FEDERAL COURT OF AUSTRALIA

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

File number:

VID 1494 of 2016

Judge:

BEACH J

Date of judgment:

24 October 2019

Catchwords:

CORPORATIONS – representative proceeding – listed securities – continuous disclosure obligations – ASX listing rule 3.1 – failure to disclose material information to market – forecast of net profit after tax – absence of reasonable grounds – failure to correct forecast – concept of “information” under listing rules – concept of “awareness” under listing rules contravention of s 674 of Corporations Act 2001 (Cth) – misleading or deceptive conduct relating to securities – contravention of s 1041H of Corporations Act – availability of market based or indirect causation theory – loss and damage

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth) s 12GF(1B)

Corporations Act 2001 (Cth) ss 180, 674, 676, 729(1), 729(2), 769C, 1041H, 1041I, 1317HA, 1325

Evidence Act 1995 (Cth) ss 63, 64, 69(1)

Securities Exchange Act 1934 (US) s 10(b)

US Federal Rules of Civil Procedure r 23(b)(3)

Cases cited:

ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568

Australian Breeders Co-Operative Society Ltd v Jones (1997) 150 ALR 488

Basic Inc v Levinson 485 US 224 (1988)

Caason Investments Pty Ltd v Cao (2015) 236 FCR 322

Cammer v Bloom 711 F Supp 1264 (DNJ 1989)

Campbell v Backoffice Investments Pty Ltd (2008) 66 ACSR 359

Chowder Bay Pty Ltd v Paganin [2017] FCA 332

Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31

Digi-Tech (Aust) Ltd v Brand (2004) 62 IPR 184

Dura Pharmaceuticals, Inc. v Broudo 544 US 336 (2005)

Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469

Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177

Ford Motor Company of Australia v Arrowcrest Group Pty Ltd (2003) 134 FCR 522

Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486

Fubilan Catering Services Limited v Compass Group (Australia) Pty Ltd [2007] FCA 1205

Fubilan Catering Services Limited v Compass Group (Australia) Pty Ltd [2008] FCAFC 53

Gardiner v Agricultural and Rural Finance Pty Ltd (2008) Aust Contract R 90-274

Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding AG [2004] NSWSC 149

Gould v Vaggelas (1985) 157 CLR 215

Grant-Taylor v Babcock & Brown Ltd (in liq) (2015) 322 ALR 723

Grant-Taylor v Babcock & Brown Ltd (in liq) (2016) 245 FCR 402

Halliburton Co v Erica P John Fund Inc 573 US 258 (2014)

Hampic Pty Ltd v Adams [1999] NSWCA 455

Henville v Walker (2001) 206 CLR 459

I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653

Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526

Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 46-054

Lehocky v Tidel Tech., Inc. 220 FRD 491 (SD Tex 2004)

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Masters v Lombe (Liquidator); In the Matter of Babcock & Brown Limited (In Liq) [2019] FCA 1720

McCarthy v McIntyre [1999] FCA 805

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357

Re Faberge Inc 45 SEC 249 (1973)

Re HIH Insurance Limited (in liq) (2016) 335 ALR 320

Securities and Exchange Commission v Badian (unreported, No. 06 Civ. 2621(LTS)), 20 June 2012

Securities Exchange Commission v Badian 822 FSupp2d 352 (SDNY 2011)

Skiwing Pty Ltd t/as Cafe Tiffany’s v Trust Co of Australia Ltd (Stockland Property Management Ltd) (2009) 255 ALR 339

Smith v Noss [2006] NSWCA 37

Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84

Travel Compensation Fund v Robert Tambree (2005) 224 CLR 627

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Beach J, Class actions: Some causation questions (2011) 85 ALJ 579-596

Bhagat S and Romano R, “Event Studies and the Law: Part I: Technique and Corporate Litigation” (2002) 4(1) Am L & Econ Rev 141-167

Brown S and Warner J, “Using Daily Stock Returns: The Case of Event Studies” (1985) 14(1) J Financ Econ 3-31

Bruegger E and Dunbar FC “Estimating Financial Fraud Damages with Response Coefficients” (2009) 35(1) J Corp L 11‐69

Crew NI, Goshtigian PG, Moore MA and Sarin A, “Securities Act violations: Estimation of damages”, in Weil R, Wagner M and Frank P (eds), Litigation services handbook: The role of the financial expert (3rd ed, Wiley, 2001)

Duffy M, “Causation in Australian Securities Class Actions: Searching for an Efficient but Balanced Approach” (2019) 93 ALJ 833-854

Eckel C, Eckel D and Singal V, “Privatization and efficiency: Industry effects of the sales of British Airways” (1997) 43(2) J Financ Econ 275-298

Ferrell A and Saha A, “Forward-casting 10b-5 damages: A comparison to other methods” (2011-2012) 37(2) J Corp L 365-386

Ferrell A and Saha A, “The Loss Causation Requirement for Rule 10b‐5 Causes‐of‐Action: The Implication of Dura Pharmaceuticals v. Broudo” (2007) 63 The Business Lawyer 163-186

Grave D, Watterson L and Mould H, “Causation, Loss and Damage: Challenges for the New Shareholder Class Action” (2009) 27 C&SLJ 483-505

MacKinlay AC, “Event Studies in Economics and Finance” (1997) 35(1) JEL 13-39

Peterson P, “Event Studies: A review of Issues and Methodology” (1989) 28(3) Q J Bus ECON 36-66

Tabak D, “Implications for Market Efficiency and Damages Analyses of Plaintiff Interpretations of Halliburton II’s Statement that ‘market efficiency is a matter of degree’” (2015) 46(3) Loy U Chi LJ 467-484

Tabak D, “Inflation and damages in a post-Dura world” (NERA Economic Consulting, 25 September 2007)

Tabak D and Dunbar F, “Materiality and Magnitude: Event Studies in the Courtroom” (NERA Economic Consulting Working Paper No 34, 1999)

Tabak D and Dunbar F, “Materiality and magnitude: Event studies in the courtroom” in Weil R, Wagner M and Frank P (eds), Litigation services handbook: The role of the financial expert (3rd ed, Wiley, 2001)

Tabak D and Okongwu C, “Inflation Methodologies in Securities Fraud Cases: Theory and Practice” (NERA Economic Consulting Working Paper, July 2002)

Wooldridge JM, Introductory Econometrics: A Modern Approach (5th ed, South-Western Cengage Learning, 2013)

Date of hearing:

8, 9, 13 to 17, 20 to 23 August, 9 and 10 October, 5 and 21 December 2018

Date of last submission:

24 December 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

1721

Counsel for the Applicant:

Mr NJ O’Bryan AM SC and Mr MWL Symons

Solicitor for the Applicant:

Portfolio Law

Counsel for the Respondent:

Mr IG Waller QC, Mr PG Liondas and Mr R Chaile

Solicitor for the Respondent:

Clayton Utz

ORDERS

VID 1494 of 2016

BETWEEN:

TPT PATROL PTY LTD AS TRUSTEE FOR AMIES SUPERANNUATION FUND

Applicant

AND:

MYER HOLDINGS LIMITED

Respondent

JUDGE:

BEACH J

DATE OF ORDER:

24 OCTOBER 2019

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 MBrookes. 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:

Reason for increase/decrease compared to FY14

Amount of increase/decrease compared to FY14

Comments

1.

New stores

$50 million

“Cannibalisation” of sales on surrounding stores was forecast to be ~$10 million. This figure was taken into account in the sales figures for “same stores” (see Item 8 below).

2.

Completed refurbishments

$69 million

3.

Store closures

($12 million)

Total impact on sales for new stores, refurbished stores, and store closures

$107 million

4.

Online sales growth

$40 million

“Cannibalisation” of sales on the department stores was forecast to be $17 million. This figure was taken into account in the sales figures for “same stores” (see Item 8 below).

5.

Merchandise initiatives

$37 million

6.

Free standing stores

$3 million

7.

Sass & Bide sales growth

$9 million

8.

Same stores

($19 million)

This was based on: (i) assumed cannibalisation from online sales of ($17 million); (ii) assumed cannibalisation from new stores of ($10 million); and (iii) the expectation that $8 million of sales from the closed Hurstville store would be retained in surrounding stores

TOTAL

$176 million

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 StanleyAnalyst

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 CourtneyBank 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 BrookesMyer 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 KimberGoldman 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 BrookesMyer 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 SaligariCredit 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

Tab 284, 5140 - H1 vs H2 Historical Split (21 January 2015)

NPAT $m

H1

H2

FY

$m

% of FY

$m

% of FY

$m

FY10

Actual

119

71%

49

29%

169

FY11

Actual

109

67%

54

33%

163

FY12

Actual

87

63%

52

37%

139

FY13

Actual

88

69%

39

31%

127

FY14

Actual

81

82%

18

18%

99

FY15 CF + Actions

Forecast

62

69%

28

31%

90

5 Year Average (excluding FY14)

68%

32%

Tab 274, 4997 - H1 vs H2 Split (22 December 2014)

FY15 Current Forecast (CF)

Forecast

53

78%

15

22%

68

FY15 CF + Actions

Forecast

53

60%

36

40%

89

Exhibit R2, pg 4 - H1 vs H2 Split (5 January 2015)

FY15 Current Forecast (CF)

Forecast

58

79%

15

21%

73

FY15 CF + Actions

Forecast

58

65%

31

35%

89*

*Note rounding error.

