast, are not guarantees of future performance, involve known and unknown risks, and that actual results may vary from such statements. However, not too much emphasis should be placed on that context.

323    Third, the intended audience of the statement was principally the sell-side analysts and media who were present on the call when the statement was made. And it must be said that most of the analysts and media were sophisticated members of the business and commercial community. Moreover, investors more generally who might have accessed the transcript of the call or reports of it were also not likely to be naïve. And that audience would also likely understand the qualifications attending such a statement including the inherent uncertainties attending forward-looking statements of that type.

324    Fourth, the context is also important. The comment was made only six weeks after the start of the financial year. Accordingly, the comment was prior to the significant trading periods for the year. Such a statement may be contrasted with a statement made a long way into a financial year, which may be taken to carry with it a greater degree of certainty or precision.

325    Fifth, as Myer points out, Mr Brookes’ statement did not identify a firm number or a specific range for NPAT which may have carried with it, if it did so identify, the implication of a greater degree of certainty.

326    Sixth, the formal ASX release of 11 September 2014 itself did not include any forecast in relation to NPAT.

(b)    The market reaction to Mr Brookes’ comment

327    Now the reaction of analysts to any disclosure is not necessarily irrelevant to understanding market expectations. But of course consensus forecasts do not necessarily reflect the views of all investors.

328    Immediately following the 11 September 2014 representation, Bloomberg consensus was below $98.5 million, being $96.85 million. Further, a review of the reports that analysts produced following the 11 September 2014 representation demonstrates that analysts did not treat what was said by Mr Brookes as Myer having provided formal or specific guidance.

329    The material before me exemplifies the following analysts’ responses:

    UBS: “While management did not provide guidance, they did say that FY15 NPAT is expected to be up y/y, underpinned by …”;

    Macquarie: “Whilst no formal guidance was provided as expected, MYR indicated it is positioned to deliver an improvement in sales in FY15 … ‘modest growth’ in operating gross margin and ‘underlying’ cash CODB to increase 3%.”;

    Deutsche: “As expected, the group refrained from providing formal earnings guidance. However, in a similar manner to recent results, the group provided qualitative guidance on sales and gross margins as well as the usual guidance range for cost growth”;

    Goldman Sachs drew a distinction between Mr Brookes’ comment and “guidance”: “MYR did not provide specific FY15 guidance, although on the conference call the CEO advised that they expect growth in NPAT”;

    JP Morgan made no mention of Mr Brookes statement;

    CIMB did not refer to Mr Brookes’ statement as constituting “guidance”, whilst noting that other statements in the published ASX documents were “guidance”. Also, CIMB said “we believe MYR is unlikely to achieve its target of NPAT growth in FY15”;

    BofA Merrill Lynch noted that Myer management commented that they believed NPAT growth was achievable, but didn’t characterise this as guidance or understand the comment to be any more than a comment from management as to their belief. Notably, BofA Merrill Lynch said “we applaud the optimism of management who expect NPAT to grow in FY15 despite guiding to increases in fixed costs that with [sic] pose a 41% ($65m) headwind to earnings growth. We are forecasting FY15 NPAT to decline by 11%” and “In spite of the Management’s optimism today about positive NPAT growth in the coming year, we continue to forecast double digit decline in FY15”;

    Morgan Stanley noted that other statements in the published ASX documents were “guidance”, but did not refer to Mr Brookes’ comment as such. Morgan Stanley said “MYR stated that it expects profit growth in FY15. Based on guidance for ‘modest gross margin expansion’ and effectively A$66-A$81m cost growth, MYR needs both strong sales growth and significant gross margin expansion to maintain current profits” (original emphasis);

    Citi referred to Mr Brookes’ comment as Myer budgeting for net profit growth and planning for profit growth, but did not refer to it as guidance. More specifically, Citi said “Myer is budgeting for net profit growth in FY15e” and “While the company is planning for NPAT growth in FY15e, we are concerned the gross margin expansion will be insufficient”;

    Credit Suisse simply said: “Myer is guiding towards an undefined increase in profit in FY15” and “MYR is indicating net profit growth in FY15”;

    CAN referred to Myer’s expectation of bottom line growth, but did not refer to this as guidance whilst referring to other statements in the published ASX documents as guidance;

    CLSA referred to Mr Brookes’ comment but did not suggest that it was guidance. CLSA said “The company is confident it can grow sales, gross margins and NPAT in FY15”; “Myer’s CEO Bernie Brooks was clear. He expects decent sales growth in FY15, gross margin expansion and NPAT growth”; and “our new FY15 NPAT forecast of A$90.4m … does not match what Myer’s CEO Bernie Brooks said on the call, which was that he expects NPAT growth in FY15”.

330    Further, whilst Mr Brookes’ comment was reported in several newspaper articles, his comment was usually accompanied by the journalist’s own comment or comments from analysts that questioned the likelihood of profit growth in FY15.

331    The following examples were given in evidence:

    “Tough sell on Myer turnaround”, 11 September 2014, Australian Financial Review;

    “Brookes sticks to $160m revival plan”, 11 September 2014, Australian Financial Review;

    “Myer spend pledge sparks shares slump”, 12 September 2014, Sydney Morning Herald;

    “Fortress Myer is looking defensive”, 12 September 2014, Sydney Morning Herald;

    “Myer mauled by 20 per cent selloff”, 13 September 2014, The Age;

    “Troubled Myer share slide turns to a rout”, 13 September 2014, Canberra Times;

    “Analysts cut Myer ratings as shares fall”, 13 September 2014, The Australian.

332    Myer made much of the distinction between what Mr Brookes said and the concept of formal or specific guidance. I must say that there was imprecision in what was meant by the latter concept but it is fair to say that relatively speaking the latter was given greater weight by the market as being a more formal position of the particular company.

(c)    Events after 11 September 2014 – general

333    The applicant alleges that as a result of additional matters that became known to Myer after 11 September 2014, it can be inferred that Myer knew of the paragraph (a)(xxvii) information, which I have set out earlier, at various later dates.

334    The details of the matters relied on by the applicant in its particulars of knowledge in relation to the period after 11 September 2014 fall into three categories.

335    The first concerns trading results which were received during this period which showed that sales and other matters were behind budget.

336    The second concerns reforecasts which were undertaken because sales and profit were under budget.

337    The third concerns the outcome of the reforecasts, in which the applicant alleges that Myer identified that it was unable to forecast for NPAT in excess of its FY14 NPAT.

Trading results

338    Some of the trading results relied on by the applicant included:

(a)    the week 7 trading results received by management on 15 September 2014;

(b)    a document sent to Mr Ashby around 22 September 2014, which set out the “September Preliminary Result”;

(c)    an email dated 25 September 2014 which contained a review of September 2014;

(d)    a weekly sales report from Mr Brookes to the board dated 8 October 2014;

(e)    a weekly board sales report to the end of week 11;

(f)    reports given to the board by the CEO and CFO on 16 October 2014; and

(g)    the receipt of week 13 sales results around 26 October 2014.

339    I note that various Myer witnesses accepted that whilst the results set out in some of these documents were in certain respects behind budget, they did not consider and did not recall thinking that those figures indicated that the NPAT figure in the FY15 budget was unlikely to be achieved, or that Myer could not maintain an NPAT in excess of that in FY14. Moreover, each of Myer’s witnesses gave evidence as to the relative insignificance of Myer’s results in the early part of a financial year, and prior to the December/January period.

340    For example, Mr Ashby explained why the early trading in Q1 did not and would not have changed his view that the budgeted NPAT of $107 million was achievable and realistic. So, he gave evidence that:

(a)    “August is the first month of Myer’s financial year and a small sales month in the context of the first half of the financial year. For this reason, being behind budget in August was no reason for thinking that Myer could not achieve the NPAT in the FY15 Budget”;

(b)    as at early September “[i]t was far too early in the year to form a view that the FY15 Budget was unlikely to be met”;

(c)    “Week 7 is still early in the financial year and long before the key trading period of December and January”;

(d)    “By 25 September, Myer is only two months into its financial year. In addition, as already noted, the months of August and September are low volume months and often trade at a loss. Although a trend may have emerged over those two months, that did not mean that the trend will continue during the key trading months of December and January when Myer makes a large portion of its annual profit. Further, any trend can be addressed by taking corrective measures such as reducing costs. In my email sent on 25 September 2014, I ask for the recipients’ views on the outlook for H1 of FY14 and opportunities to reduce costs”;

(e)    as at 26 October 2014, “The sales trend was behind the FY15 Budget, but a different trend could emerge in December and January, which were the most significant months for Myer”;

(f)    Q1 (being August, September and October) in terms of sales and profit is “relatively speaking, a small quarter” in the context of the full year, had “historically accounted for only about 21-22% of yearly sales” and “recorded a loss in FY14, and was budgeted for a loss in the FY15 Budget”; and

(g)    historically, Q1 has not provided a clear or reliable guide for performance for the remainder of the year due to its relatively small size.

341    Mr Brookes gave evidence that:

Based on my experience and knowledge of Myer’s business, it was not a matter of significant concern if, in the early part of a financial year (August to November), Myer was not fully meeting budget for those months. Only a very small proportion of Myer’s profit is made in the first four months of a financial year. The majority of Myer’s annual profit, historically around 65%, would be earned in December and January. Department stores generally and Myer in particular make most of their profit in the two trading periods of December/January and June/July. These are the key months for profit, and a number of the other months are unprofitable. Accordingly, a 1% movement in sales in December or January could make a huge difference to the end NPAT results, whereas missing sales budget’s [sic] in the early part of the year would not make much difference to NPAT.

Accordingly, I was not overly concerned about sales in the period August to November tracking 4% or 5% below budget. I took the view that there was a long way to go, that any impact on NPAT of these slightly lower than expected sales could easily be made up in December and January, and that I still had a number of costs ‘levers’ to pull if necessary (described in further detail below). If sales (and profit) are not tracking as budgeted, the business has a number of ‘levers’ to pull to still achieve the budgeted profit. For example, I instituted a process called executive ‘hot tubs’ that were used, as the year progressed, to seek to identify achievable costs savings. Also, as stated earlier, a major driver for the forecast increase in sales for FY15 was the opening of two new stores. However, I did not expect the uplift in sales from these new stores to make an impact until after November. The new store at Mt Gravatt only opened in October, and the new store in Joondalup did not open until mid-November.

For the above reasons, even though the months of August to November were relatively tough and the budget was not being met, throughout that time I still considered that the Budget was likely to be achieved and in particular that an NPAT figure of $107 million for FY15 remained realistic and achievable.

342    Mr Brookes gave more specific evidence in relation to particular dates and documents identified and relied on by the applicant, including that as at 25 September 2014, “At this stage, again based upon the Final FY15 Budget, the fact that we were only two months into the year, with the most important months of December and January to come, and the costs levers and buffers I had available to me, I continued to hold the view that the budgeted NPAT of $107 million was achievable”.

343    Such evidence was supported by the evidence of various of the non-executive directors of Myer. For example, Mr McClintock gave evidence that the results in August were not of particular significance or concern because:

…Myer’s financial year ends on the final Saturday in July. August is not a significant month for Myer’s full-year performance. It contributes a very small part of Myer’s total sales for any year. It is usually a loss-making month. The insignificance of August 2014 can be seen by comparing the total sales it contributes to the total budgeted sales for FY15. The total budgeted sales for August 2014 were $190.1 million (being $180.5 million plus $9.6 million). The total budgeted sales for FY15 were $3,325 million … Hence, August represented approximately 5.7% of budgeted sales for FY15. Myer makes most of its profit over Christmas and New Year, and a lesser but still substantial amount in the mid-year sales in June and July. The remaining months in the financial year are far less significant.

344    Mr Myer, upon being shown a copy of the document titled “August 2015 Financial Results – Board Meeting September 10, 2014” that would have been provided to the board ahead of the board meeting, said that:

…I believe that I would have read this document, although I do not now specifically recall what views I formed when I read this document. However, I do not believe that I would have formed the view that the results for August which are summarised in this document meant that the FY15 Budget was unrealistic or was unlikely to be achieved, or that it was in significant doubt. August is only the first month of a 12-month financial year, and it is an insignificant trading month relative to other months. In particular, December and January are the dominant months for Myer in terms of when most of its profits are made. Sales in these months are critical to the full year result. Sales in August to November are not.

345    Further, although I will come to these matters later in the chronology, it is convenient to record here that although Mr Myer could not specifically recall what he thought about the weekly sales reports for FY15 week 10 and FY15 week 11 in October 2014, he did not believe he would have thought that they indicated the FY15 budget was unrealistic or unlikely to be achieved. As he said, “October was far too early in the year to form such a view, as the main trading months of December/January and June/July were yet to occur”.

346    I have no reason to doubt either the reliability or commerciality of evidence of this type.

Internal forecasting within Myer

347    It would seem that within Myer there were reforecasts of different sorts conducted at different levels, as Myer correctly submitted.

348    The first type of reforecast was a replan or reforecast conducted by the Merchandise team to the BGP level. Such a replan would only look at sales and not, inter-alia, costs. This form of replanning or reforecasting work was referred to as a “merchandise KPI” or “KPI” process, or a “merchant reforecast”.

349    The second type of reforecast was a sales replan which could be conducted in relation to a specific area or areas of the business (e.g. furniture), which would generate a new forecast for those specific areas only. This was typically referred to as a “general replan” or “general forecast”.

350    The third type of reforecast was a full sales replan conducted three to four times each year, which replan would then be used to produce a forecast for the year which, from that point in time, would become the main reference point looked at by management and the directors. The information from such a sales replan could then be combined with information on costs to create a forecasted P&L. It would seem from the evidence that the first replan or forecast of this nature conducted and finalised in FY15 was on 9 December 2014.

351    The fourth type of reforecast was a “high-level” P&L forecast.

352    I enquired of Mr Ashby as to the reforecasting process and received the following response:

HIS HONOUR: Can I just ask you about the forecasts at this time. So you’ve got your budget. You start the new financial year. Do you have forecasts quarterly or half-yearly or for the full year? What sort of forecast? I don’t have quite a grip on that?---Thank you, your Honour. There’s multiple layers to a forecast. So for good inventory management and working-capital management, you tend to keep an eye on categories that maybe are not performing. And I had a team that would do that with the merchandise team. And they would typically update their forecasts. As a matter of fact, I think one of the poor-performing areas was women’s wear – for argument’s sake. So you start to look at women’s wear. If you assumed everything else was on line, you would just focus on women’s wear. So that’s a general forecast. So where do you think that’s going to head; so you adjust your inventory levels. The next layer down is when you say, “Well, actually we want to do all merchandise. We want a complete forecast”, and that’s called a re-plan. So that’s a big exercise, and that goes down to a very low level of detail and rebuilds it. And - - -

How frequently would you do that? Is that something regularly done or done on a cycle basis, or is it done on a one-off when people are aware that there’s some great disparity between, say, the budget and what’s happening at the start of the financial year?---It’s more as required. So be unusual, to do one in the first quarter. A, it’s a big job, and B, you would have to be – have to have really good reason to go through that. That’s not to say it couldn’t be done. But normally – sort of – as required. If – for argument’s sake – if everything is on budget and all the KPI – everything is being met, there’s no real need to do a re-plan. The second components of the re-plan is – once you have the forecast in, then you look at the cost structure of the business; you go out to the stores, and you reconstruct the whole - - -

But just on the merchandise; that would be just on the sales line. You wouldn’t be looking at costs necessarily, the first description?---No. That’s correct, your Honour. It’s down to gross-profit level and then what they call trading terms, which is where you receive funding from suppliers for markdowns and the like.

Thank you for that?---Thank you.

353    And further:

HIS HONOUR: Yes. So we’ve got three types of what I will describe as forecasts. And we’ve got a sales forecast. We’ve got a much more in-depth replan, and you say there is also a high-level forecast that’s done for the P and L?---So – yes, your Honour. Sorry. You would get an analyst in the finance team to talk to the analyst in the different teams and say “All right; if we had these numbers, what would it look like”, and they would pull it together, and they produce a forecast. That’s before you go through and start to scrub of the some inputs on the – for the cost, which is what the hot-tubs document is actually about.

Forecasting during September 2014

354    There are several documents that the applicant has relied upon. Let me deal with each in turn.

355    The applicant has referred to an email dated 14 September 2014 between Mr Maillet and Mr Daniel Bracken, which evidences an initial discussion and consideration by the Merchandise team of a “merchandise KPI” which involves considering sales to the BGP level. But neither Mr Brookes nor Mr Ashby saw or should have seen this document. Further, all that the document shows is that “after backing out the new stores from future growth”, and prior to contemplated “mitigation”, there was sales risks as compared to the budgeted sales figure. This document does not take the applicant far.

356    Further, in the applicant’s closing submissions in relation to its no reasonable grounds claim, the applicant placed significant emphasis on an email from Mr Brookes to, inter-alia, some of the directors dated 14 September 2014. The 14 September 2014 email stated the following:

There are a large number of Broker reports but rather than send them to you Davina has put together a summary of the major themes and share price review.

The pleasing news is that the median NPAT consensus has fallen 14% to $92m and this reflects in the share price.

They have estimated a sales consensus of 3.6% where our budgets are 5%.

A reminder that our overall net profit budget sits at $107m.

Despite the significant number of issues that are covered well in the summary the news (good or bad) is that we now have a consensus of $92m with a budget of $107m.

357    The applicant contended that this email confirmed several matters. Mr Brookes had no real confidence in the FY15 budget of $107 million, otherwise the $92 million “median NPAT consensus” could not possibly have been “pleasing news” or “good”. Mr Brookes did not genuinely believe that Myer would earn $107 million in FY15. And Mr Brookes did not genuinely believe that Myer would earn more profit in FY15 than it had earned in FY14.

358    Further, the applicant submitted that Mr Brookes’ evidence that as at 25 September 2014 he continued to hold the view that the budgeted NPAT of $107 million was achievable was inconsistent with this 14 September email.

359    Now none of the above propositions were put to Mr Brookes when he first gave evidence. Indeed, the applicant did not refer to or tender the 14 September email until after Mr Brookes had been cross-examined, and after the conclusion of Myer’s evidence. Further, the 14 September email had not been relied on by the applicant in its pleadings as forming part of its no reasonable grounds case. But by its amendment to the particulars to paragraph 15 of the further amended statement of claim made after the conclusion of all evidence at trial, and after it had presented its oral closing submissions, the applicant sought to rely on the 14 September email as part of its no reasonable grounds case.

360    In light of the contentions advanced by the applicant after Mr Brookes had given evidence at trial, Mr Brookes addressed the 14 September email in his second affidavit dated 14 November 2018. He explained what he meant by his comments in the email, and gave evidence confirmatory of his earlier evidence that:

As at 14 September 2014 when I sent the Email, I continued to hold the view that Myer was likely to achieve the budgeted NPAT figure of $107 million or a figure relatively close to this, and certainly a figure above the FY14 NPAT of $98.5 million.

In the Email I said that “the news (good or bad) is that we now have a consensus of $92m with a budget of $107m”. I also referred earlier in the Email to the news being “pleasing”.

I considered the news to be “good” or “pleasing” because even if there were poorer than expected trading during the forthcoming months, and in particular over the significant December/January trading period, then Myer had some “wiggle room” and was unlikely to have to make a profit downgrade announcement. That is, the news of a lower consensus figure was pleasing because it meant that a profit downgrade was unlikely even if it became clear that the budget would not be achieved. At that time, I still considered that Myer would achieve its budgeted NPAT of $107 million or a figure close to that.

I believed that the news might be considered “bad”, from an alternative perspective, because if the consensus figures remained at such a relatively low level and it became increasingly certain as the year progressed that the forecast set out in the budget would be achieved or exceeded, particularly after the significant trading period in December/January, it would become increasingly likely that that a corrective announcement, based on actual results, might be required.

I did not, however, think that there was any need to consider an announcement at this time (14 September 2014) concerning Myer’s expectations as to its NPAT being higher than any consensus figure. In particular, I did not know what Myer would have said other than to repeat my comment, made three days earlier, that Myer anticipated NPAT growth in FY15. That was certainly still the case and hence there was in my view no basis for considering a corrective disclosure.

361    Mr Brookes explained why he had referred to news of the consensus drop as being “pleasing” or “good”. At the hearing on 5 December 2018 Mr Brookes was cross-examined about the 14 September email and his evidence in relation to it. But he was not directly challenged on his evidence that as at 25 September he continued to hold the view that the budgeted NPAT of $107 million was achievable. All that Mr Brooks was cross-examined on was why he considered the drop in consensus to be “bad”. I agree with Myer that there is no basis on which I should reject Mr Brookes’ evidence in this regard.

362    Further, the applicant relied on various other emails which I should briefly mention.

363    On 15 September 2014, Mr Ashby sent an email to Mr Kocovic, Mr Lauder and Mr Mike Sampson. He stated in the first two paragraphs:

I think given we have been trading now for nearly two months into the year, it’s time we reforecast the business against budget. This needs to take place considering the merchandise sales trend. I would also like to get a view as to the current expectations and costs.

Mike has also identified the potential gap in the Online business therefore, I would like to throw that into the mix so we can understand what that means in the context of the half and the year and what actions we need to put into play.

364    So, a process of reforecasting the business against budget was to commence. Mr Ashby gave evidence that:

A reforecast as against budget would be prepared as a matter of course each year. It was important to start preparing a reforecast so it could be completed ahead of the Christmas trading period. This was necessary so that inventory levels could be set to maximise the key trading season in December/January, as well as aligning costs appropriately. As I have mentioned earlier in this affidavit, setting the right inventory levels is important. An excess of stock is undesirable because that leads to mark downs, and a lack of stock is undesirable as it might mean that demand is not met. The aim is to only commence marking down stock for the Boxing Day sale, and certainly not before Christmas, as that will harm margins during the key trading month of December.

It is also important to start preparing a reforecast early so that corrective measures can be taken sooner rather than later to stay on track to achieve budget. As referred to in my email at tab 36, sales were below budget by mid-September. Reforecasting did not typically commence in Q1, as it was often considered too early based on the actual sales data available at that time. However, but if sales were tracking below budget, a view might have been formed that this could indicate a trend that might carry into the future, and that a reforecast should therefore be undertaken. I cannot now recall if this is the view that I held at the time.

365    In the second paragraph of his email that I have set out above, Mr Ashby referred to “what actions we need to put into play”. In this context he gave evidence that:

It was not simply a case that a reforecast would be done and that we would simply accept where that reforecast indicated the business may be headed. Instead, a reforecast would be used to consider what “corrective measures” might be taken to steer the business back towards budget. That is why my email refers to “what actions we need to put into play”.

366    Mr Ashby further clarified that the reforecasting process at this point in time only related to the merchandise side. That is, the email was contemplating a merchant reforecast / merchandise KPI, and not a full or approved replan, which would lead to a reforecasting of the P&L including NPAT.

367    I have no reason to doubt any of this evidence.

368    Further, I note that in evidence was a table showing budget vs actual comparisons for sales and BGP up to the end of week 7, showing a negative variance to budget albeit in single digit percentages, whether cumulative or month to date. This was also reflected upon in a document on or around 22 September 2014 titled “September Preliminary Result – variance to budget”.

369    Further, there was an email of 25 September 2014 from Mr Ashby to the EGMs. The email was entitled “Costs”. In the email Mr Ashby asked the EGMs for their views on the outlook for the half, and on opportunities to reduce costs. In the email Mr Ashby also noted that he and Mr Brookes would like to understand this by Monday (i.e. 29 September 2014) “in order to re forecast the half”.

370    The email stated the following:

All, Mark and I have

now completed the review of the September month, with sales $9m under budget and profit under by over $3m.

In addition to the focus on driving the top line, we now need to turn to costs to protect our profit position for the first half.

We have significant cost growth coming over the next few months, and need to reign it in.

Vicki has asked for a forecast, can we please have your views urgently on the outlook for the half, on opportunities to reduce.

Bernie and I would like to understand this all by Monday in order to re forecast the half.

Any questions / suggestions appreciated.

371    In his evidence, Mr Ashby explained that this was a “high-level” forecast, meaning that it was not a detailed merchandise replan and was only an “outlook” conducted without the significant work that would go into a replan. Now the applicant suggests that this email should have caused Myer to consider whether it might have been necessary to warn the market that FY15 was not looking as “rosy” as Mr Brookes had represented it to be two weeks earlier. But the document does not of itself suggest that Myer’s NPAT in FY15 might be less than $98.5 million or even that the budget was unlikely to be achieved.

Summary of the position as at the end of September 2014

372    Several things can be noted about the position as at the end of September 2014.

373    First, there is no evidence to suggest that there was any reforecast of any sort indicating a forecast NPAT of less than $98.5 million let alone materially less than $98.5 million.