558    Now the documents considered at the 5 January 2015 board meeting show a current forecast for the full year with a $58m/$15m NPAT split, or 79% in H1 and 21% in H2; inclusive of “actions”, it shows a $58m/$31m NPAT split, or 65% in H1 and 35% in H2. However, the email sent by Mr Brookes to the board members on 21 January 2015 gave as one reason why Mr Brookes considered that Myer had “no need to disclose any updates to the market out of our normal cycle” that the Myer forecast showed an FY15 NPAT of $90m “with even less cost reductions than the prior view presented to the board (cost in half two is now to be reduced by $14m not $21m)” and that the split of “65% average in first half profit” was said to be “in line with this year … 2014 was a one-off”. The applicant says that there is no basis for that assertion, having regard to the split of profit shown in the forecast prepared in October 2014 which showed an approximately 80:20 split. Nevertheless the board at its meeting on 21 January 2015 was apparently convinced by Mr Brookes’ email. The minutes record:

The 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%, 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 Bloomberg 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.

559    For these reasons, the board considered that there was no obligation to inform the market about any of the adverse developments in the FY15 year to-date.

560    The applicant says that the version of the FY15 forecast prepared for the board in February 2015 was practically unchanged from the January 2015 version. The full year NPAT forecast was still $76m and required $14m of actions to bring it up to $90m. Those actions for H2 again required a $5m reduction in the marketing spend, $3m of continued recruitment freeze and $3m from each of discretionary and project opex.

561    At the board meeting on 9 February 2015, Mr Ashby is recorded as having made a presentation to the board on the NPAT forecast for the full year. The board considered the H2 forecast (which assumed growth on the previous year of 3% and that cost reductions previously discussed were implemented), which then resulted in a full year NPAT forecast of $90m. The board is said to have discussed the H1:H2 NPAT split noting that “based on the current forecast, while 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 also noted that the Bloomberg NPAT consensus for the full year was said to be $88m. The board then 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”. Again, it appears that no consideration was given to the question whether the discrepancy between the then NPAT forecast of $90m and Mr Brookes’ representation of increased profits in 2015 might require qualification or correction by ASX announcement. The applicant says that the percentage improvement in Myer’s business performance which was required in the version of the FY15 forecast which was prepared in February 2015 was extraordinary. H1 had shown a negative change in NPAT of -23%, but this was anticipated to be converted into a positive 61% change in NPAT (from $18m to $29m) in H2. But the actual performance in FY15 H1 can be compared to FY14. The second quarter earnings of $79m were in fact approximately correct in predicting that the whole of FY15’s profit would be earned in the second quarter.

562    There is some force in some of the points made by the applicant. But whether good or not, the fact is that Myer had no excuse not to make disclosure of its updated position by no later than 9 December 2014.

Myer’s forecasts of NPAT with or without “actions”

563    Before proceeding further with the chronology I should make another general point at this stage.

564    Various forecasts provided to the board in late December 2014 and during January and February 2015 contained a forecast figure which presented a forecast of NPAT if adjustments to Myer’s business plans in response to current trading including in relation to costs were not taken into account; this was typically described as the “Current Forecast”. Another type of forecast figure presented a forecast of NPAT if adjustments to Myer’s business plans in response to current trading were taken into account; this was typically described as the “Current Forecast + Actions”.

565    Myer says that it was this latter figure which represented management’s forecast of anticipated NPAT based on how the business would actually be run, and which was treated by the board as the forecast of expected NPAT.

566    Before proceeding further, let me set out another table.

Table comparing “current forecast”, “cf + actions”, and Bloomberg consensus figures for forecasts presented on 22 December 2014, 5 January 2015, 21 January 2015, 9 February 2015 and 27 February 2015

Current Forecast

CF + Actions

Bloomberg Consensus

22 December 2014

$68m

$89m

$90m

5 January 2015

$74m

$90m

$90m

21 January 2015

$76m

$90m

$90m

9 February 2015

$76m

$90m

$90m

27 February 2015

$91m

$89m

567    Now the applicant suggests that the “true internal forecasts” of NPAT from time to time were those amounts described as “current forecasts” before changes in the business plans (“actions”) were taken into account. But I agree with Myer that the applicant’s submission is inconsistent with the evidence and should be rejected.

568    First, it is apparent from the documents that the “Current Forecast” figure did not represent an anticipation of what NPAT would actually be, but only what NPAT would be if actions were not taken.

569    Second, it was planned that actions would be taken. For example, in each of the relevant documents the “actions” identified are not merely something to be considered, but are stated to be “Actions/Levers to be taken”. That is, the actions are now part of the business plan as to how the business will be conducted. The forecast adopted by the business as to where it expects to end up at the end FY15 is therefore represented by the item in the forecast that is “FY15 CF + Actions”. What is referred to in these documents as the “Current Forecast” is not the forecast as to what the result in FY15 is expected to be, but is rather only one-half of the picture being what the result is expected to be if certain steps are not taken. But certain steps were to be taken.

570    Third, the ASX Guidance Note 8 recognises that when one is considering disclosure obligations surrounding earnings, it is necessary to have regard to the fact that an entity may adjust its business plans in response to its current performance. This would include adjustments in relation to issues such as costs. This reflects the proposition that a business’s expected performance must have regard to its most up to date business plans.

571    Fourth, Mr Brookes’ evidence was that it was the figures which had regard to the way the business was to be run, and which therefore included the “actions” which represented “the then best forecasts by me and the EGM as to NPAT”.

572    Fifth, Myer’s contemporaneous documents, and in particular its board minutes, record that senior management and the directors treated the “Current Forecast + Actions” figure as the “forecast for FY15”. See for example the board minutes of 22 December 2014: “the forecast for FY15 is NPAT of $89m”; and the board minutes of 5 January 2015: “the full year forecast NPAT is $90m”. Consistently with what was seen to be the forecast, in his contemporaneous email of 21 January 2015, Mr Brookes said that “Our forecast shows $90m”. This related to the forecast of 21 January 2015, which had a forecast NPAT of $76 million if no actions were taken or changes made to the way the business was run, and an actual forecast NPAT of $89/90 million based on actions “to be taken”.

573    Sixth, Mr Brookes’ evidence was that the approach taken by Myer, of considering its forecast of what the business would achieve based on its expectation as to how the business would be run as opposed to a figure based on what might be expected ignoring changes to the way the business was to be run was:

(a)    an approach that had been taken at Myer since June 2006;

(b)    consistent with the approach taken when he was CEO of Edcon in South Africa; and

(c)    consistent with the approach taken at Woolworths, where he was a senior executive for around 20 years.

574    Seventh, at no stage was it suggested to Mr Brookes, or any other witness, that the cost “actions” taken into account by management and the board in arriving at the forecast figures were not reasonably based. Indeed, Mr Brookes’ evidence was that the actions were “numbers that had been worked through with the EGM and discussed at EGM meetings and hot tubs to ensure that we don’t disappoint out shareholders”, and that he would have worked with Mr Ashby to determine these cost savings.

575    Eighth, that the “actions” were presented in the documents separately to the forecast without those actions was merely an internal presentational issue. This is demonstrated by the fact that the 27 February forecast had only one forecast figure (described as “Current Forecast”), which figure on this occasion included all of the actions, and came to $91 million. Management and the board were both clear that they considered the forecast to be the figure which included matters concerning how the business would be run including the actions.

576    Accordingly, I agree with Myer that the applicant’s submission that Myer’s “true internal forecasts” were the lower figures without any reference to actions is problematic. But having said that, the realistic forecast did not necessarily embody all actions with an assumed 100% success rate in terms of the quantification of benefit.

577    Further, the applicant submits that the actions included in each of the forecasts were introduced to bring the current forecast figure up to or approximately to the Bloomberg consensus. But even if that is the case, there is nothing remarkable or untoward if Myer was keen to try to, at a minimum, meet shareholders’ expectations. There was no suggestion that Myer was not actually planning to implement most of the actions that were identified, that those actions did not form part of its business plan, or that those actions were not realistic or achievable, albeit that the quantified benefits may not be fully achievable.

578    Further, Mr McClintock gave evidence that prior to the 19 March 2015 announcement, the board still had the view that Myer had the ability to run its business in a way that would deliver a result of about the level of consensus and which, in this respect, would be “acceptable to the market”. Mr McClintock then made the point that:

It is a completely valid way of running a business to actually say that to the extent to which you do not get the bottom line results that you hope you get from sales that you actually trim your costs. I think any one of my companies would do that.

579    The strategy is justifiable, except where trimming costs in the short term is highly artificial to the extent that its only motivation is to meet market expectations, at the expense of the business’ interests in the medium to long term.

The 2 March 2015 reaffirmation of NPAT in line with consensus

580    On 2 March 2015, Myer conducted a conference call with analysts. During that call, Mr McClintock made clear to the market that Myer was measuring its continuous disclosure obligations as against consensus.

581    The reason for the call was explained by the Chairman in the following terms:

Paul McClintockMyer Holdings Ltd Chairman

Thank you very much and good morning everyone. Thanks for joining the call. I know it’s short notice, but it’s a big day for Myer and we were keen to share it with you. I have with me today the newly-appointed CEO of Myer, Richard Umbers; the CFO, Mark Ashby; Davina Gunn and Olivia Reith from Investor Relations.

As you will already be aware, we have announced to the market that after almost nine years at the helm of Myer, Bernie Brookes is handing over the leadership brains to Richard Umbers. Before I talk about Richard and the changes, I’d like to very much acknowledge the extraordinary role that Bernie has played in leading the Company through the creation of the modern Myer out of the Coles Myer Group.

So that’s what the timing’s about. I know there are some concerns out in the market that -- about the timing. The truth is that in a company, you can build your decisions around announcing results and so on, but that’s the wrong way of running a company. You run a company when the time is right; we’ve got a lot of people working here who rely upon us to actually make the decisions in a timely way.

And the Board has a sense of urgency. This is not the sort of thing that you can put on hold until a convenient moment; you basically have to take the opportunity when you’re ready. As I said earlier, it was right for the Company, we had strong candidates and basically we made the call.

If anybody has any doubts, this is a Board with great experience that knows the responsibilities of the ASX Disclosure Rules and if we believed that there was any need to actually make any further disclosure before March 19, which is when we are doing our half-yearly, obviously we would have made that. In fact we would have made that some weeks ago. So this is not a discussion and this is not a decision that relates to those results; it relates to the ongoing future of the Company.

582    The following exchange later took place:

Michael CourtneyBofA Merrill Lynch – Analyst

Congratulations to Richard. Paul, you mentioned around continuous disclosure so I guess I’m just a little bit confused. The fact that there hasn’t been any announcement around impairments today or around earnings for this current year in line with any cost investments that would need to be made, am I to take that as you’re significantly far enough through what needs to be done that you know you won’t have to make any impairments or revisions to guidance? Or you’re not yet far enough through the decisions that need to be made to come to those conclusions?

Paul McClintockMyer Holdings Ltd Chairman

I think it’s fair to say, you know how the disclosure system works. We’re aware of our obligations and trying to micro-manage to what extent we are through the process. Clearly if we had got to the point where we knew that there was disclosable information it would be out there and there isn’t and it’s not.

Michael CourtneyBofA Merrill Lynch Analyst

Okay, so when we hear from Richard at the half year or even the full year will the strategy have been completed, in terms of the transformation that needs to occur?

Paul McClintockMyer Holdings Ltd – Chairman

Well, the strategy -- the half-yearly results are on March 19 which is two weeks, so let’s be realistic. Richard got the job today. But as far as when we will speak more fully, my expectation is it will be later in the year and that does mean that certainly by the full-year results, I would expect there would be more information out in the market by then, yes.

583    Later another exchange took place:

Thomas KierathMorgan Stanley – Analyst

Well done. I understand that you don’t need to provide any earnings update. Paul, I was wondering if you’d be prepared to stand behind Bernie’s comments that he thought that profits could rise, or would rise this year.

Paul McClintockMyer Holdings Ltd Chairman

Anything that I say at this point is, in fact, giving profit guidance and I think with the announcement coming out on March 19, I won’t make any further comment in relation to it.

Our disclosure obligations are linked to the Bloomberg consensus. That’s my understanding of my obligations under the ASX and that’s broadly the benchmark that we are using in telling you that there is no need for a disclosure now and there hasn’t been in the past week.

584    Then later it was said:

David ThomasCLSA – Analyst

Maybe some context, I know there’s been a lot of talk about consensus and that sort of stuff, so I hate to harp on it, but Myer did AUD98 million of NPAT last year; consensus was expecting them to do AUD91 million or circa AUD91 million in FY15. Are they the numbers that you and the Board have in mind when you say that you don’t need to update the market and that you’re aware of your continuous disclosure obligations?

Paul McClintockMyer Holdings Ltd – Chairman

Again, if we start to micromanage the thing, I think we start to cross the line. But broadly, it is the Bloomberg consensus that we track in relation to our continuous disclosure obligations and that is the reaffirmation that I have given you today.

585    Relevantly, let me emphasise two statements.

586    The first statement has Mr McClintock saying that “[o]ur disclosure obligations are linked to the Bloomberg consensus. That’s my understanding of my obligations under the ASX and that’s broadly the benchmark that we are using in telling you that there is no need for a disclosure now and there hasn’t been in the past week”.

587    The second statement arises from the following exchange:

David ThomasCLSA – Analyst

Maybe some context, I know there's been a lot of talk about consensus and that sort of stuff, so I hate to harp on it, but Myer did AUD98 million of NPAT last year; consensus was expecting them to do AUD91 million or circa AUD91 million in FY15. Are they the numbers that you and the Board have in mind when you say that you don't need to update the market and that you’re aware of your continuous disclosure obligations?

Paul McClintockMyer Holdings Ltd – Chairman

Again, if we start to micromanage the thing, I think we start to cross the line. But broadly, it is the Bloomberg consensus that we track in relation to our continuous disclosure obligations and that is the reaffirmation that I have given you today.

588    As to how these comments were understood, commentary from analysts following the statements being made is instructive.

589    In a report from Mr Andrew McLennan and Ms Roshenka Madanayake at Commsec they said:

The key short-term risk is the lack of ownership of FY15 earnings. We have made no earnings changes. Notably, the Chairman called out consensus as a reasonable earnings guide. This implies a 10% NPAT decline in FY15, which contradicts previous management expectations for profit growth (CBAf -13%).

The share price rollercoaster continues. Underperformance appears likely for MYR’s share price in the short term, despite the confirmation of consensus earnings for FY15.

590    In a report from Mr Grant Saligari and Mr Troy O’Dwyer at Credit Suisse they said: “The Chairman has reaffirmed that trading performance is in line with Bloomberg consensus (FY15 NPAT $90mn, EPS 15.1cps)”. And further:

The Chairman has reaffirmed MYR’s performance is in line with current market consensus – NPAT $90mn and EPS 15.1cps for FY15, which suggests that underperformance to short-term expectations, if it exists, is not of a material nature.

591    It would seem that analysts understood that as at 2 March 2015 Myer’s expectations for its NPAT for FY15 was in line with, or around, the consensus figure of $90 million. And it would seem that the comments of analysts showed that they had understood at this time that Myer’s expectations for its NPAT was broadly in line with consensus. Let me give some examples.

592    Mr Bryan Raymond and Mr Elijah Mayr of Macquarie, said: “No earnings update confirms current consensus expectations”. It is therefore evident that Macquarie considered what Mr McClintock said not to be an “earnings update”.

593    Mr Thomas Kierath and Ms Monique Rooney of Morgan Stanley commented on 2 March 2015 that “MYR has an obligation to update the market if profits were different to consensus – so today’s announcement could actually be a confirmation of existing consensus expectations”. There are two points to note from this. Macquarie’s analysts, like the others, understood what Mr McClintock had said as confirming “consensus expectations” of around $90 million. Second, their understanding was that Myer’s obligation was to update the market if profits were different to consensus.

594    Mr David Thomas and Mr Richard Barwick of CLSA did not comment on Mr McClintock’s statement in their report, but at the subsequent earnings call on 18 March 2015, an analyst named David, that is, Mr Thomas, said “your Chairman two weeks ago suggested that AUD91 million of EBIT – sorry NPAT – was a number he was comfortable with”.

595    According to Myer, none of the commentary in any of the analysts’ reports suggested that they considered the reaffirmation or confirmation that Myer was trading in line with consensus to be new or material information. Save for a brief comment in the UBS report, none of these other analysts commented on Mr McClintock’s statement. This is indicative of the fact that none of them considered it to be significant for the reason that they all already knew or assumed that Myer was using consensus as its disclosure benchmark and/or were paying no regard to the comment of Mr Brookes six months ago. Consistently with this, Myer’s internal documents said: “The feedback from the market can be summarised as follows: … The announcement confirmed that a 10% earnings drop (Bloomberg) consensus is Myer’s continuous disclosure reference point”. Mr Greg Houston, an expert called by the applicant whose evidence I will discuss later, also gave evidence that, by reference to the 2 March 2015 announcement, and the commentary of analysts following that announcement, he agreed that at this time analysts understood that Myer’s internal expectations were broadly in line with consensus, and that: “at least at this stage, if anyone had been thinking about Mr Brookes’ earlier comment, by 2 March it was clear to them that Myer was now tracking in line with a much lower figure of $90 million”.

596    The second point to note is the reaction by analysts in terms of their forecasts for NPAT in FY15 following Mr McClintock’s statements. Those reactions can be summarised as follows:

Analyst

FY15 NPAT forecast as at 4 February 2015

FY15 NPAT forecast as at 9 March 2015

1.

BofA

$88m

$88m

2.

Citi

$89m

$89m

3.

Commsec/Commonwealth Bank

$86m

$86m

4.

Credit Suisse

$89m

$88m

5.

Deutsche

$91m

$87m

6.

Goldman Sachs

$91m

$92m

7.

JP Morgan

$84m

$84m

8.

Macquarie

$88m

$90m

9.

Morgan Stanley

$91m

$91m

10.

CIMB

$85m

Not available

11.

CLSA

$88m

$88m

12.

UBS

$91m

$91m

Bloomberg Consensus

$90m

$89m

IBES Consensus

$88m

$88m

Average

$88m

$88m

Median

$89m

$88m

597    Of the 12 analysts whose reports were considered:

(a)    eight do not change their NPAT forecast for FY15 in any way;

(b)    two increased their NPAT forecast for FY15 (Goldman Sachs and Macquarie);

(c)    two decreased their NPAT forecast for FY15 (Credit Suisse and Deutsche). Deutsche was the only analyst whose forecast moved in any significant way. It is evident from the Deutsche report that this change was not linked to Mr McClintock’s comment, but to a view as to increased CODB that would be needed by way of strategic investment.