374    Second, as Myer points out, Mr Brookes’ specific evidence, by reference to these documents up to 25 September 2014, was that:

At this stage, again based upon the Final FY15 Budget, the fact that we were only two months into the year, with the most important months of December and January to come, and the costs levers and buffers I had available to me, I continued to hold the view that the budgeted NPAT of $107 million was achievable.

375    Third, Mr Ashby also said that at no time during Q1 had he formed the view that Myer could not achieve an NPAT for FY15 higher than or around the same level as FY14, let alone that NPAT for FY15 would be materially lower than FY14.

376    Fourth, the evidence of each of the directors, who in my view were all credible and commercial, albeit that some had better recollections than others, was consistent with the proposition that they did not hold the view during September that Myer’s NPAT for FY15 would be less than $98.5 million. As Myer points out, Ms Brennan’s evidence was that at the board meeting on 10 September 2014 she was “not involved in any discussion to the effect that … the FY15 Budget was unrealistic or was unlikely to be achieved, or that it was in significant doubt, and I did not think these things”. Mr Cornell’s evidence was that he did not recall forming a view at the board meeting on 10 September 2014 that the FY15 budget was “unrealistic or was unlikely to be achieved, or that it was in significant doubt”. Mr Thorn’s evidence was that he did “not recall thinking in September 2014 that the FY15 Budget was unrealistic or was unlikely to be achieved, or that it was in significant doubt and I do not believe that I did”. Mr Myer’s evidence was that he did not recall thinking at the board meeting on 10 September 2014 that the FY15 budget “was unrealistic or was unlikely to be achieved, or that it was in significant doubt”. Ms Froggatt rejected the proposition that the board believed at the meeting on 10 September 2014 that the FY15 budget was unreliable. Mr Thorn’s evidence was that if the ASX approached Myer regarding Mr Brookes’ comment and asked Myer whether it was willing to confirm it, he would have confirmed it. Ms Froggatt’s evidence was to the same effect, as was that of Mr McClintock.

377    In my view it has not been established that Myer was aware or ought to have been aware at any time during September 2014 that its NPAT for FY15 would be less than $98.5 million, let alone that it would be materially less than $98.5 million. I would state the same conclusion concerning Mr Brookes and Mr Ashby concerning what they knew or ought to have known.

378    Let me now turn to the month of October.

OCTOBER – NOVEMBER 2014 EVENTS

379    Let me begin with a draft forecast that was in evidence and attached to an email from Ms Reid to Mr Ashby (with Mr Lauder, Mr Kocovic and Mr Sampson copied in) dated 2 October 2014. That document contained a forecast NPAT of $101 million. The draft document identified a number of opportunities that could increase NPAT beyond $101 million and risks that could decrease NPAT below $101 million that were being considered.

380    Let me set out the email:

Please find the updated draft forecast, which has an npat of $101m for FY15.

This includes

•    * a sales impact in H2, based on the merchandise replan for the 1st half (which is 1% down on their H1 budget). I have applied this to their Winter budget, which results in a $9m reduction against the Board budget.

•    * the forecast has been updated for the sass & bide submission

•    * Mike has provided a preliminary estimate for online – but he wants to review this again in the morning. At this time, I have not included the number in the forecast, but I have called it out in the summary document, and what the impact would be to the consolidated sales and npat. The preliminary estimate is $7m at npat. The assumptions are listed in the document – but essentially this is being driven by a reduction in the sales forecast (FY15 forecast $69m), and the mix of those sales.

Mike is going to do a separate briefing paper for you.

I wasn’t sure from your note below whether you wanted the unidentifed savings included or removed – so I have left them in the forecast, but again I have called them out in the document, and what the impact would be if removed.

381    There are various observations that should be made.

382    First, the document is a draft, which was incomplete and subject to further consideration. Mr Ashby said that this was simply a draft reforecast. Similarly, Mr Brookes’ evidence was that “you’re looking at work in progress, not something that has yet been presented to the board, and the numbers would be pressure-tested by Mark and his team. But this is Vicki Reid’s first cut of what she has been told by the EGM members”.

383    Second, whilst the document had been sent to Mr Ashby, there is little to suggest that Mr Ashby or any other officer of Myer held any view based on this document that NPAT in FY15 would be less than $98.5 million.

384    Third, Mr Ashby’s evidence was that it contemplated that it would or could be followed by action to protect the budgeted NPAT, and that it was not a statement of what anticipated NPAT would be for FY15. Further, Mr Cornell noted in relation to this document:

I can only say in my working experience this is a relatively typical document that gets done within the team to talk about the moving parts, things that are – and the opportunities – and highlighting issues that need to be resolved. And the costs lever is a significant one. So it would depend on how this then went through the management team to the CFO and to Bernie to be able to make other management decisions before forecasts were finalised.

385    Fourth, the NPAT in this draft forecast is $101 million, which is inconsistent with the proposition that Myer had formed a view that its NPAT would be materially less than $98.5 million.

386    Fifth, whilst the draft NPAT of $101 million was before cost savings and risks, it was also expressly said to be before opportunities. The document identified around $15 million worth of opportunities that were not taken into account in the NPAT figure. Of course, if these were added to the draft forecast NPAT figure of $101m, the NPAT might be as high as $116m.

387    Sixth, insofar as the document refers to “unidentified savings”, Mr Ashby’s evidence was that in his experience as Myer’s CFO “unidentified savings” when referred to in internal workings were usually able to be achieved. Similarly, Mr Brookes’ evidence was that “[i]nsofar as the document referred to ‘unidentified savings’, I would have had no reason to think that those savings could not be achieved”.

388    Seventh, the document also noted some downside risk to the $101m figure. These included removing certain savings that had been assumed, which posed a $5.5m risk at the NPAT level, and a risk to forecast from Online, which posed a further $7m risk at the NPAT level. So, there were risks of a similar magnitude to the opportunities that had been identified. The most that can be said is that the draft $101m forecast may have been higher or lower depending on further work done to assess the opportunities and risks identified.

389    Now the applicant’s pleaded case was that Myer had formed an opinion by this time that FY15 NPAT would be materially less than $98.5 million, and that it was the formation of this opinion that constituted its awareness for the purposes of ASX listing rule 3.1. But by its closing submissions, the applicant’s case had shifted. It was said that Myer through its senior executives including Mr Ashby was aware at this time, not of the fact that its NPAT in FY15 would be materially lower than $98.5 million, but of the very significant risk that Myer would not earn greater profits in FY15 than it had earned in FY14.

390    Further, the applicant submitted by reference to this document that once you have got to an NPAT of $101 million in a draft forecast, it is clear that the representation that there are going to be increased profits over FY15 is under very serious threat indeed. Now at the most one might say that by this stage, absent corrective action being taken, achieving an NPAT of greater than $98.5 million may have been under threat. But that is a different thing from what is alleged against Myer, namely, that it knew and had formed a concluded view that NPAT would be materially less than $98.5 million. Further, I would also note the following exchange between myself and the applicant’s counsel:

HIS HONOUR: But the upshot is she [Ms Reid] is now saying a realistic NPAT for the full year is 101 million.

MR O’BRYAN: Yes.

HIS HONOUR: Which is still above 98.5.

MR O’BRYAN: It is.

HIS HONOUR: Yes, yes.

MR O’BRYAN: Yes, it is.

HIS HONOUR: Yes.

MR O’BRYAN: But there are risks identified.

HIS HONOUR: All right.

391    Further, Mr Ashby gave the following evidence concerning the document:

MR O’BRYAN: So your view was there was no occasion to update the market, assuming for the sake of argument – just ask you to assume this; assume that what Mr Brookes had said was taken seriously by people and they were anticipating increased profits for 2015. Is your position that there was nothing in this documentation which would suggest to you a need to advise the market that that forecast might no longer be reliable?---Not in this document; no.

392    Further, some of the directors were also asked about these documents, albeit principally by way of hypotheticals that had problematic foundations. They assumed, contrary to the evidence, that this forecast represented some final or considered view of Myer’s anticipated NPAT and that risks should be deducted from the $101 million figure but opportunities should be ignored. But in any event these were documents that they did not recall seeing.

393    Further, and generally Mr Brookes’ evidence was that this document was a “first cut” and a “work in progress, not something that has yet been presented to the board, and the numbers would be pressure-tested by Mark and his team”. Further, Mr Ashby’s evidence was to the effect that this document was not a statement of what anticipated NPAT would be for FY15 and that the forecast would ultimately depend on input from Mr Brookes and was “not the detailed work required to generate a complete forecast of the kind presented to the Board”.

394    In summary, and contrary to the applicant’s submissions, the 2 October 2014 draft forecast was not “a methodically prepared and carefully considered document which presented a considered view of Myer’s most senior management of Myer’s likely performance for the remainder of FY15”.

CEO board update

395    Further, in or around mid-October 2014, the CEO provided the following board update:

Results August/September

The first two months have been disappointing and poor in a number of ways.

Sales are the main concern and after two months we are below expectations, marginally below gross profit expectations but better than forecast cost control.

Specifically sales are down $19.1m to forecast (0.3% down on last year).

Gross Profit is down $13.1m on budget and $3.2m down on last year.

Costs are up $5.7m on last year, but $4.8m behind expectations (favourable).

Net Profit is nearly $6m behind budget.

The key issues after two months are:

•    MEB’s at $79.9m YTD (Mix up 40 bps at 20.15% up from 19.75%) but 90 bps down on budget. This result includes a $3.8m fall out on womenswear and a $1m fallout in Miss Shop – both against budget.

•    First Margin has not grown

•    Markdowns $1m higher than last year

•    We wrote back the MAIP provision of $3.1m, which assisted our result.

The concern is that the extra pressure on December/January is significant.

The poor performance of MEB’s and specifically women’s wear is a concern with the investments in staff and “design led” resources.

Sales have not met the trend in the last quarter (+2.1% comp growth) and run relatively flat.

The Apparel sales have been disappointing also affecting the mix.

I will provide an update on our actions being taken at the Board meeting, but the Mid-Season sale will be an important driver of Quarter one sales.

396    NPAT was reported as being nearly $6 million behind budget. Although even making that adjustment does not take it below $98.5 million.

Hot Tubs Document of 16 October 2014

397    The applicant has relied on a document circulated internally on 16 October 2014. At 12.01 pm on 16 October 2014, Ms Reid emailed Mr Ashby and Mr Tom Coleman a document which she referred to as “the overview document proposed for tonight’s Hot Tubs meeting”. The document was a working document to be considered at a meeting involving management of Myer that evening. Clearly the document does not reflect the outcome of any management meeting, but is rather a document for the purpose of discussion at such a meeting.

398    Mr Ashby’s evidence was that a high-level forecast without the merchandise replan would have been done at this stage. He said that the document contained a draft or incomplete forecast which was the subject of ongoing work, and which had not yet been discussed by management. He said that “Hot Tub” meetings were forums where corrective actions were taken to steer the business back towards budget. In relation to reforecasts, his specific evidence was that: “a reforecast is followed by corrective measures. [The Hot Tubs] document indicates that H1 was forecast beneath budget, but actions were being considered to not only return to budget but exceed it for H1”. He explained further:

[T]he forecast, P and L forecast had not been completed, and the following pages actually go through the opportunities that address the cost to amend that forecast.

…

This is a document prepared for the purpose of going through and evaluating decisions you’re going to take to try and improve the trading performance of the business. It’s not a conclusive document about where you now expect to land.

399    Mr Brookes’ evidence was to similar effect:

…The Applicant’s Particulars state that this document shows that, as at 16 October 2014, Myer had explicitly identified that it could not maintain an NPAT forecast in excess of its FY14 NPAT. I disagree with this statement. This document indicates a forecast NPAT of $94 million if further steps are not taken. However, further steps were being considered and discussed (including at the ‘Hot Tub’ meetings), and these steps would form a part of any further forecast…

400    In my view this document was clearly a draft to be discussed by management on the evening of 16 October 2014. Now the applicant has suggested that the document was provided to the board at a board meeting on the morning of 16 October 2014. But this was not the case.

401    First, the document was first sent to Mr Ashby at 12.01 pm on 16 October 2014. This is evident from the email sent by Ms Reid. There is no evidence that it was sent any earlier. Indeed the board meeting commenced at 11.45 am that day and before even Mr Ashby had received the document.

402    Second, the document was for discussion purposes for a meeting of management that evening. I agree with Myer that there is no basis to think that a document first sent to Mr Ashby after the relevant board meeting commenced, and which had not yet been discussed by management, would have been provided to the board.

403    Third, the board minutes for the meeting on 16 October 2014 do not record this document or any forecast having been tabled or discussed.