598    Movement in consensus or average/median figures were non-existent or immaterial.

599    Mr Houston gave evidence that analysts in their reports typically discuss the announcement of new, material information about a company’s future prospects. Further he said that looking at analysts’ valuations and reports represents an insightful, objective basis for determining whether any statements by a company were considered to be new. Further, he said that when analysts consider information to be new and material they tend to revise their earnings estimates.

600    Accordingly, the absence of any change by analysts to their forecasts indicates that they did not consider anything said by Mr McClintock to be new material information. Consistently with this, Mr Houston gave the following evidence:

MR LIONDAS: Now, we saw just a moment ago that on 2 March an announcement to the effect that Myer was in line with consensus that $90 million didn’t cause consensus to move. You would agree with that?

MR HOUSTON: Yes.

MR LIONDAS: And, therefore, if what analysts do is a reasonable indication of whether they consider information to be new or material, you would agree, wouldn’t you, that that would indicate that on 2 March none of those analysts saw the announcement of NPAT being in line with $90 million as being new or material information?

MR HOUSTON: I think that the evidence suggests that that – that was what their expectations already were. Yes.

MR LIONDAS: And so then, when we come to the 19 March announcement, the new information that has caused consensus to move down must be the announcement of a forecast that is below consensus?

MR HOUSTON: Yes.

MR LIONDAS: So what these events, effectively, tell you is that in order for consensus to move down – and on your analysis, for there to be a corresponding decline in the share price – you need an announcement of NPAT of less than consensus.

MR HOUSTON: Generally speaking, yes. That – I mean, we’re only just talking about it – one year here, but yes, generally speaking.

601    Dr Stephen Prowse, an expert called by Myer whose evidence I will discuss further later, gave the following evidence to a similar effect:

MR O’BRYAN: I see. Yes. So you don’t regard the abnormal returns on the 19th as any indication of the market’s disappointment to find that what Mr Brookes had said seemed to be completely unreliable six months later?

DR PROWSE: You’re talking about the March 19 reaction?

MR O’BRYAN: Yes.

DR PROWSE: … [E]ven before the March 19 announcement, the market had understood that, regardless of what was said earlier, the market’s expectations were that Myer was not going to perform anywhere close to what it did in fiscal year 2014, let alone better than.

MR O’BRYAN: And do you understand that was connected with a statement made by the chairman to the analysists on 2 March?

DR PROWSE: No. That was understood by the market well before March 2, because if you look at the Bloomberg consensus estimates of earnings, it’s approximately 90 prior to the announcement on March 2.

MR O’BRYAN: Yes.

DR PROWSE: So analysts had already factored into there and understood and come to an expectation that Myer was not going to perform as well as it did in 2014 well before March 19 and before March 2 as well.

MR O’BRYAN: As measured by your Bloomberg Best index?

DR PROWSE: As measured – well, it’s not my index. It’s not my index. It’s the index Mr Houston uses to measure market expectations.

MR O’BRYAN: Yes.

DR PROWSE: And that - - -

MR O’BRYAN: Well, the index. Yes.

DR PROWSE: What that tells me is that the market by – certainly, by March 2 and before, had already understood that Myer was going to significantly underperform relative to 2014.

602    There was then a further exchange as follows:

MR O’BRYAN: Now, you will see in the response that the chairman declined to respond in the first line, and then he said this in the next line, “Our disclosure obligations are linked to the Bloomberg consensus. That’s my understanding of my obligations under the ASX. That’s broadly the benchmark that we are using in telling you there’s no need for a disclosure now, and there hasn’t been in the past week.” And you will see, if you turn to page 6548 that Mr Thomas, who is, in fact, that analyst from CLSA that you looked at one of his reports earlier on, he’s the one who had the comparator or peer companies, Mr David Thomas, he also asked a similar question about where Myer was tracking to and Mr McClintock repeated, in effect, saying in answer to that, “Broadly, it is the Bloomberg consensus that we track in relation to our continuous disclosure obligations.” That’s the reaffirmation I’ve given you today. Now, could you make the assumption this is the first occasion on which Myer has ever said to anybody in any public setting, if you call an analyst conference call a public setting, that the company was, as the chairman put it on that day, tracking to the Bloomberg consensus in respect of its continuous disclosure obligations. And would you agree that that is likely to have influenced the analysts in respect of their reconsideration of Myer’s likely profit expectations when that statement was made by the chairman?

DR PROWSE: No, because I’ve studied this and, as I’ve said before, market expectations prior to this announcement on 1 March, or this discussion, this conference call, were approximately 90, $91 million for fiscal year 2015. So analysts have already determined independently, and based on other information coming out, that Myer wasn’t going to make anywhere close to in their expectation what they made in fiscal year 2014. So this information, while it did come from Myer, was not new information in the sense that analysts had already figured out and decided collectively that their expectation collectively, sort of the market expectation for earnings was approximately 90, 91 million. So this track – this discussion by Mr McClintock – and if you look after 2 March, analysts didn’t change their expectations about earnings. The Bloomberg consensus stayed at about 90, 91. So there was no real effect on how market analysts were thinking about what is Myer going to make in 2015 because they had already figured – they had already come to that conclusion.

603    Further, there is no evidence to suggest that any share price movement on 2 March 2015 was connected to anything other than information on that date that the CEO and CFO were to be changed. The simultaneous departure of the CEO and CFO would be a significant event for any business, but it was particularly significant for Myer since the CEO had been in that role for approximately nine years and the CFO for approximately seven years.

604    Therefore, according to Myer, the first piece of objective evidence that I have as to how analysts and the market would have reacted to a disclosure of expected NPAT around the level of Bloomberg consensus is that analysts’ expectations and Bloomberg consensus would not have changed in any material way and the share price would not have changed in any material way. I tend to agree that this is some evidence at least.

605    Now the applicant notes that Mr McClintock’s comment stated two things for the first time: (a) first, that Myer was assessing its continuous disclosure obligations only against the Bloomberg consensus; and (b) second, “that there is no need for a disclosure now and there hasn’t been in the past week”.

606    The applicant says that the fact that the analysts did not materially change their FY15 NPAT forecasts as a result of what Mr McClintock said tells little about the question whether Mr Brookes’ representation of increased NPAT for FY15 was or was not still influential in forming the investment views of market participants other than the stockbroking analysts who were present on that call. That is a fair point, but it may not ultimately assist the applicant given the way it sought to utilise market-based causation and prove loss.

607    In any event, according to the applicant, all that this evidence could show is that on 2 March 2015, nearly six months after Mr Brookes’ profit forecast, as a result of what Mr McClintock said, the analysts on that call alone were informed about the basis upon which Myer was then assessing its continuous disclosure obligations (“there is no need for a disclosure now and there hasn’t been in the past week”) and Myer erroneously considered on 2 March 2015 that it had nothing to disclose to the market about its actual expectations in respect of FY15 NPAT.

608    Further, according to the applicant, the latter proposition proved to be unreliable a little over two weeks later, when Myer announced the updated FY15 NPAT range of $75m to $80m. And the former proposition is irrelevant to the question whether what Mr Brookes had represented on 11 September 2014 was or was not misleading to the market and did or did not require correction or clarification at any time thereafter until it was contradicted on 19 March 2015. I agree with the applicant on these points.

609    Further and in any event, as the applicant points out, the analysts’ consensus and/or the Bloomberg consensus is only one aspect of the information which it might reasonably be assumed is influencing investment decisions in the marketplace. And Myer made no effort to examine or explain the extent to which the so-called consensus figures, whether in the form in which they were reported to the board of Myer or in the form which was considered by Mr Houston and Dr Prowse being the Bloomberg BEst, were known to or understood by ordinary market participants. Again, the applicant makes a fair point. But where it takes the applicant is another matter.

610    Finally and before proceeding further, I would note that Ms Gunn sent on 3 March 2015 an email to the Chairman and the directors in the following terms:

Pls see attached the analyst reports published overnight and in summary below.

The feedback from the market can be summarised as follows:

    The change in leadership was not a surprise but the timing was very suspicious (being so close to results)

    The news that Mark was leaving was unexpected and exacerbates the concerns about the result

    There is now further scepticism surrounding the 1H2015 result

    The announcement confirmed that a 10% earnings drop (Bloomberg consensus) is Myer’s continuous disclosure reference point, not the EPS growth referenced by Bernie prior to Christmas

    Not enough meat on what the new strategy actually is. Appears to be business as usual.

    New CEO represents risk around re-basing the earnings and potential enquiry raising to fund the strategic review

    Further downside risk to the share price

611    On 10 March 2015, the Bloomberg consensus for NPAT was $89 million.

16 and 17 March 2015

612    On 16 March 2015, draft Q&A responses were prepared in anticipation of the release of the H1, FY15 results.

613    The following was stated:

Key message sound bites

1.    Disclosure criticism

As the Chairman said at the time of the CEO succession announcement, we monitor Bloomberg consensus forecasts to ensure our expected performance is in line with market expectations. We are well aware of our continuous disclosure obligations and are confident in the guidance we have provided today for FY15 NPAT of $[89] million.

614    On 17 March 2015 a directors’ Strategy Meeting was held, chaired by Mr McClintock. The following was said:

1. H1 announcement and subsequent activity

The Board noted the draft H1 announcement.

The Board discussed the February trading result as contained in the Board papers, and as against the forecast that was presented on 27 February. The Board was concerned to understand in particular both the OGP result and the NPAT result for the month as against the forecasts for each on 27 February. Whilst the Board paper noted timing differences had some impact, the Board expressed concern with the results when compared with the 27 February forecast, and requested that the current result be considered urgently. In addition, the Board wanted to understand whether the sales result through February and March indicated a concern with the sales trend.

MA said the recent sales results required further investigation, particularly if they were indicative of an adverse sales trend. The sales result for February was such that it had required almost all of the sales “buffer” that had been allowed for in the full year forecast. MA said the GP trend also required further investigation and work. MA said that the KPI process, being the detailed merchandise build-up of the forecast by business, based upon sales trajectory, marketing plans, and product range performance, had commenced last week, and has subsequently flowed through to the profit and loss process in the last 24 hours, and provided visibility of the impact of the decrease in sales on OGP. This has caused further reason to review the forecast. Whilst work has been done to provide a reforecast for the rest of the financial year, the process will also need to include considering the impact of the new initiatives that are planned and that are intended to positively influence sales. To obtain a view of the impact of the positive impact of initiatives on the full year forecast, OGP needs to be considered by the stores and merchandise teams, to establish the impact the initiatives will have on sales and OGP, and whether this will impact the trend for the balance of the financial year. The forecast work that is in process has not incorporated this, and when the stores and merchandise work has been completed, it will be included in the forecast. The impact on the full year results of the significant months of June and July also need to be considered.

The Board noted that the shrinkage for the month had been $1.1m worse than expected.

The Board restated that at the 27 February meeting, the full year forecast presented by Management was $91m. The Board requested that Management urgently undertake detailed work to consider the impact of the information that it had concerning the sales trend and the resultant impact on OGP and NPAT.

18 March 2015

615    On 18 March 2015 a board meeting was held. The board minutes for 18 March 2015 record that a detailed review had been conducted of the current forecast for the balance of FY15. As to what had changed, the minutes noted that:

The previous forecast was prepared on the basis of stronger expected sales results, particularly given that comparative sales for January were up against last year. However, the recent February trading performance result and March sales are concerning. OGP was at 39.28%, down 162 bps against a forecast of 40.90%. In addition, the shrinkage result was also up $1.1m for the month.

The review of the forecast for the balance of FY15, based on the trend, resulted in a reduction in sales, and a decline in OGP of $13 m, compared with the forecast on 27 February

The revised sales and OGP figures, when applied across the store network, has resulted in the expected forecast for FY15 being lower. The range recommended by Management to the Board for the forecast NPAT for the year was a NPAT of $77m to $83m, excluding the costs of the strategic review.

The Board considered the analysis presented by management in detail, and discussed their concerns given the sales and deteriorating OGP through February and March. The positive trend that had emerged through the end of December and through January had not continued, which caused the Board concern for the balance of the financial year. The Board considered that in its judgment, taking into account the trend of the previous 6 weeks and the impact on OGP, that the forecast for full year NPAT was $75m to $80m, excluding the costs of the strategic review.

616    What those minutes record was that trading performance in February and March had been lower than forecast.

The 19 March 2015 Announcement

617    The ASX and market announcement on 19 March 2015 was that: “The Company now expects FY2015 NPAT to be between $75-80 million (excluding one-off costs)”.

618    The H1 results were announced in the following terms:

619    There was a similar statement concerning NPAT made under the heading outlook.

620    The announcement was in terms of Myer’s expectation as to its FY15 NPAT. It is therefore a statement of its opinion in this regard.

621    According to Myer, a difficulty for the applicant in this case is that at no relevant earlier point in time did Myer hold an expectation of NPAT of this amount, or anything like it. According to Myer, at no time prior to 18 March 2015 did Myer hold an expectation that its NPAT would be less than consensus. And Mr McClintock’s unchallenged evidence was that “[a]t the Board meeting on 18 March 2015 I was presented for the first time with a measureable and reasonably certain view that Myer’s FY15 NPAT would likely be materially less than consensus”. Further still, it was not suggested to any of Myer’s witnesses that they in fact held an expectation of NPAT of less than consensus at any relevant time. Now all of that may be so. But I do not accept that consensus was the sufficient benchmark to assess materiality and Myer’s continuous disclosure obligations.

622    But I do agree with Myer that prior to this time it was not obliged to disclose an NPAT in the range of $75 to $80 million whether as part of its continuous disclosure requirements or as part of any correction of the 11 September 2014 representation.

623    Before proceeding further, let me note aspects of the earnings call that took place after the announcement.

624    The following Q&A took place:

Shaun CousinsJP Morgan – Analyst

Just in regards to the guidance, I’m not sure if the Chairman’s here, but under continuous disclosure regulations, I would have thought that at the end of March, you would have had an idea of sales in February and maybe gross profit dollars in February. If you don’t have an eye on gross profit dollars in February why are your systems inadequate in that manner?

I’m just sort of curious why -- given that that much of the call related to; are you comfortable with guidance? Consensus is below what management have said, are you comfortable with that number, but the Chairman was silent on that issue and actually -- and hence agreed and almost that didn’t change guidance.

Why didn’t you change guidance then, given that it only takes 19 days and the market’s looking at around a 10% to 15% downgrade. But obviously your share prices of today are kind of reflecting some of that.

I’m just curious, given consumers disclosure guidelines why you didn’t make that change or why the Chairman didn’t make that change on March 1?

625    He was referring back to 2 March 2015.

626    Mr Umbers responded:

Richard UmbersMyer Holdings Ltd CEO and MD

As I mentioned earlier, January was actually a very strong month for us and the Stocktake sale was very positive. That gave us every confidence in the Bloomberg consensus measure that we use.

Having said that, when we actually saw the result of February, which of course the P&L for that has only just come in and when it did come in, we triggered a full review of the outlook for the rest of the year.

The reason we did that is because the key lever that sits within that, the GP, came off and we needed to understand that better in the context of the competitive environment and then extrapolate that forward.

That has happened very recently and we’re well aware, obviously, of our continuous disclosure obligations and as a result of that, we’re releasing the reforecast today. Anyone else in the room?

627    Then the following took place:

Unidentified Participant [Mr David Thomas]

Yes. Hi guys. I’d like to put a couple of numbers around your guidance if possible. So -- and I know this question has been explored a little bit -- but your Chairman two weeks ago suggested that AUD91 million of EBIT -- sorry, of NPAT -- was a number that he was comfortable with.

Two weeks later you’re at the mid-point which is AUD77.5 million which is down 15%. I just don’t see how that can -- how you can defend that in terms of continuous disclosure based on a couple of weeks of trading. I know you may not have had February but I would remind that -- 80% of your earnings are made in the first half.

Richard Umbers Myer Holdings Ltd CEO and MD

The Chairman made clear our view on the Bloomberg consensus which is--

Unidentified Participant

--which was AUD91 million--

Richard Umbers Myer Holdings Ltd CEO and MD

--if you like, that we were following. There was no reason why we were obligated to make a declaration at that point because we were within the consensus range. So there was no requirement there.

Unidentified Participant

How could it have been in consensus range?

Mark Ashby Myer Holdings Ltd CFO

David, it’s Mark here. We’re not going to get into a debate on this. We are very aware of our disclosure obligations--

Unidentified Participant

--well I don’t believe that--

Mark Ashby Myer Holdings Ltd CFO

--and we have met those disclosure obligations. So there’s no purpose to getting into a debate.

Unidentified Participant

To have hit the guidance for the full year you would have needed to increase your second half profit year-on-year by 70%. I don’t see how you could say that that’s in line with your expectations.

Mark AshbyMyer Holdings Ltd – CFO

Well, that’s your opinion. It’s not ours.

Unidentified Participant

Well, it’s the numbers. It was clear that AUD91 million was NPAT. You knew AUD62 million was your first half performance.

Mark AshbyMyer Holdings Ltd CFO

David, I’m going to -- all I’m going to do is give you exactly the same answer each time. We’re aware of our disclosure obligations and we believe we’ve met the obligations. So we’re not going to get into a debate on it.

628    Let me note how analysts reacted to this announcement. The evidence is that the Bloomberg consensus moved from $88.7 million to $78.65 million following this announcement. Accordingly, based on an announcement of expected NPAT of $75 to 80 million, consensus settled within and toward the upper end of that range.

629    Now given that consensus was at $89m, and the announced expectation was NPAT of $75 to 80m, what the market was being told was the NPAT was expected to be around 10 to 16% below consensus. So, I agree with Myer that it is that information, which was not already factored into the share price, to which the market and the share price reacted. To put it another way, with which I agree on the evidence, if the market had been told on 19 March 2015 that Myer expected NPAT of around $89 million, then there was no evidence to suggest that the share price would have fallen.

630    I agree with Myer that the objective evidence appears to disclose that:

(a)    an announcement of an NPAT expectation by Myer in line with consensus would not have moved Bloomberg consensus; and

(b)    an announcement of an NPAT expectation by Myer below consensus would have moved Bloomberg consensus into line with the newly stated expectation but not below it.