404    Fourth, Myer’s witnesses gave evidence that they do not recall this document as having been provided to the board. So, Mr Brookes’ evidence was that he doubted that this document was provided to the board. Mr Ashby’s evidence was that insofar as other documents (e.g. the “Good, the Bad and the Ugly” email dated 2 November 2014 discussed below) referred to a “Hot tubs cost reductions” document being provided at board meeting, he understood this to be referring to something that Mr Brookes “was going to provide to the Board”, not something that had been provided.

405    Further, even if this document was provided to the board, there is no evidence to suggest that the board approved or adopted any forecast in this document. This is not surprising given that the document contained only current workings which were the subject of further consideration and development by management. Further, it is apparent from the document that management was considering “sales initiatives” and “cost deferrals/reductions”, with cost “opportunities” of around $11 million being listed, which would impact on any NPAT forecast for FY15. Accordingly, all that this document shows is that what had been put up for discussion by management on the evening of 16 October was a possible forecast NPAT of $94m, but with over $11m of opportunities, which opportunities were being considered and which may have led to the forecast being at or close to the original budgeted figure.

406    In summary, the document referred to an incomplete reforecast that was still the subject of ongoing work. Moreover, hot tub meetings were a forum where corrective action was taken to steer the business back toward budget. I agree with Myer that this document did not represent some finalised view of Myer or management as to what its anticipated NPAT would be for FY15.

The board meeting on 16 October 2014

407    As I have said, a board meeting took place on 16 October 2014. Moreover, the board minutes for that meeting do not record the so-called hot tubs document or any forecast for NPAT having been tabled or discussed. Now the applicant correctly refers to a reference in the board minutes to a “forecast” to suggest that a forecast was in existence by this date. But insofar as the minutes refer to a “forecast” in one place, being the first bullet point under the heading “Chief Executive Officer’s Report” stating “August and September have been disappointing, with sales down $19.1m to forecast (0.3% down on last year)”), it appears that this reference may have been an error. It appears that this may have been a comparison against budget. In any case, the reference to forecast only related to sales. So, it may be inferred that any forecast at this stage only related to sales and not to NPAT or other metrics. Further, the reference to forecast was that sales were down $19.1 million against forecast. Finally, I would note that the CFO’s “September FY2015 Financial Board Report” of the 15 October 2014 says that year to date sales were down $19.1 million on budget and $1.2 million (0.3%) below last year. This either establishes that the reference to forecast in the CEO’s report was an error, or establishes that at this time forecast and budget were the same.

408    On another point, I would note that towards the end of the minutes it was stated that “[t]he Board considered whether there were any issues from the meeting requiring disclosure to the ASX, and the Board recorded that there were no such issues requiring disclosure”.

AGM chairman’s speech themes

409    In notes from a meeting with the Chairman on 22 October 2014 at which Ms Buckley, Ms Gunn and Ms Reith were present, it was noted:

When we get into the full year resultsshare price, I have to say disappointing. ‘I need to use those words if we are at anything less than 2 dollars.’

Paul agreed to maintain messaging of FY results.

Re outlook for FY2015, tThere is negative sentiment around about the ongoing costs of running the business.

Are we going to stand by increased profit this year? Analysts are more pessimistic than the Board.

The Board is comfortable putting it out again that we expect profit growth – the AGM is the place to re-state it.

We are more optimistic than consensus, we would expect trading conditions to improve, we acknowledge this is not reflected in the sharemarket.

We will have a better idea at the end of the Christmas period.

Confidence about this? I can’t give too much. The market is entitled to be a bit skeptical.

I can say the Budget is set for a stronger bottom line based on our view of improved profitcompared to FY2014.

410    The reference to “Paul” is a reference to Mr McClintock.

411    Further, in an email from Ms Reith to Ms Gunn and others on 28 October 2014, it was stated:

Unfortunately I don’t have my notes from the meeting with me so can’t cross reference but nothing jumps out at me as missing.

Just a couple of comments though –

- I have real concerns about comment being made on the share price, I think it’s dangerous territory for us to be entering at this point in time. I recognise Paul mentioned it but I wonder if we should counsel against it. Am sure GS will have a view on this.

- Acknowledging that the market is not in agreement with our view of FY15 is highlighting the bear case in my opinion and I think if the Board is willing to state confidence in earnings growth that should be sufficient. Again I recognise this was Paul’s words but I think we should consider counselling against it.

- Something to add – one of the themes that came out in shareholder meetings on Friday was the need to revive foot traffic and give people more reasons to come into Myer stores. The key challenge is top line growth and all our efforts need to be focused on bringing about change that will ‘crack the top line’. This seemed to be well received so might be worth weaving into the speech in some way.

Covenant sensitivity document as at 30 October 2014

412    In evidence was a standard covenant-sensitivity analysis that was provided by Mr Ashby to the audit and finance risk committee on a regular basis. This version was dated 30 October 2014 and was emailed from Mr Ashby to Ms Brennan on this date. The FY15 forecast for NPAT noted in this document was $101 million. I agree with Myer that it is inconsistent with the proposition that management considered that NPAT would be materially lower than $98.5 million for senior management to be sending a document to a director recording a forecast NPAT for FY15 of $101 million.

413    Clearly, this covenant sensitivity evidences that a member of the board, being Ms Brennan was provided with an FY15 forecast NPAT figure of $101 million on 30 October 2014. Moreover, the evidence establishes that it is likely that Mr Brookes either saw the covenant sensitivity document before it was sent to Ms Brennan or had discussed its content with Mr Ashby. Mr Brookes’ evidence was that he more than likely saw the document at some stage. He gave evidence that:

Although I cannot recall this specific document, I would have discussed the FY15 forecast figure in this document with Mr Ashby before it was sent to a member of the Board, and I would not have agreed to a document being sent which contained a forecast figure that did not represent the most up to date and best assessment of management as to FY15 forecasted NPAT…

414    Now the applicant seeks to downplay the significance of this covenant sensitivity document, because its case theory is more consistent with the figures in a draft and incomplete forecast which bore the same date of 30 October 2014 being exhibit A15.

415    In cross-examination of Mr Brookes, the applicant put the different figures in exhibit A15, being an NPAT of $95 million, and in the covenant sensitivity, being an NPAT of $101 million, and suggested that the author of the covenant sensitivity document was unlikely to be aware of the existence of exhibit A15. But this cross-examination confirmed that the author(s) of the covenant sensitivity document were also likely to be aware of exhibit A15. The covenant sensitivity document was produced by Mr Ashby and Mr Lauder (General Manager, Finance), or Mr Lauder based on discussions with Mr Ashby. The document was first sent by Mr Lauder to Mr Ashby by email at 4.27 pm on 30 October 2014. That email records that “[a]ttached is the covenant sensitivity analysis as discussed”. An email from Ms Brennan to Mr McClintock dated 11 November 2014 with the subject line “Fwd: covenant sensitivity”, on which the applicant relied in cross-examination, also records that “Mark [Ashby] and Chris [Lauder] have prepared the attached sensitivity analysis”. So, the evidence suggests that it is likely that Mr Ashby and Mr Lauder were also aware of the draft and incomplete forecast of $95 million included in exhibit A15.

416    So, the likely inference that arises is that the covenant sensitivity document produced for the purpose of being provided to the board was the then best estimate of forecasted NPAT.

417    I note that Mr Brookes also gave evidence that: “The FY15 forecasted NPAT in this document of $101 million is consistent with the view that I continued to hold at this time that NPAT for FY15 would be higher than FY14 NPAT of $98.5 million”.

418    Now the applicant submits that Mr Brookes sought to give undue prominence to the NPAT forecast in the covenant sensitivity sent to Ms Brennan. The first basis on which this submission was advanced is that Mr Brookes would not have recollected the existence of this document if Myer’s solicitors had not identified it for him and asked him questions about it. But I agree with Myer that it is not surprising that a witness in Mr Brookes’ position would not recollect specific documents four years after the events in question unless asked about them by his solicitors. The second basis on which the applicant submits that this document should somehow be discounted is that elements of Mr Brookes’ evidence were shown to be inaccurate. But the so-called alleged inaccuracies in Mr Brookes’ evidence were problematic. First, there was no inconsistency between the affidavit evidence (“I would have discussed the FY15 forecast figure”), which deals with discussions between Mr Brookes and Mr Ashby of the forecast figure, and the evidence in cross-examination (it is “more than likely I saw the document at some stage”), which deals with whether Mr Brookes actually saw the document. Second, Mr Brookes’ evidence that he could not recall whether he saw the document before or after it was prepared does not make anything said in his evidence inaccurate. Third, the fact that Mr Brookes agreed that there was no documentary evidence showing that he received the document does not make anything said in his evidence inaccurate. Fourth, the fact that Mr Brookes cannot now specifically recall seeing the figures in the document does not detract from his evidence that he would have discussed this figure with Mr Ashby, and that he would not have agreed to a figure being provided to a member of the board that did not represent the most up to date and best assessment of management as to FY15 forecasted NPAT.

Draft forecasts as at 30 October 2014

419    As I have said, in evidence was a draft reforecast dated 30 October 2014 being exhibit A15. This document, which was an incomplete draft, recorded a draft NPAT forecast of $95 million. Now several specific points can be noted.

420    First, I agree with Myer that there is no evidence to suggest that the figure in this document represented a current best estimate, let alone a final or reasonably certain forecast, of any member of management let alone senior management as to expected NPAT.

421    Further, when Mr Cornell was asked about such a document, he explained that:

Well, what I can see here is the risks are identified, but it doesn’t really go to what other opportunities and up side there is. And certainly – my experience – when you have nine months of the year to go, there are very often significant cost reductions that can be made. So I think a working document is one thing within the business. It’s what you then consider after all the analysis has been done by the right people. But certainly – they are identifying potential risks. I can see that.

422    And after counsel for the applicant stated that there were opportunities and risks identified in the document, Mr Cornell went on to say that not all opportunities and risks had been identified, and that based on his experience in retail, decisions could be made to remove many millions of costs from the business, and that “at this early state of the year I would still think that there is plenty of opportunity to move the levers”.

423    Second, other contemporaneous documents such as the covenant sensitivity that I have just referred to indicate that management’s then current forecast was an NPAT of $101 million.

424    Third, the final page of the draft document contains $6.543 million of opportunities, which if implemented would take the forecast NPAT to over $100 million. I am not able to conclude that at that stage those opportunities were not realistic.

425    Fourth, a forecast NPAT of $95 million, even if it did represent management’s then current best estimate of NPAT for FY15 did not represent any then current view of the board. Indeed there is no evidence to suggest that it was seen by the board.

426    Now the applicant submits that Mr Brookes “agreed that the 30 October 2014 ‘November Forecast’ was his ‘understanding of the position as at the end of October 2014’”. But that was not his evidence. In response to the question whether removing various items in the draft document, which he had not seen before, would reduce the NPAT to $90 million, and whether that was his understanding of the position as at the end of October 2014, Mr Brookes simply said: “That’s what this document reads, yes”.

427    Further, the applicant submits that exhibit A15, which records a draft NPAT forecast of $95 million, should be “regarded in the same manner as the 2 October 2014 forecast … namely as a methodically prepared and carefully considered document which presented a considered view of Myer’s most senior management of Myer’s likely performance for the remainder of FY15”. There are a number of responses to this.

428    First, this submission proceeds upon an incorrect premise as to the 2 October 2014 draft forecast. There is no evidence in support of the proposition that the 2 October 2014 draft forecast was a methodically prepared and carefully considered document which presented a considered view of Myer’s most senior management of Myer’s likely performance for the remainder of FY15.

429    Second, Mr Brookes gave credible evidence that a draft and incomplete document of this type would not become a document with any status other than a draft for further consideration until it had been completed, reviewed and approved by the EGM, including Mr Ashby, and had been presented to and approved by Mr Brookes. Further, he said that it would not have represented his view of likely NPAT, and would not have been used by Myer as a forecast of its likely NPAT.

430    Third, let me say something about the state of forecasting within Myer by around mid-October 2014. By this time, mid-October 2014, all that would have been done was a high-level forecast without a merchandise replan having been done. Further, as Mr Ashby indicated, all that the forecasts at this point would have represented was a statement of “if we had these numbers, what would it look like”, prior to proper consideration of issues such as costs. Further, as Mr Ashby also said, the forecast P&L “had not been completed”, and what had been prepared “was for the purpose of going through and evaluating decisions you’re going to take to try and improve the trading performance of the business. It’s not a conclusive document about where you now expect to land”.

431    Fourth, exhibit A15 was clearly a draft. The heading of the document is: “November Forecast for FY15: FY15 Forecast P&L – Draft (as at 30/10/14)”. Further, the document was incomplete. Risks to the forecast were described as being preliminary. And opportunities were identified but not yet included in the actual forecast figure. Consistently with this, Mr Brookes gave evidence that the document was incomplete, and was “filtered with a number of what ifs and potentials that are yet to be fully determined”.

2 November 2014 “Good, Bad and Ugly” email

432    The applicant has relied on an email sent by Mr Brookes to the board on 2 November 2014, which was titled “The Good, The Bad and the Ugly” (Good, Bad and Ugly email). Whilst that email notes that Myer’s financial performance in the year to date had not been in line with its expectations, it also stated that, inter-alia:

(a)    “The good part is that sales finished up 9.0% this week …”;

(b)    “List of trading opportunities identified and being worked on as implemented for this Quarter”; and

(c)    “I have more elaborate plans on costs and sales initiatives but have kept this brief”.

433    On 31 October 2014, Mr Brookes forwarded a draft of the Good, Bad and Ugly email to Mr Ashby. The text of the email was as follows:

From:         Bernie Brookes <bemie.brookes@myer.com.au>

To:        Mark Ashby <mark.ashby@myer.com.au>

Date:        Fri, 31 Oct 2014 16:23:45 +1100

…

Draft for board for your review

Bernie Brookes

…

From:        Bernie Brookes

Sent:        Friday, 31 October 2014 4:22 PM

To:        Bernie Brookes

Subject:    The Good, The Bad and the Ugly

The Good.

Great response to our TV and brand launch. I attach a summary of the major comments we have received.

The good part is that sales are up 16.6% this week and even for timing issues (a sale date move) we are still over 7% up. It is driving traffic.

The second good is we have a signed contract from Julie offer to take Chris Colfer’s place at Sass and Bide we will announce on the 22nd November and have a communication plan. I attach Julia’s CV, FYI.

The Bad.

The bad is Octobers result sales were up 61% ($295.1m) for the month but $13m behind budget. Gross profit was $117m in line with last year but down $8.7m on budget.

Costs were $3.3m better than budget and hence NPAT was $3.7m some $3.8m behind budget.

Fortunately $1.5m of the result reflect ‘deal collect’ timing but it is still short $2.3m.

The ‘bad result’ was caused by

•    MEB Mix being behind last year.

•    Poor Womenswear results

•    Poor Concessions sales

•    Poor First Margin

•    Savings in Opex and wages.

•    No MAIP was booked

The Ugly

The Ugly is now the poor profit in Quarter one and the and the pressure on our next Quarter.

For the Quarter

•    Sales $691.6m flat on LY, up 7% comp sales.

•    Gross profit 39.19% ($271m) against last year 39.7%

•    Cost 38.39% a saving of $12m on budget.

•    NPAT loss $16.8m, last year loss to date was $5.5m.

•    NPAT to budget $9.7m short

•    NPAT to forecast $1.5m short

Note forecast is consensus $95m.

Actions taken:

•    Hot tubs cost reductions (full document provided at board meeting) of $6m across all areas.

•    List of trading opportunities identified and being worked on as implemented for this Quarter.

•    Category by category plans particularly womenswear.

•    Overall this is ‘ugly’ and even with $6m of cost reduction we will need the ‘sales start’ to the quarter to continue.

I have more elaborate plans on costs and sales initiatives but have kept this brief.

Thanks

Bernie Brookes

434    On 2 November 2014 at 11.22 am, Mr Brookes sent a modified version of the Good, Bad and Ugly email to Mr Cornell, Ms Judi Cornell, Ms Froggatt, Ms Brennan, Mr Thorn, Mr McClintock and Mr Myer. The text of the email was as follows:

The Good.

Great response to our TV and brand launch. I attach a summary of the major comments we have received.

The good part is that sales finished up 9.0% this week and even for timing issues (a sale date move) we are still over 3% up. It is driving traffic.

The second good is we have a signed contract from Julie offer to take Chris Colfer’s place at Sass and Bide we will announce on the 22nd November and have a communication plan. I attach Julia’s CV, FYI.

The Bad.

The bad is Octobers result sales were up 0.6% ($295.1m) for the month but $13m behind budget. Gross profit was $117m in line with last year but down $8.7m on budget. In percentage terms, GP was 39.6% vs last year 39.9%.

vs Budget costs were $3.3m under and hence NPAT at $3.7m was $3.8m behind budget. Compared to last year costs were up $6.6m, with NPAT down $4.9m

Fortunately $1.5m of the result reflect ‘deal collect’ timing but it is still short $2.3m.

The ‘bad result’ was caused by

i.    -MEB Mix being slightly behind last year, with growth planned for this year.

ii.    -Poor Womenswear results, in MEB’s, Concessions and wholesale

iii.    -This resulted in a poor First Margin

iv.    -Offset by savings in Opex across the company.

v.    -No STI was booked

The Ugly

The Ugly is now the poor profit in Quarter one and the and the pressure on our next Quarter.

For the Quarter -

•    Sales $691.6m flat on LY, up 0.7% comp sales. (down $32m on budget)

•    Gross profit 39.19% ($271m) against last year 39.7% (Budget 40.4%)

•    Cost saving of $12m on budget, but up on last year $12m.

•    NPAT loss $16.8m, last year loss to date was $5.5m.

•    NPAT to budget $9.7m short

•    NPAT to our forecast tabled at the last Board meeting $1.5m short

Note forecast consensus is $95m for the year.

Actions taken:

•    -Hot tubs cost reductions (full document provided at board meeting) of $6m across all areas.

•    -List of trading opportunities identified and being worked on as implemented for this Quarter.

•    -Category by category plans particularly womenswear.

•    -Overall this is ‘ugly’ and even with $6m of cost reduction we will need the ‘sales start’ to the quarter to continue.

I have more elaborate plans on costs and sales initiatives but have kept this brief.

Bernie Brookes

435    The Chairman, Mr McClintock responded to the Good, Bad and Ugly email by noting that “I get the complex message!” (emphasis added). I will refrain from lingering on this characterisation or its possible interpretations.

436    Let me make a number of observations concerning the Good, Bad and Ugly email.

437    The Good, Bad and Ugly email notes that at this time forecast consensus for NPAT was $95 million. This is consistent with the Bloomberg BEst mean for NPAT, which at this time was $94.892 million. But the email does not suggest that at this time Myer’s internal forecast was for an amount less than $98.5 million, let alone for an amount materially less than $98.5 million.

438    Now the applicant’s final version of its case was to the effect that Myer should have disclosed to the market that such a draft and incomplete document, which did not represent the views of its senior management as to FY15 NPAT, identified a risk that NPAT in FY15 would not be higher than $98.5 million. But there is no evidence of any officer holding any such view. Further, the evidence is that Ms Reid, who was apparently the author of some (or many) of the draft documents on which the applicant relies, performed a role that was essentially administrative and did not involve making decisions on how Myer might perform in the future.

439    Let me say something further concerning the Good, Bad and Ugly email and how the applicant puts its case on this aspect.

440    As I have said, on 31 October 2014, Mr Brookes prepared his email entitled “The Good, the Bad and the Ugly”, in which he identified the bad as “October’s result sales were up 61% ($295.1m) for the month but $13m behind budget. Gross profit was $117m in line with last year but down $8.7m on budget. Costs were $3.3m better than budget and hence NPAT was $3.7m some $3.8m behind budget”. The Ugly was identified as “the poor profit in Quarter one and the and the [sic] pressure on our next Quarter”. At that point Mr Brookes identified an NPAT loss for the first quarter of $16.8m, more than three times the Q1 loss in the previous year of $5.5m. Mr Brookes identified that the consensus forecast at that time was $95m which suggests that he, like the board, was benchmarking Myer’s performance for the purposes of its ASX disclosure obligations solely by reference to the consensus forecast, and not by reference to his own representations to the market made in the previous month.

441    At about the same time, the forecast titled “November Forecast for FY15; FY15 Forecast P&L – Draft (as at 30/10/14)” which is exhibit A15 was prepared, being an update of the forecast as at 2 October 2014 and showing a forecast NPAT of $95m for the full year, but again containing unidentified savings and vacancy positions which, if removed, would reduce the NPAT to $90m, and also containing an online risk identified as $6m on page 3. The figures shown on pages 4, 5 and 6 of the November forecast suggest that a profit of no more than $90m might be earned in FY15.

442    It was in the context of exhibit A15 that the final version of “The Good, the Bad and the Ugly” email was sent by Mr Brookes to the directors on 2 November 2014. According to the applicant the circulation of this email ought to have triggered a recognition by Myer that it was necessary at the very least to update the market with the news that it was now highly improbable that Myer’s NPAT for FY15 would be greater than 2014, as had been represented by Mr Brookes, and indeed at that point likely that it would be materially less. At that point, Myer’s own internal documentation suggested that the Bloomberg consensus forecast was $97m and therefore, Myer having prepared internal forecasts which showed likely NPAT in the vicinity of $90m, meant that the Bloomberg consensus forecast was more than 5% above Myer’s best expectations for profit at that time.

443    But instead of announcing anything to the market, despite all of the negative news in the first quarter of FY15 and its internal profit projections showing the unlikelihood of FY15 NPAT above $90m, Myer appears to have thereafter created a series of internal profit projections which “targeted” profit figures at the same level as the budget had originally proposed in July 2014.

444    A good example is the document dated 17 November 2014 titled “FY15 Target: A Quarter 2 Focus”, which I will discuss in a moment, that sets out targets for H1, H2 and the full FY15 which were the equivalent of the NPAT level of those set out in the original budget. But this could only be achieved by adopting assumptions which the applicant submits were unreasonable, that is, that there would be a 3% growth in sales for the balance of FY15, despite the fact that sales had been growing at a much lower rate up to that point and there was no reasonable basis for assuming that the rate would improve. Yet the figures which were targeted in the reforecast document dated 17 November 2014 suggest a total sales improvement over FY14 of 5% in the first half of FY15 and 7% in the second half. The second half was particularly striking because all of the assumptions in the column entitled “H2 latest Merchant Submission” required significantly greater improvements, even over the figures contained in the FY15 board budget, both in the percentage rates of OGP, EBIT and NPAT and also materially larger profit results.

445    The applicant says that most significantly in the reforecast document dated 17 November 2014, the split of sales and NPAT, especially for the second quarter of FY15, was now anticipated to be historically very abnormal. Whereas the first quarter of FY15 had seen a significant decline in the relative proportion of annual sales (down from 22% in FY14 to 20.8% in FY15) and in profit (down from -5.6% in FY14 to -15.5% in FY15), in the second quarter sales were projected to increase as a proportion of the full year’s sales, from the 33.3% achieved in FY14 to 34.1% in FY15, and profits to increase even more dramatically as a proportion of the full year, from the 87.6% achieved in FY14 to 98.3% in FY15. In other words, nearly the whole of the FY15 profit was anticipated to be earned in one quarter of the year alone. Further, this document identified that only $6 million of cost reduction initiatives had been identified at that time, which made it clear that there was no realistic prospect of Myer recovering to a position where its FY15 profit would be greater than FY14. All of these matters were spelt out in the document, where it was also noted that if there were a -3% change on the remaining Q2 merchant reforecast growth rate, this would reduce Myer’s NPAT by $15m compared with the board budget (i.e. NPAT of $92m, which was identified as a 7% decline on the 2014 NPAT).

446    The applicant says that a similar conclusion can also be observed in the forecast tables on 20 November 2014 titled “FY15 Budget – Merchandise Budget”, where an NPAT forecast for FY15 of $90m is shown towards the bottom of the page and Q2 is by this time anticipated to produce 106.5% of the year’s profit. The applicant says that this was an unsustainable proposition having regard to recent history.

447    Further, the applicant says that Myer had many opportunities to explain this situation to its shareholders and to the market, for example at the annual general meeting held on 21 November 2014, but the decision was taken not to do so, despite the fact that evidence existed that consideration was given to addressing the reliability of Mr Brookes’ forecast of increased NPAT in 2015 prior to the annual general meeting. Instead the decision appears to have been taken not to address the subject at the AGM at all.

448    Now I will address some of these points later. But for the moment it is sufficient to note that I am dealing with the Good, Bad and Ugly email and the position of Myer on and prior to 2 November 2014. And at that point I do not accept that the applicant has made good any of its claims.