631    So, according to Myer and with which I substantially agree, there are several important points that can be made when one considers the 2 March 2015 and 19 March 2015 disclosures, the analysts’ reactions to each, and regard is had to the applicant’s evidence as to price inflation/loss, which evidence is premised and dependent upon Bloomberg consensus decreasing in order for any share price inflation to be established.

632    First, in order for consensus to move down, there would have to have been an announcement of an expectation by Myer of NPAT which was less than consensus.

633    Second, there is no probative and compelling evidence that Myer had an expectation of NPAT of less than consensus at any time prior to 18 March 2015.

634    Third, even if Myer had an obligation to disclose at some point in time that it had an expectation of NPAT that was less than $98.5 million, all that would have been disclosed in light of the uncontradicted views held by and within Myer was that its NPAT expectation was now of an amount that was the same as or not materially different from consensus.

635    Accordingly, even if the applicant succeeds in demonstrating that Myer should have made a disclosure of a different expectation as to NPAT at some point in time earlier than 19 March 2015, on its own analysis and model used to demonstrate loss, no loss has been demonstrated. I will discuss this question in more detail later in my reasons.

636    For the moment, let me just re-state my principal conclusion concerning what Myer should have disclosed.

637    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.

638    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.

639    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 in order 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.

EVENT STUDY FRAMEWORK

640    Before getting into the detail of event studies, it is convenient at this point to say something about the expert evidence.

641    Three experts were called, two of whom gave evidence during a concurrent evidence session. Relative to the time taken up with the lay evidence, the concurrent evidence and the time taken up with the separate cross-examination of another expert was short and efficiently run. In the present context, to have fragmented the process by any delegation to a special referee would have been inefficient and expensive. Moreover, it would have denied me the benefit of having the relevant debate play out in real time in the theatre of trial so that questions of mixed fact and law concerning materiality, causation, loss and damage could properly be considered. In complex commercial class actions it is desirable to have experts available for the trial judge to prod and poke in order to achieve a competent understanding of the technical issues.

642    Let me make some preliminary observations concerning the three experts.

643    Mr Houston, an expert called by the applicant, is a financial economist and founding partner of Houston Kemp.

644    Mr Houston has extensive experience in the economic analysis of markets and the provision of expert advice in litigation, business strategy, and policy contexts. His career as a consulting economist was preceded by periods working in a financial institution and for government.

645    Mr Houston has directed a wide range of financial, competition and regulatory economics assignments during his consulting career. His work in the Asia Pacific region has principally revolved around the activities of the enforcement of regulatory agencies responsible for these areas. He has advised on merger clearance processes, competition proceedings involving allegations of anticompetitive conduct ranging from predatory pricing, anticompetitive agreements, anti-competitive bundling and price fixing. He also has considerable experience of infrastructure access regulatory matters, and intellectual property and damages valuation. In his securities and finance work he has advised on a large number of securities class actions, and on cost of capital estimation.

646    Mr Houston has acted as an expert witness in valuation, antitrust and regulatory proceedings before the courts, in various arbitration and mediation processes, and before regulatory bodies in Australia, Fiji, Malaysia, New Zealand, the Philippines, Singapore, the United Kingdom and the United States.

647    Prior to April 2014, Mr Houston was a director of the global firm of consulting economists, NERA Economic Consulting, where for twelve years he served on its United States’ Board of Directors, for five years on its global Management Committee and for sixteen years as head of its Australian operations.

648    I found his evidence on event studies to be very thorough and of significant assistance.

649    Now I note that some objections were taken by Myer to the admissibility of his evidence, but they lacked substance. Mr Houston had sufficient expertise for the purposes of expressing admissible opinions under s 79 of the Evidence Act 1995 (Cth). Further, in terms of the content of his evidence I was well able to distinguish between the assumptions that Mr Houston had made and the opinion evidence.

650    Dr Prowse, a US expert called by Myer, is a financial economist and a director of FTI Consulting, based in Dallas, Texas. He has been a senior economist and policy advisor in the Federal Reserve System, where he provided economic and financial policy advice to the chairman of the Federal Reserve Board and the President of the Federal Reserve Bank of Dallas on financial matters, including securities and credit markets. Dr Prowse has also served as a consultant economist for a year at the Bank for International Settlements in Basel, Switzerland. Dr Prowse has also served as an adjunct professor and has taught finance. He has published numerous articles on financial topics in solid academic journals such as the Journal of Finance, Journal of Financial Economics and Journal of Banking and Finance. Dr Prowse has extensive experience in securities, antitrust, intellectual property, breach of contract, and class action litigation. He has written a number of articles on the structure and operations of private equity funds.

651    Dr Prowse has had extensive experience in providing economic, financial and valuation analysis in valuation and securities-related litigation. He has experience in the valuation of public and private securities, including corporate and government bonds, equities, convertible preference shares, options, mutual fund shares, limited partnership interests, private equity funds, mortgage-backed securities, collateralized debt obligations, and other exotic instruments. He has also analysed loss causation, conducted event studies, estimated the statistical significance of stock price movements on particular event days, and calculated damages in a large number of securities-related cases, including shareholder class actions.

652    Like Mr Houston’s evidence I found his evidence on event studies of considerable assistance.

653    Both experts were well matched and the debate and competitive tension between them during the concurrent evidence session considerably assisted my comprehension and analysis of the real issues concerning the appropriate event study analysis. Contrastingly and contrary to suggestions made in other simpler cases, to have just had one court appointed expert would have impoverished the process. Competing views would not have been fully exposed. And any competitive tension that could have assisted to resolve such views would have been lost. In complex commercial class actions, the best mode of forensic testing should be adopted rather than the Holden Commodore variety.

654    Let me say something about the third expert who was separately dealt with.

655    Mr Andrew Molony, an expert called by the applicant on the question of materiality, is an equity capital markets advisor to institutional investors. He is a director of Molony Advisory Pty Ltd. Since 1995 he has worked in the securities industry and financial markets, principally on equity capital market related matters.

656    Mr Molony has considerable experience in investments and financial markets in Australian and international markets, including holding positions at Credit Suisse, Goldman Sachs JBWere and Transurban. In those positions his focus was originating equity financings for corporations, private equity firms, infrastructure funds and governments. He also managed relationships with institutional investors and external wealth advisory firms.

657    Mr Molony is a member of the Investor Representative Committee for the GPT Wholesale Office Fund and was a member of the Investor Committee for the Lease Australian Prime Property Fund, the AMP Australian Diversified Property Fund and the AMP Infrastructure Equity Fund from 2016 to 2017.

658    He has specialist expertise in listed equities including valuation and portfolio construction and management.

659    I found his evidence on questions of materiality to be helpful, although there were some limitations on the value of some of his evidence given that he had not been a research analyst and did not have direct experience on such matters.

660    Let me now turn to the evidence on event studies.

(a)    Overview

661    Let me begin with an overview of the technique drawn from Mr Houston’s evidence which was not the subject of any contest.

662    An event study is an empirical technique that measures the effect of a particular “event”, such as the release of information to the ASX, on the price of a company’s shares. The technique analyses the different factors typically affecting the daily movement in share prices, by reference to observed changes in the price of a particular share from one day to the next. Share price returns may be expressed in terms of the percentage movement in the share price or the log change in the share price, which is close to the percentage change for small movements. A log return is the ratio of the natural logarithms (log to base e rather than base 10) of two daily closing share prices. For example, the daily log return on day t is equal to: ln(pricet/pricet-1), where “ln” is the natural logarithm, “pricet” refers to the security price on day t and “pricet-1” refers to the security price one day prior to day t. Such analysis is then used to determine the proportion of the movement in a share price on a particular day (or days) that is likely to have been due to changes in conditions affecting the market in general, or the sector of the market in which the particular company operates, and that which was due to the release of company specific news. This may be referred to as a news event.

663    The proportion of the share price movement on any particular day that is likely to have been due to the release of company specific news can be estimated by reference to the difference between the observed price movement and that which would have been expected in the absence of any company-specific news. The extent of movement in a share price beyond that which would have been expected on account of market-wide, sector specific and/or random influences can be described as the abnormal return.

664    Where a statistically significant abnormal return arises on the day (or days) following the release of company specific information, it is reasonable to conclude that the relevant portion of the price movement that cannot be attributed to market-wide or sector specific influences was caused by the event of interest. Providing no other company specific news was released at the same or similar time, the abnormal return can be taken as a reliable estimate of the effect of the disclosure on the value of a company’s shares.

665    Event studies are widely used in the United States to measure the effect of alleged misconduct in securities markets. The technique has been accepted as meeting the standard for the admission of expert evidence established under the well-known Daubert standard. The technique provides testable results that may be replicated by other analysts, is supported by published literature, produces estimates with a known rate of statistical error, and has generally been accepted by the scientific community.

666    The event study framework is founded upon two long standing principles of financial economics, both of which can generally be presumed to be valid for actively traded securities.

667    First, at any particular point in time, the price of an actively traded security reflects all publicly available information; this is known as the semi-strong form of the efficient capital market hypothesis.

668    Second, the price of an efficiently-traded security reflects the present discounted value of the future cash flows expected to be generated by the underlying asset or the “true value”.

669    The efficient capital market hypothesis describes the relationship between available information and the current price of a traded asset, such as a share in a publicly listed company. The semi-strong form of the efficient capital market hypothesis holds that at any particular time, the price of a company’s shares incorporates all publicly available information relevant to the valuation of that company. It follows that as new information becomes available, investors’ perceptions as to the net present value of the company’s future cash flows may change, thereby creating an imbalance of willing buyers and sellers of the company’s shares at the existing price. This imbalance results in a correction to the share price.