449    I would note at this point that in respect of the position as at 2 November 2014, Mr McClintock said that:

I do not recall what I thought about the contents of the [Good, The Bad and the Ugly] email at the time. Reading it now, I think Mr Brookes was signalling to the Board that Myer would need to keep costs strongly in check and have a stronger second quarter if it was to achieve its FY15 Budget. Also, reading it now, I do not believe I would have thought that the NPAT figure in the FY15 Budget was unreasonable or unrealistic or that Myer could not maintain an NPAT in excess of the $98.5 million, which was the NPAT for FY14. It was too early in the financial year to be thinking that based on the results to date. In particular, this was because the key trading seasons of December/January and June/July were still to come. Further, as noted above, by this stage my attention was focussed on whether or not NPAT consensus was achievable, not the budget.

450    Further, Mr Brookes gave evidence that as at 2 November 2014, he “still considered … that Myer was likely to either achieve the budgeted NPAT of $107 million or a figure close to this”.

451    Let me proceed further with the chronology.

2 to 17 November 2014

452    On 11 November 2014, Mr Brookes and Mr Ashby had a conference call with analysts. Sales results were discussed for Q1. But Mr Brookes said that “we’re not going to get into profit dimensions of each individual quarter”.

453    The following exchange took place concerning sales, although some aspects were problematic:

Philip Kimber – Goldman Sachs – Analyst

Okay. And then one last one just in terms of -- I know you said momentum improved over the quarter. We were hearing August was a pretty tough month. Did you see that as well in yours? Was that the worst month of the quarter?

Bernie Brookes – Myer Ltd – CEO and MD

Certainly was. September was better than August and October was much better than September. I think the new stores, refurbs -- mainly the refurbishments because we only got two weeks of the new stores. We have been consistent in saying we expect that to -- that momentum to continue.

454    And again the following exchange also took place, which was problematic:

Grant Saligari – Credit Suisse – Analyst

Yeah, okay. Just stepping back from the detail -- thanks for the clarification though -- just stepping back from the detail, just two points would help me.

I guess when you look at the numbers as they’re coming through, are they where you’re expecting the business to be generally? Because there seem to be quite a few moving parts with obviously the stores coming in and out and the new stores and the refurbishments.

So just to get your view on where the business is at the moment and whether that’s generally tracking to your expectations.

Bernie Brookes – Myer Ltd – CEO and MD

I think the first point I’d make is the momentum is in line with our expectations. So the momentum coming into October very, very good. We’re a little soft below expectation in womenswear and we’re a little soft in Queensland and Western Australia (inaudible) as well.

But August was weaker , September we gained and October was very strong driven by the mid-season sale. And so I think the good news is it’s in line with our expectation in regard to the momentum gaining and the stores coming back online. But the quarter itself a little down in womenswear is not where we want it to be and we’ll see hopefully quarter two as a big one for us.

455    Further, in a board update prepared by Mr Brookes in mid-November 2014 it was said:

Sales & profit update

Sales over the last two weeks have been plus 9% then minus 5.7%, so very erratic.

October’s result sales were up 0.6% ($295.1m) for the month but $13m behind budget. Gross profit was $117m in line with last year but down $8.7m on budget. In percentage terms, GP was 39.6% vs last year 39.9% vs. Budget 40.8%. CODB were $3.3m under budget. NPAT at $3.7m was $3.8m behind budget. Compared to last year costs were up $6.6m, with NPAT down $4.9m

456    Further, in an “Investor Relations” Report prepared by Ms Gunn and Ms Reith on 11 November 2014, “Bloomberg consensus” was reported at $97 million for NPAT, although in terms of Myer’s own analysis of broker forecasts, the range was from $82 million to $104 million, with the median of $92 million.

457    I would say now that there was a lack of clarity as to the methodology used and how to explain the relevant discrepancies, other than the obvious point that Bloomberg may have used a different set and weighting for its analysts. Bloomberg screenshots in evidence for other time frames hardly clarified the matter with any precision.

458    Further, in evidence is a draft forecast dated 13 November 2014. Various figures are reported. But let me set out the figures for Myer itself:

459    Let me linger on these numbers at this point and observe the following.

460    First, the forecast NPAT for FY15 was $92 million. This was well south of the actual NPAT for FY14.

461    Second, 104.4% of NPAT was expected to be earned in Q2. In my view this was quite unrealistic.

462    Third, even to achieve the metrics described in my first and second points, the percentage sales increases for the balance of FY15 were very optimistic to say the least. And this is all against the modest to poor result for Q1.

463    Fourth, reinforcing the NPAT of $92 million is the P&L for FY15 reported in a document dated 14 November 2014 titled “Revised Forecast FY15: Quarter 2 Focus” which forecast an NPAT of $91 million, again well south of the FY14 NPAT of $98.5 million.

17 November approved reforecast

464    Myer says that none of the identified documents prior to mid-November nor any evidence from any witness is consistent with a submission that at some point in time on or before mid-November Mr Brookes or anyone else let alone any of the identified officers on whose knowledge the applicant bases its case, had formed the opinion that Myer’s NPAT in FY15 would be materially lower than $98.5 million. Now that may be so.

465    Further, Myer says that reference to documents prepared shortly after mid-November demonstrate that it was not the case that prior to mid-November 2014 Myer had concluded or formed the view that its NPAT would be materially less than $98.5 million. Now that may be so.

466    Let me now turn to the 17 November approved reforecast titled “FY15 Target: A Quarter 2 Focus”.

467    The most relevant page contains the following table:

468    Myer says that the important line to focus on is that which refers to “ACTUALS to wk16 + APPROVED REFORECAST”. The figure for this line is NPAT of $100 million before actions, and NPAT of $107 million after actions. It is therefore apparent that what is being set out is a reforecast based on and having regard to actual results to week 16 (week 16 was the week ending 15 November 2014) and an “approved reforecast” for the remainder of the year.

469    The split of the forecast NPAT of $100 million (before actions) is recorded as follows (with a closer screenshot of the notes the bottom of the table included):

470    The third line shows that NPAT for H1 was forecast at $73 million, and NPAT for H2 was forecast at $27 million. There is further detail on the H2 figures, noting that the sales, markdowns and first margin rate “are based on latest merchandise submission”.

471    The document then includes other analysis based on “targets” or “scenarios”. One scenario adds 3% growth on the merchandise reforecast. If this assumption is adopted, then it can be seen that NPAT would increase to $108 million. Mr Ashby conceded in cross-examination that the NPAT figure of $108 million was just a scenario. Another scenario assumes a 3% sales decline compared to the merchandise reforecast. If this assumption is adopted, then it can be seen that NPAT will decrease to $92 million.

472    According to Myer, what is clear from the document is that these two figures, namely, $108 million and $92 million, are scenarios or “sensitivity analyses”. But the actual NPAT forecast at this time, prior to actions, in this document is $100 million.

473    According to Myer, this document is inconsistent with the proposition that prior to this time Myer’s expectation for FY15 NPAT was in fact for some amount below $98.5 million, let alone that it knew that FY15 NPAT would be materially lower than $98.5 million.

474    Now the applicant contends, by reference to this document, that Myer created internal profit projections which “targeted” profit figures at the same level as the budget, and which were not therefore forecasts of anticipated profit. But according to Myer, the difficulty with that submission is that it fastens upon parts of the document that set out scenarios and analysis as to what would be required to make certain “targets”, whilst ignoring that part of the document which clearly contains the then current forecast of NPAT of $100 million, which, in comparison with the draft and incomplete documents earlier referred to by the applicant, can aptly be described as the then current best estimate of NPAT in FY15, being based as it was on actuals to week 16 and an approved reforecast for the remainder of the year.

475    Further, insofar as it is suggested that the figures for Q2 in this document were overly “optimistic” or were unreasonable because of Myer’s performance during Q1, according to Myer Mr McClintock explained that:

The – well, because the second quarter is a – is a set of business judgments all – all of its own. The actual trend that you get in August, September, October doesn’t tell you very much about November, December and January. So the judgment calls that we made about the strength of those months that we made back when the budget was formed – we didn’t think that the first quarter really seriously undermined our view of what we could achieve over that Christmas period. You know, we had a lot of new plans, the Giftorium and so on, where both management and ourselves believed that – that we could make the difference, and, gain, it’s a very small difference you are talking about. It sounds big, but – but, you know, in a $3 billion business, one per cent is $30 million. You know, you can turn these businesses very, very quickly.

19 November 2014: Board meeting

476    There was a board meeting on 19 November 2014. The minutes for this meeting do not record any reforecast being tabled. It would seem that a full or approved reforecast had not been completed by this time, let alone that one had been tabled at the board meeting.

477    It was put to Mr McClintock that the 17 November approved reforecast may have been presented to the board at this meeting. But he said that this paper would not have gone to the board, and that if it had gone to the board, it would have been in the board pack. There is no documentary evidence to suggest that this document was in fact provided to the board.

478    Further, the applicant did not put to any other of Myer’s witnesses that the 17 November approved reforecast was presented at this board meeting.

479    But what is interesting is that at this board meeting Mr Ashby’s October FY15 Financial Board Report was tabled. The minutes record the following:

The Chief Financial Officer’s Report was taken as read. The Board noted that:

•    October sales were $295.1m, $12.8m (4.2%) below budget and $1.8m (0.6%) above last year. Comparative sales were up 0.74%.

•    The Mid Season Sale event ran for twenty-five of the thirty-five days in the month generating sales of $223.8m. On a like-for-like twenty-five days excluding new and closed stores it traded up $6.5m (3.1%) on last year’s event.

•    Operating Gross Profit was $117.0m, $8.7m below budget and $130k below last year.

•    The Operating Gross Profit rate was 39.64% to sales, down on budget 40.81% and last year 39.92%.

•    CCODB for October was $100.1m (33.91%), down $3.3m on a budget of $103.4m (33.56%) and $6.6m above last year $93.5m (31.87%).

•    NPAT was a profit of $3.7m, $3.8m (50.47%) below budget and $4.9m (56.95%) below last year.

•    The store metrics for October were discussed, and it was noted that conversion is down.

•    The October online statistics were discussed by the Board.

•    The sensitivity analysis for H1 was discussed in detail.

480    The CFO’s report stated in the summary:

Summary of the Month

October sales were $295.1m, $12.8m (4.2%) below budget and $1.8m (0.6%) above last year. Comparative sales were up 0.74%.

Mid Season Sale event ran for twenty-five of the thirty-five days in the month generating sales of $223.8m. On a like-for-like twenty-five days excluding new and closed stores it traded up $6.5m (3.1%) on last year’s event. (Note: Total event ran for twenty-six days generating sales of $233.8m. On a like-for-like twenty-six days excluding new and closed stores it traded up $6.6m (3.0%) on last year’s event).

Operating Gross Profit was $117.0m, $8.7m below budget and $130k below last year.

•    Against budget impacted by sales volume down $12.8m. Myer Exclusive Brands represented 22.12% of the sales mix down 169bps against budget of 23.81%. Markdowns represented 11.23% of sales up $812k (73bps) against budget 10.50%.

Operating Gross Profit rate 39.64% to sales, down on budget 40.81% and last year 39.92%.

CCODB for October was $100.1m (33.91%), down $3.3m on budget $103.4m (33.56%) and $6.6m above last year $93.5m (31.87%).

•    Result against budget impacted by MAIP down $1.4m not provided for in October, Merchandise and Marketing down $1.1m impacted by Visual Merchandise costs still to come $564k.

•    Against last year Store Occupancy up $870k impacted by increased rental costs for Indooroopilly post refurbishment $426k and Emporium $353k. Other Store Costs up $1.8m, with online fulfilment costs (net of income) up $1.1m and pre-opening costs up $659k comprising Mt Gravatt and Joondalup. Support Office Costs up $3.8m with IT up $1.1m comprising $511k in salaries due to increased headcount and $437k increased across licence fees and data storage costs. CEO Projects up $2.0m, inclusive of $1.5m advertising costs relating to ‘find wonderful’ rebranding.

NPAT was a profit of $3.7m, $3.8m (50.47%) below budget and $4.9m (56.95%) below last year.

Year to date sales are $691.6m, down $32.0m (4.4%) on budget and $556k (0.1%) above last year. Comparative sales are up 0.65%. NPAT is a loss of $16.8m, $9.7m (137.8%) below budget and $11.2m (200.6%) below last year.

481    It also stated:

Myer Holdings Year To Date Summary

Sales are $691.6m, $32.0m (4.4%) below budget and $556k (0.1%) above last year.

Operating Gross Profit is $271.0m (39.19%), $21.6m below budget of $292.7m (40.44%) and $3.3m below last year $274.3m (39.70% to total sales).

Cost Of Doing Business is $265.5m (38.39%), $7.8m below budget of $273.4m (37.78%) and up $12.3m against last year $253.3m (36.65%).

Earnings Before Interest and Tax is a loss of $18.2m, which is $13.6m below budgeted loss of $4.6m and $16.0m below last year loss $2.1m.

Net Profit After Tax is a loss of $16.8m, $9.7m below budget and $11.2m below last year.

482    Further, on 20 November 2014 another draft P&L was produced, reporting the following figures including a forecast NPAT of $90 million:

483    This was similar in format to the draft forecast produced on 13 November 2014 that I have set out earlier. I should note that I did not get to the bottom of who prepared these draft forecasts and for what use or purpose.

484    On 21 November 2014, Myer held its annual general meeting. The Chairman made an address, but said nothing concerning likely NPAT for FY15. He said:

Looking to the future

I would like to comment briefly on our priorities for the year ahead.

As we move into financial year 2015 we expect to begin realising the benefits of recent investments and a number of strategic initiatives. We see this very much as a time of opportunity and will continue to invest in the important areas of omni-channel, our people, Myer Exclusive Brands, customer service innovation, and refreshing the Myer brand.

It is important to note that in our exhaustive research over the past few years, the loyalty and affection for the Myer brand continues as one of our greatest strengths, and this is something we will be building on as we evolve our strategy.

We are proud of the initiatives we are undertaking to set us up better for the future, initiatives such as Giftorium which are designed to revive foot traffic and give people more reasons to come into Myer stores or shop with us online.

Our clear aim is to position Myer at the forefront of the rapidly changing and competitive retail environment. We look forward to leveraging the experience and insights of our new executives combined with the experience of the leadership team as we evolve the strategy.

We remain confident in the strength of Myer, the quality of our team and in our ability to capitalise on the significant opportunities ahead.

Before I hand over to Bernie, I would like to show you a video that encapsulates some of the key initiatives and areas of focus for the business over the past 12 months.

485    In my view and at this time, Myer ought to have corrected the representation made by Mr Brookes on 11 September 2014.

486    It should have stated that its NPAT for FY15 was not likely to be materially above the FY14 NPAT.

487    Indeed, if Myer is to be taken at its word that it was tracking Bloomberg consensus in terms of its market disclosure obligations, on one view it should have also said that its forecast for NPAT FY15 was not materially different to the Bloomberg consensus, which at the time was down in the depths around $91 million (see the Investor Relations report dated 28 November 2014).

488    Let me make a few points as to why I have chosen 21 November 2014, notwithstanding Myer’s points concerning the 17 November approved reforecast.

489    First, in terms of the failure to correct concerning the misleading or deceptive conduct case, it seems to me given the 20 November 2014 draft forecast and other information in Myer’s possession at that time that Myer ought to have known that the 11 September 2014 representation was no longer sustainable. This is fortified by the lack of any convincing explanation of Myer concerning the 20 November 2014 draft forecast.

490    Second, I very much suspect that Myer chose to keep all balls in the air so to speak and to deliberately refrain from expressly crystallising its views as to the likely FY15 NPAT in an endeavour to get beyond Myer’s annual general meeting so that the Chairman could avoid any detailed or embarrassing interrogation on these matters.

491    Third, in terms of whether any relevant opinion was formed as at 21 November 2014 to the effect that FY15 NPAT was not likely to be materially above the FY14 NPAT, I have no direct evidence of this. But I am prepared to infer it for the purposes of the s 674 case. Indeed and at the least, if a minimum threshold for materiality is equal to or greater than 5%, the $100 million NPAT in the 17 November approved reforecast is not materially above the FY14 NPAT of $98.5 million.

DECEMBER 2014 – MARCH 2015 EVENTS

492    It was not until 9 December 2014, and conveniently after the annual general meeting, that the first reforecast of NPAT was completed and on this date presented to the board.

493    The evidence as to forecasting NPAT after this time as set out in reforecasts tabled at Myer’s board meetings is, in summary, as follows:

(a)    9 December 2014: $92m;

(b)    22 December 2014: $89m;

(c)    5 January 2015: $90m;

(d)    21 January 2015: $90m;

(e)    9 February 2015: $90m;

(f)    27 February 2015: $91m prior to one-off strategic review costs, and $87m after strategic review costs; and

(g)    18 March 2015: $75m to $80m.

494    In my view, given that Mr Brookes had made the 11 September 2014 representation, it should have been corrected by disclosing by no later than the said dates such likely NPAT figures putting to one side sub-paragraph (g).

9 December 2014: The first reforecast presented to the board

495    Work occurred on a full reforecast during the latter part of November and early December.

496    On 8 December 2014, at 5:59pm, Mr Ashby sent an email to Mr Brookes which attached an updated forecast. The forecast shows that as at this time the full year forecast for NPAT was $98 million.

497    The next day a board meeting occurred. The minutes record that “The FY15 full year forecast was discussed by the Board”. This is the first occasion on which a full year forecast is recorded as having been provided to the board.

498    It is evident that at some time after 5:59pm on 8 December 2014 the full year forecast was updated to include a forecast NPAT of $92 million.

499    According to Myer, this is consistent with Mr Ashby’s evidence that the first NPAT forecast completed and presented to the board was on 9 December 2014, and that work conducted prior to this time and earlier draft documents were not the detailed work required to generate a complete forecast of the kind presented to the board. Further, he thought that it was by the first week of December that “we had come to the conclusion that we were going to be down on last year”.

500    There are several things that can be noted about this reforecast, and the position at this time.

501    First, Myer says that it was not put to any of the directors that this figure of $92 million represented their final or concluded view as to what NPAT would be in FY15, or that it was sufficiently certain given the impending Christmas trading period such that a disclosure should have been made based on this reforecast.

502    I would say now that I reject such an artificial submission of Myer. That figure was sufficiently certain and considered that it ought to have been disclosed. At the least by this time there was a failure to correct the 11 September 2014 representation. But in my view there was a breach of the continuous disclosure requirements by this time. At the least Myer was aware by 9 December 2014 that FY15 NPAT was likely to be materially less than FY14 NPAT.

503    Second, at this time, Myer says that consensus however it was calculated was not materially different from the forecast figure of $92 million. So, for example:

(a)    the Bloomberg BEst mean was $91.308 million;

(b)    the Bloomberg BEst median was $90.7 million;

(c)    the Bloomberg consensus as recorded in Myer’s most recent investor relations report was $91 million; and

(d)    the median and the average of the 12 broker forecasts recorded by Myer was each $89 million.

504    So what? In my view this is no defence to any of the applicant’s alleged contraventions, although it may be relevant to causation and loss and damage.

505    Third, Myer says that the NPAT forecast of $92 million was approximately 6.5% below $98.5 million. But in my view that was material as it was greater than 5%.

506    Fourth, Myer points out that the forecast noted that: “December/January sales performance remains critical”. Further, it noted that there was scope to increase the forecast figure by extending costs actions taken in H1 into H2. And that there was scope to extend the types of cost savings implemented in H1 into H2 is evident from the sensitivity analysis and the comment that “Actions to protect full year NPAT are ‘ready and able’ but will carry operational and strategic risk”. It is also evident from subsequent documents showing the contemplation of and implementation of additional actions. For example, the forecast for 9 February 2015 shows that the recruitment freeze and a reduction in project opex were applied to H2 when those measures were not seen as necessary on 9 December 2014. These cost reductions for 9 February 2015 are referred to in the board minutes; see the third dot point under the heading “Forecast”. The forecast also noted that “the next 8 weeks remain critical to full year earnings guidance”.

507    Now all of this may be so. But it seems to me that the likely position was clear. On that basis the likely position ought to have been disclosed particularly given the context of the 11 September 2014 representation having been made.

508    Fifth, a sensitivity analysis was presented in the document which showed the position in three different scenarios where there was a falloff in sales growth and/or the OGP margin assumption, and:

(a)    what that would mean for NPAT if no costs actions were taken; and

(b)    what costs actions would need to be taken to retain NPAT at or around the $92 million level.

509    Sixth, the sales forecast for H2 was based on the latest merchandise submission.

510    Mr Ashby explained that the sensitivity chart was to show the board that if sales went down, what actions would be required if the board wished to seek to hold NPAT at about the level of $92 million. As Mr Ashby said, the sensitivities were prepared:

Because I was anticipating questions from the board to say, “All right. If sales come off, what cost actions could you take,” and to demonstrate also that we had looked to say, “Look, if costs come off, sales come off, if we’re incorrect in the forecast, then if you only have two per cent growth, then if we wanted to hold that same number, this is the type of actions you would have to undertake.”

511    Seventh, the applicant submitted in relation to this document that the principal objective of its author was to maintain or provide to the board a forecast of FY15 profit at or above the level of Bloomberg consensus so that Myer did not have to make a continuous disclosure update to the market. Now Mr Ashby denied that the reforecasts were created in this way, but in my view there is force in the applicant’s submission. But Myer says that even if they were, there is nothing untoward about Myer managing its business so as to meet or even exceed the expectations of its investors. I tend to agree.

512    Eighth, in cross-examination Mr Brookes said that the costs actions listed could be extended into H2 dependent on trading through the end of Q2. That is, for example, the recruitment freeze could be extended which would result in a similar cost saving ($2.5 million) in H2. This had the effect that the forecast, if those actions were not extended into H2, was $92 million. In this context, Mr Brookes’ evidence was that:

The 9 December Forecast did not have factored into it cost actions which had been taken in H1 and which could be extended into H2. Those cost actions are listed on page 4923, and if implemented had the potential to lead to a forecast NPAT in excess of $92 million and also in excess of $98.5 million.

513    Further, Mr Brookes’ evidence was that:

Because of the ability to adopt these cost savings and given that much would depend on trading during the next 6-8 weeks, it was my expectation that NPAT of more than $98.5 million was still achievable, and that Myer was likely to achieve NPAT of greater than the $92 million included in the forecast, and likely in excess of $98.5 million.

514    Now Myer says, brazenly in my view, that the evidence is that as at 9 December 2014 Mr Brookes continued to anticipate likely NPAT of more than $98.5 million. In my view there is an air of unreality to this submission. Absent extra-ordinary steps or wishful thinking, it seems to me that the view was that the NPAT was likely to be $92 million.

515    Ninth, around this time, the full results for November became available. These are recorded in the “November FY2015 Financial Board Report”. November sales were $3.4m (1.4%) above forecast which, given the date of this document, must be the recently completed forecast of the same date. Sales were $11.5m (4.7%) above last year, and comparative sales, that is, sales ignoring the new stores in the network, and which is also referred to as like for like (LFL) sales, were up 4.1%. OGP was also up $724,000 against forecast, and up $3.3m against FY14. CCODB were $740,000 below forecast, that is, better than forecast. NPAT was a loss of $2m, which was 36.96% better than forecast. The report then discusses the month of November in the context of Myer’s Outlook for FY15. It notes that there was a positive trend in the last two weeks of November with sales exceeding budget and positive impacts from the launch of Myer’s new branding (“Find Wonderful”) and Christmas campaigns (including “Giftorium”).

516    The minutes of the board meeting on 9 December 2014 are revealing on another aspect which I should refer to at this point.

517    It was noted as part of the CFO’s report that:

•    The FY15 full year forecast was discussed by the Board;

•    The fully year revised forecast is slight above consensus;

•    The key sales initiatives support the assumptions for growth through the key trading period;

•    The Board discussed in detail the current trading conditions, and the current financial results. The key trading period ahead will be very significant in assessing the full year position. The Board agreed it would have telephone conferences later in December and in January to discuss the results.

518    Attached to these minutes were minutes of a meeting on 8 December 2014 of the Audit, Finance and Risk Committee. On the topic “15. Continuous Disclosure” it was noted:

The Committee noted that there were no disclosures to be made to the ASX from the meeting.

519    Now all of this was problematic. First, Myer recognised that its most up to date forecast gave an NPAT “slightly above consensus”. But this was all well south of $98.5 million. Second, Myer wrongly thought that it did not have to make any disclosure or correction of what Mr Brookes had said on 11 September 2014 because there was no material difference between its own forecast and consensus.

22 December 2014

520    The next forecast that was prepared and provided to the board was dated 22 December 2014.

521    This document indicated that the forecast at this date when regard was had to proposed costs actions to address the decline in sales was $89 million. The board minutes noted that “the forecast for FY15 is NPAT of $89 million”.