670    But not all new information about a company will necessarily be expected to have a material effect on the price of its shares. Some information is not “price sensitive”. Information that is inconsequential to a company’s future earning potential cannot be expected to change investors’ collective valuation of the company, and so its share price. Alternatively, sometimes information that can be expected to cause investors to alter their valuation of a company, for example, movements in the market price of a particular product or service supplied by the company, may be inferred from publicly available data, and so will often be reflected in the price of a security ahead of any formal disclosure of those effects, say, in the form of a profit announcement.

671    Similarly, not all share price movements are caused by the release of company specific information. Share prices fluctuate daily in light of market-wide and/or sector specific events such as changes in interest or exchange rates and the macroeconomic environment in general, or changes in economic activity or trading conditions within a particular sector. Share prices also fluctuate due to random events that affect the balance of supply and demand for a particular stock. The change in a company’s share price on any one day therefore reflects investors’ collective response to a number of different factors including, but not limited to, company specific news.

672    Now there are three forms of the efficient capital market hypothesis.

673    The weak form suggests that only information on past prices is incorporated in the current price of an actively traded asset.

674    The strong form suggests that all public and private information is incorporated in the current price of a traded asset.

675    The semi-strong form suggests that all publicly available information is quickly and fully reflected in the price of a traded asset.

676    As Mr Houston has pointed out, the weight of evidence in the academic literature is that well developed securities markets in general, and the ASX in particular, exhibit price behaviour that is consistent with the semi-strong form of the efficient capital market hypothesis.

677    But if trading in a company’s shares is relatively illiquid, say due to the concentration of its shareholdings, or the company is only closely followed by a small number of investors or potential investors, then new information may not always be quickly reflected in its share price. In these circumstances, it is possible that share prices will not change in response to the release of significant news or, conversely, that share prices may move substantially even in the absence of any news. Where trading in a company’s shares is not consistent with semi-strong capital market efficiency, care must be taken before attributing significant share price movements to the release of company-specific news.

678    But where semi-strong capital market efficiency applies, the consequence is that share prices adjust quickly to reflect the discounted value of expected future cash flows, and investors’ expectations as to future cash flows and the appropriate, risk-adjusted discount rates, reflect all publicly available information. This means that an investor in a company’s stock armed with all publicly-available information will not be able to earn a rate of return that is persistently higher than the risk-adjusted return on a market-wide basket of stocks, such as the S&P/ASX 200.

679    Let me say something further on market efficiency.

(b)    Market efficiency

680    As I say, the event study technique is founded on the presumption that trading in the relevant security conforms with the efficient capital market hypothesis, and so the public release of new information is quickly incorporated into a company’s share price consistent with the posited semi-strong form of market efficiency. Mr Houston assessed the extent to which trading in MYR ED securities was likely to have been efficient over the relevant period.

681    He examined trading in MYR ED securities to assess whether the presumption of at least semi-strong market efficiency was valid for its securities during the control period, being 19 March 2014 to 18 March 2015 inclusive, that he adopted for the estimation of his market model. Further, he examined the particular question of the trading price responsiveness of MYR ED securities over the period between 1 January 2013 and 18 March 2015; for the remainder of the analysis I will use the expressions “MYR ED securities”, “Myer shares” and “Myer stock” interchangeably.

Cammer factors

682    In Cammer v Bloom 711 F Supp 1264 (DNJ 1989), the US District Court for the District of New Jersey adopted a set of guidelines for examining market efficiency in securities litigation. The court discussed five factors which it said support the presumption of efficiency in the market for a particular security. These five factors are the following.

683    The first factor is average weekly trading volume. A high average weekly trading volume contributes to the efficiency of a stock by allowing individual investors to buy or sell shares quickly and at low transaction costs. This concept is often referred to as the liquidity of the market in a particular asset. If willing buyers and sellers are not readily available and investors have to search or advertise for trading partners, these transaction costs impede the incorporation of new information into share prices. Weekly trading volume greater than one per cent of the total shares outstanding justifies a substantial presumption of efficiency and that a volume greater than two per cent a strong presumption; see Cammer at 1286 citing Bromberg A and Lowenfels L, Securities Fraud and Commodities Fraud (1988).

684    The second factor is the number of security analysts. The court considered the number of security analysts who report on a stock as another indication of market efficiency, on the following two bases. First, analyst reports can help disseminate information and provide informed analysis of the value of shares to market participants. Second, the number of analysts reflects the interest of investors in a stock. More investors produce more trading volume, which in turn allows new information to be incorporated more quickly into the stock price. There is no standard number of analysts that is said to imply market efficiency in relation to a particular stock.

685    The third factor is the existence of market makers and arbitrageurs. The court considered the presence of market makers and arbitrageurs in the market for a particular security as a factor supporting the presumption of market efficiency. Sophisticated and large investors are expected to detect even small deviations of a share price from its true value and to act immediately. Institutional investors have often been assumed to take the role of arbitrageurs since they employ sophisticated and complex valuation methods.

686    The fourth factor is the eligibility to file S-3 registration statements. In the United States, a publicly traded company may file an S-3 registration statement if it meets certain market capitalisation and filing requirements. The court considered the eligibility to file S-3 registration statements as a factor supporting the presumption of efficiency. The rationale was that only companies with a large market capitalisation and orderly filings qualify to file S-3 registration statements. Since this is not directly applicable in Australia, Mr Houston examined market capitalisation directly, as well as the number of shares available for active trading.

687    The fifth factor is the cause-and-effect relationship between news and stock price. By definition, stock prices in efficient markets quickly incorporate new information. Such a cause-and-effect relationship between news and prices implies that price reactions on days on which information about a company was released, either positive or negative, will typically be larger than price reactions on days without company related disclosures. Cammer highlights the importance of this factor stating that “[t]his, after all, is the essence of an efficient market and the foundation for the fraud on the market theory”.

688    Mr Houston noted that the first four Cammer factors did not of themselves provide conclusive answers to the question of whether or not prices react quickly to reflect new information and, consequently, whether or not trading in the security at issue was efficient, or otherwise. In contrast, the fifth factor, price reactions to unexpected news, uses statistical analysis to examine directly whether Myer’s share price movements respond to company-specific information in a timely manner. For these reasons, he placed particular emphasis on the fifth Cammer factor.

689    Let me discuss each of these factors in turn.

Average weekly trading volume

690    A stock’s liquidity refers to the ability of investors to buy or sell shares quickly without incurring high transaction costs, including the costs of causing significant movements in the security price. If willing buyers and sellers are not readily available and investors have to search or advertise for trading partners, such transaction costs impede the incorporation of new information into the share price.

691    Trading volume indicates the depth of the market and is a measure of market liquidity. In the US, weekly trading volume in excess of one or two per cent has been used as a legal standard in support for the presumption that a company’s shares were traded in an efficient market.

692    The average weekly trading volume for Myer during the control period was approximately 5.4 per cent of Myer’s total outstanding shares. This result lies above the threshold often cited in US court decisions and so provides support for the presumption of efficiency.

693    Mr Houston presented average weekly trading volume graphically as follows:

Weekly trading volume over the control period

Notes: Data on shares outstanding and trading columns are from Bloomberg. The volume of trading in weeks with less than five trading days is proportionally increased to five trading days.

Analyst coverage

694    The number of security analysts who report on a stock is an indication of market efficiency for two reasons. First, analyst reports can help disseminate information and provide informed analysis of the value of shares to market participants. Second, the number of analysts reflects the interest of investors in a stock. Although there are no clear rules as to how many analysts are necessary to determine if a presumption of efficiency should be made, US authority implies that more than four analysts lends weight to such a presumption. In Lehocky v Tidel Tech., Inc. 220 FRD 491 (SD Tex 2004) it was determined that the four analysts who covered the stock during the class period and who had an impact on the stock price had had a relatively neutral effect on the stock’s efficiency.

695    During the control period, at least 11 financial analysts covered Myer. These analysts were: APP Securities, Commonwealth Bank, Credit Suisse, EVA Dimensions, Evans & Partners Pty Ltd, Goldman Sachs, J.P. Morgan, Macquarie, Morgan Stanley, Octa Phillip Securities Ltd, and UBS. Each of these analysts published valuations/price targets and provided financial data regularly in their reports including forecasts of Myer’s earnings and financial positions.

696    The level of analyst coverage suggests that Myer was relatively well covered over the control period and the relevant period.

Institutional investors and arbitrageurs

697    The presence of institutional investors is an important factor contributing to the efficiency of trading in a company’s stock, with institutional investors considered to be market participants employing sophisticated and involved valuation methods. Such market participants are likely to detect even small deviations of a security price from its true value and act on them immediately.

698    The list of the top twenty security holders from Myer’s annual report provides some information on the number of shares held by institutional investors. Mr Houston presented the composition of the top twenty shareholders as at 23 September 2014, in the Table below. A significant percentage of Myer’s shares were held by institutional investors identified in the top twenty security holder listings (57.76 per cent) at this time.

Percentage ownership by top twenty shareholders

Shareholder

Number of shares

Percentage of shares outstanding

Institutions

329,212,976

56.21

Nominees

0

0.00

Private companies and individuals

2,835,000

0.49

Executives, Directors & Related Entities

6,225,782

1.06

Total

338,273,758

57.76

Source: Myer annual report 2014, p 117.