522    Now the document also recorded a forecast of $68 million prior to cost actions being taken. But it was not suggested to any witness that $68 million in fact represented Myer’s anticipation of what its NPAT in FY15 would be, or that the identified $21 million of cost actions was unreasonable or unrealistic. For example, Mr Brookes gave evidence that he would have been involved in working with Mr Ashby to determine these cost savings. It was not put to him that this was not properly or reasonably done, nor that the cost savings did not form part of his realistic view as to the full year forecast.

523    Let me discuss another matter. It was put to Mr Ashby that the $89 million figure for NPAT was “reverse engineered” simply to get as close as possible to Bloomberg consensus and avoid the need to make an announcement. Mr Ashby refuted that allegation. As to this “reverse engineering” submission that the $89 million was not in fact a genuine forecast of Myer’s NPAT in FY15, several points can be noted.

524    First, it was never specifically alleged that the cost savings which formed part of the forecast were unreasonable or unrealistic.

525    Second and significantly, the forecast as at 22 December 2014 was around the start of the most significant two weeks of trade for Myer for the entire year. Given this, and reflecting this, the board minutes for 22 December 2014 recorded as follows:

The Board also noted that the next 2 weeks of trade can have a significant impact on the result, and that last year, the week before Christmas and the first week of the stocktake sale had a significantly positive impact on the results.

The Board considered carefully whether it had information that should be disclosed to the market. The Board concluded that any statement in relation to results and trading would have a high degree of uncertainty at the moment and would be premature, given the impact that the next 2 weeks of trading could have. It would be extremely difficult and potentially misleading to provide any type of guidance at this time, when there are two very significant weeks of trade ahead.

The Board concluded that it would not be prudent to make any statement to the market at the moment. The Board will have a more reliable basis on which to assess the results on 5 January and will discuss trading at that time and reassess whether a statement should be made.

526    Given that there would potentially be a need to make an announcement in early January if the result for the critical two weeks of trading was less than expected, management prepared an initial draft of an ASX announcement for early January if an announcement was required.

527    On or about 23 December 2014, the following draft statement was prepared by Ms Lynch and sent to Mr Brookes and Mr Ashby:

528    As Mr McClintock explained when the draft document was drawn to his attention:

I don’t think that’s in any way unusual. In looking at the judgment calls we were making, the speed of which they were being made, the team, obviously, prepared itself for whatever should take place, and this would have been the sort of announcement that you might have made if in fact you had felt that there was a disclosure requirement, which, the board resolved – on the advice of management, I might say – there was not.

529    Mr McClintock accepted after saying this that the said advice of management was based upon market consensus not being too far from what was expected. Similarly, Mr Brookes’ evidence was that whilst he did not specifically recall asking for the draft to be prepared:

That doesn’t say that I hadn’t asked for the statement to be prepared. I don’t recall getting it prepared but, again, in line with being prudent in case January was a disappointing month or the board decided at the January board meeting to make an announcement, we wanted to be well prepared, and that’s not an uncommon thing. We prepare a number of draft statements accordingly.

5 January 2015

530    Given the importance of trading in late December and early January, the next board meeting took place on 5 January 2015. For the purpose of this meeting a further board update/forecast was prepared. This document summarised trading results over the period between 22 December and 5 January. Under the heading “Latest December/January view” it stated: “1. December month sales finished +$5m against prior sales forecast.”

531    Accordingly, it is apparent that December in total finished ahead of the forecast prepared on 22 December 2014.

532    The document then noted that: “2. Week 23 trend continued – sales up $9m (+11.4%) on last year vs forecast (+3.9%) …”. Week 23 is the first week in January.

533    So, for December as a whole sales were up on forecast, and that trend continued, but even more positively, into the first week of January. This was stated expressly in the document: “An improvement against the trends of weeks 3 and 4 of the December month and has continued into week 1 of January”.

534    Further, it was noted that the December actual results were at the NPAT level $6 million better than the December forecast. In the document it can be seen that the full year NPAT forecast without any actions was at $74 million. But a forecast, with actions, of $90 million was set out. This forecast as compared to the $89 million forecast as at 22 December 2014 had less risk because it included lower cost reductions.

535    The board minutes for the meeting on 5 January 2015 recorded that, inter-alia:

MA stated that the December result is close to being finalised and that trading has been positive. The gross profit rate has been good, and there have been fewer markdowns. The sales trend over the last 21 days has been 9.1% above last year. Sales are trending well, and subsequent to 19 December 2014, the forecast sales have been achieved.

Based on the current forecast, we expect the first half result will be NPAT of between $60m and $65m (v last year H1 NPAT result of $81m). Further, the full year forecast NPAT is $90m, with cost actions, although the full year forecast is still being finalised. The full year Bloomburg [sic] consensus NPAT is $90m. It was noted that there is no consensus number currently for the half, only for the full year.

536    So at this time Myer’s internal expectation as to FY15 NPAT was $90 million.

537    I should note at this point that it is not in doubt from the chronology that I have set out that Myer appears to have abandoned its budget no later than 9 December 2014.

538    Let me say something further about the 5 January 2015 meeting.

539    The Myer board received an update in advance of its meeting on 5 January 2015. This document showed that the December NPAT was $49m, 5% below the previous year, and the then current FY15 NPAT forecast was $74m, which the document suggested could be brought up to $90m with actions assuming $16 million worth of additional actions were taken in the second half. Those actions included a $5 million reduction in marketing spend, a $5 million reduction in “discretionary opex” and a $3 million “continued recruitment freeze to H2”. It was noted that “[t]he second half cost reductions are reasonable and can be achieved to protect the year forecast”. The “year forecast” referred to is presumably the Bloomberg consensus because the cost reductions were necessary in order to bring the anticipated FY15 current forecast profit up from $74 million to $90 million. There was a breakdown of the then budgeted $74 million NPAT for the year.

540    At its meeting by telephone on 5 January 2015, the board minutes record that the board noted this paper and that first half NPAT would be between $60m and $65m, compared with the previous year’s $81m. The full year forecast NPAT was noted as $90m with cost actions “although the full year forecast is still being finalised”. The full year Bloomberg consensus NPAT was reported to be $90m. The board minutes record that the board “considered carefully whether it had information that should be disclosed to the market. The board concluded that given the positive sales and results, and the current forecast NPAT result being in line with the Bloomberg consensus, an announcement was not required to be made to the market at this time”. Accordingly no announcement was then made.

541    In my view this decision not to make any announcement was incorrect.

21 January 2015

542    The next forecast was dated 21 January 2015, and there was a board meeting the same day at which the forecast was discussed.

543    The 21 January 2015 forecast recorded that sales in Week 24 were again better than forecast (up $2 million / 2.8%), as were sales in Week 25. Consistently with this, the forecast noted that “January trade has continued to improve our previous forecast position”. In this document the full year forecast without cost actions had increased to $76 million, meaning that an NPAT of $90 million could be achieved with even less cost actions thereby further reducing risk. The executive summary of the document records the following two matters.

544    First, it stated that “[t]he forecast assumes growth of 3.3% on last year for the last week of the half. With January to date up 7.6% on last year; 3.3% for the remaining week should be achievable”. Myer’s witnesses were not cross-examined to suggest that this was not a reasonable forecast.

545    Second, it stated that “[t]he second half cost reductions are reasonable and can be achieved to protect the full year forecast”. Myer’s witnesses were not cross-examined to suggest that the cost reductions in H2 were not reasonable or achievable.

546    Before the board meeting, Mr Brookes sent an email to the directors in the following terms:

Our belief is that we have no need to disclose any updates to the market out of our normal cycle on the following grounds.

1.    Consensus is now below $90m. Our forecast shows $90m with even less cost reductions than prior view presented to the Board (cost in half two is now to be reduced by $14m not $21m.

2.    January trade is up 5% on last year and 3% ahead of forecast with good momentum.

3.    Split of 68% average in first half profit is in line with this year but 2014 was a one off.

4.    Sales for Q2 will be 2.5% up significantly better than half one of .08%. Half two forecast is 1.55% only.

5.    The analyst first half forecasts will not be issued until between our March announcement but the one issued has first half of $64m (on forecast of $63.6m).

6.    The first half forecast has already moved from $58m to $63m and is strengthening.

7.    Based on Marion’s paper with limited guidance and nil first half consensus last year 1st half was $81m and full year $99m. This year will be “north” of $63m (half one) and full year $90m.

547    I would note at this point that point 3 of that email was quite incorrect in terms of the relevant split.

548    The board minutes for 21 January 2015 recorded that “the Bloomburg [sic] consensus NPAT figure is currently $90m, which is in line with the FY2015 NPAT forecast with cost actions, although the full year NPAT forecast is being finalised”. In relation to the potential need to make a disclosure, the board noted, inter-alia, that “a statement at this time may also cause confusion to investors, given the positive sales trend”. But so what given the fact that the 11 September 2014 representation had been made. There should have been a disclosure which corrected the 11 September 2014 representation.

9 February 2015

549    The next forecast was presented at a board meeting on 9 February 2015. The minutes for the meeting record that:

Forecast

•    MA made a presentation to the Board on the NPAT forecast for the full year and the Board discussed it in detail.

•    The Board considered the H2 forecast. The forecast assumes growth on last year of 3%, and that cost reductions previously discussed with the Board are implemented. This then results in a full year NPAT forecast of $90m.

•    MA discussed the second half cost reductions, including the reduction in marketing spend, the recruitment freeze, and the operating expenditure reduction. MA noted that the reductions are reasonable and achievable.

•    The Board discussed the H1: H2 NPAT split, and noted that based on the current forecast, whilst the split is different to last year, it is in line with the historic split over the past 5 years, being a split of two thirds: one third.

•    The Board noted that the Bloomberg NPAT consensus for the full year is $88m.

•    The Board considered whether it had information that should be disclosed to the market, and concluded that given that the current forecast full year NPAT result is in line with the Bloomberg consensus, an announcement was not required to be made to the market at this time.

550    The forecast itself records that the full year forecast of $90 million remained unchanged from the 21 January forecast. It was noted that the Bloomberg consensus was $88 million.

551    I would note at this point that some of the statements concerning the H1/H2 split were quite inaccurate.

27 February 2015

552    The forecast NPAT for 27 February 2015 had increased to $91 million excluding one-off strategic review costs. The board minutes for 27 February 2015 record that this forecast was presented to the board and discussed in detail.

553    The applicant made another point out of the fact that Mr Brookes was not present at this meeting and that it was because the board was considering the role of the CEO. The applicant sought to put a case that the board had lost confidence in Mr Brookes and Mr Ashby and had sacked them. And it was put to Mr McClintock that the decision to appoint Mr Umbers as CEO was a result of the board’s dissatisfaction with the performance of Myer in FY15. But Mr McClintock explained that this was not the case:

No, the – the timing of this change, which, as I said earlier in evidence, we had been – we had been working on for – for a year and a half and we had had a full global search. There had been a great deal of work done with – with the full knowledge of Mr Brookes. The – the timing came largely through the strategy work that – the strategy work was reaching a point where we had to lock in on – on something firm that we wanted to put out at the end of the – of the year – end of the financial year or into the next year, and – and it was becoming untenable to have a managing director who was on a limited tenure conducting that process. So the board had those discussions leading up to February, and then the other bit of the jigsaw puzzle was we had to decide whether any of the three people that we had hired as potential successors were ready to be appointed. And we took the view that Mr Umbers had demonstrated that ability and was ready to be appointed. And that’s– that’s what drove that timing.

554    And as Mr Brookes confirmed in giving his evidence:

I had had discussions with Paul [McClintock] back much earlier that year at the Wentworth Hotel on the basis of talking with him about future plans. Paul had requested on behalf of the board that I go forward to manage the potential merger of equals with David Jones, which fell over later in that year, and then we recruited three potential CEO replacements. So it was quite well managed from the perspective of me exiting the business sometime during that year, but there was no defined timing put on it.

555    Further, the applicant’s contention that Mr Ashby left Myer because of the FY15 results was also without any basis. Mr Ashby confirmed in his evidence that he had resigned about a month before the 19 March 2015 disclosure was made, and that he had done so to pursue an overseas role.

556    I do not need to dwell on any of these collateral themes.

The Myer board was mistaken about the anticipated split of profits in H1 and H2 of FY15

557    I have already touched upon this earlier but let me say something further about it. But first let me set out a table.

Table comparing H1:H2 split for the forecast presented to the Myer board on 21 January 2015 with the forecasts presented on 22 December 2014 and 5 January 2015