Notes: (1) Institutions includes institutional nominees. (2) Nominee is defined as a person or company – not the owner – in whose name a stock is registered. (3) Total percentage of shares outstanding (57.76 per cent) represents the percentage of shares outstanding that are held by the top twenty shareholders.

699    The substantial presence of institutional investors supports the presumption that Myer shares traded in an efficient market.

700    Now all that is so. But Myer went further for another purpose. Myer referred to the proportion of Myer’s shares which were held by the top 20 shareholders and by institutional investors and asserted that there was well known economic literature suggesting that institutional rather than retail investors make the trading decisions which impact the market and affect the retail price of securities. It cited in support of that proposition Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469 at [106]. All true. But I would also flag for yet another purpose that in that case I also said (at [72] and [73]):

[A]s the applicant has contended, the data reveals that the vast majority of actual and potential Newcrest shareholders held, or would have been expected to buy, small parcels of Newcrest shares, and were unlikely to have at their disposal the “information advantages” available to an institutional investor.

In fact, when one looks at shareholders and claims, the applicant is more representative than any institutional investor.

(Original emphasis).

701    A similar point can be made by reference to the profile of the Myer share register, which was at the relevant time similar to Newcrest’s share register.

702    As I have said, Myer’s 2014 annual report sets out shareholder information as at 23 September 2014. The distribution of shareholders and shareholdings shows that as of that day Myer had 52,981 shareholders. Of them:

(a)    25,235 or 47.6% held between 1 and 1,000 Myer shares;

(b)    18,989 or 35.8% held between 1,001 and 5,000 Myer shares;

(c)    4,333 or 8.2% held between 5,001 and 10,000 Myer shares;

(d)    4,220 or 8.0% held between 10,001 and 100,000 Myer shares; and

(e)    204 or 0.4% held 100,001 or more Myer shares.

703    If one takes the closing share price for Myer shares on 23 September 2014 for doing the basic arithmetic, approximately 91.6% of Myer’s shareholders held a parcel of Myer shares with a total value of $20,200 or less, 83.5% held a parcel of Myer shares with a total value of $10,100 or less, and 47.6% of Myer’s shareholders held a parcel of Myer shares with a total value of $2,020 or less.

Market capitalisation and insider holdings

704    Larger companies with widely held shares tend to be actively followed by informed market participants, which enhances the efficiency of trading in those shares. During the control period, Myer’s market capitalisation, that is, the total number of shares on issue multiplied by the current price, ranged from approximately $764 million to $1,558 million, averaging approximately $1,151 million. By comparison, during the same time period, the average market capitalisation for domestic companies listed on the ASX was between approximately $787 million and $876 million. This can be graphically illustrated as follows.

Market capitalisation of Myer and ASX-listed companies over the control period

705    By way of reinforcement, directors held only approximately 2.3 per cent of Myer’s shares. Where such holdings are both substantial and not actively traded, they tend to indicate a reduced pool of shares available for public trading. But this was not the case in relation to Myer.

706    These tests lend significant support to a presumption of market efficiency in the trading of Myer shares. The level of Myer’s market capitalisation was consistent with the average of domestic companies listed on the ASX. Further, insider holdings that may not have been actively traded were minimal and unlikely to create a constraint on active trading.

Price reaction to unexpected news

707    The price of shares traded in efficient markets quickly incorporates new information about the company. This implies that the price reaction on days on which information about a company was released, either positive or negative, will typically be larger than price changes on days without company-related disclosures, assuming those releases were made before the close of the market. It follows that the trading price of Myer shares can be analysed to assess whether it responds to company specific news, thereby providing empirical support for the presumption of market efficiency.

708    There are two principal steps involved in such analysis.

709    The first step is to identify those days on which information about the company was released (i.e., news days) as opposed to those on which there was little or no company specific news (i.e., no news days).

710    The second step is to estimate the statistical significance of the abnormal return on each day and test whether the market responded differently on news days as compared with no news days.

711    Mr Houston undertook this analysis in relation to Myer over the period the 1 January 2013 to 18 March 2015 inclusive.

712    First, he defined as a “news day” each day on which Myer made an announcement that was filed with the ASX and which was deemed by the ASX to be “price sensitive”. Normal trading on the ASX closes at 4.00 pm. He therefore treated all such announcements to the ASX that were made after 4.00 pm as occurring on the following business day. However, he repeated the test using 3.30 and 4.30 as the cut-off point, and the results of the test remain unchanged. The ASX identified (on an ex ante basis) with a dollar sign, “$”, each of those announcements that it considered to be price sensitive. The ASX classification therefore represented an objective means of identifying “Myer specific news days”, i.e., news releases that related directly to the operation of Myer.

713    Second, he analysed the statistical significance of the abnormal return on each day of the 1 January 2013 to 18 March 2015 period.

714    He calculated the abnormal returns in the same manner as described above, i.e., he estimated the predicted return on each day of the control period based on the log return of the All Ordinaries and ASX 200 Consumer Discretionary indices, with dummy variables to control for days on which half and full year financial results were released, and the calculated the abnormal return as the difference between the actual return and the predicted return. He then tested for statistical significance by calculating the t-statistics of the abnormal returns. These are calculated by dividing each day’s abnormal return by the standard error of the regression. A t-statistic greater than approximately 1.96 indicates that the share price movement was significant at the five per cent level of significance with 552 degrees of freedom.

715    He then tested whether the fraction of “news days” with statistically significant price movements is significantly different from the fraction of non-news days with statistically significant price movements. This is known as a “z-test”, since it tests the statistical significance by means of a z-statistic. The z-statistic is similar to the t-statistic used in the t-test. A z-statistic greater than approximately 1.96 indicates the difference between proportions is significant at the five per cent level of significance.

716    He presented the results of a “z-test” for the existence of a statistically significant difference in the abnormal return on news days, as compared with non-news days, over the period he identified above as set out in the Table below.

Results of z-test for news and non-news days, 1 January 2013 to 18 March 2015

News days

No news days

Number of days with statistically significant price movements

6

29

Total number of days

8

516

Percentage of days with statistically significant price movements

42.86%

5.32%

z-test statistic

5.72

p-value of difference

0.00

717    There were 14 news days in the period from 1 January 2013 to 18 March 2015. Statistically significant abnormal returns were observed on six of these 14 news days, or 43 per cent. In contrast, of the remaining 545 trading days in the period, 29 days (or five per cent of days) had statistically significant abnormal returns.

718    After obtaining the percentage of both news days and non-news days with significant abnormal returns (i.e., 43 per cent and five per cent respectively), Mr Houston performed a z-test to see whether the difference between these two percentages was statistically different from zero. The p-value resulting from the test was 0.00, less than 0.05, and so he concluded that the percentage of news days with statistically significant reactions was different from the percentage of no news days with statistically significant price reactions, at a five per cent level of significance. The results of this test confirmed that, on average, the trading price of Myer shares responded to price sensitive company announcements.

719    He also conducted this same analysis over the control period by way of an additional check as to the robustness of the market model and abnormal returns he developed. He undertook the same steps he described above to identify news days and the statistical significance of the abnormal return on each day, and presented as set out in the Table below the number of days with statistically significant price movements, delineated by whether news was released on that day.

Proportion of news and non-news days, 19 March 2014 to 18 March 2015

News days

Non-news days

Total days

Number of days with statistically significant price movements

4

14

18

Number of days with no statistically significant price movements

4

231

235

8

245

253

720    Since the number of news days during the control period was low, and the number of news days with statistically significant price movements was less than five, the central limit theorem did not apply and a normal distribution of the data could not be assumed. Mr Houston therefore could not use the z-test. Instead, he uses the Fisher exact test, a nonparametric test, to test the difference in the proportion of statistically significant movements on news days and non-news days. The two-sided Fischer test had the null hypothesis that the proportion of observations between two samples was equal, in this instance, the proportion of news days with statistically significant price movements was equal to the proportion of non-news days with statistically significant price movements.

721    The Fischer test produced a p-value of 0.001. Since this was less than 0.05, he concluded that the proportion of news days with statistically significant price movements was different to the proportion of non-news days with statistically significant price movements, at the five per cent level of significance.

Summary

722    Based on the above analysis there is little doubt in my mind that it is a robust assumption to make, applying the Cammer factors, that the semi-strong version of the efficient capital market hypothesis applied to the trading in MYR ED securities at all relevant times.

(c)    Conditions affecting reliability

723    The reliability of an event study in measuring the full effect of the disclosure of new information on the price of a security increases if two other conditions are satisfied.

724    First, the strength of any inference as to the likely cause of any price movement or abnormal return is affected by the extent to which the release of company specific information is a well-defined event. If the particular time at which company specific news is released to or absorbed by the market is not clear, it becomes more difficult to attribute a particular share price movement to the information of interest. For example, if information is released over a number of days, or is leaked prior to its official announcement or is otherwise anticipated by the market, this may pose problems for identifying the timeframe over which the price reaction should be measured.

725    As a practical matter, when the event study technique is applied to a well-followed security, it is usually straightforward to determine whether these indicators or criteria for a well-defined event are satisfied. This is because a history of news events about the company over the relevant time period is publicly available on electronic databases, including the precise time that the news was released to the market. But in circumstances where these criteria are not satisfied, additional information and steps may be needed to isolate the price reaction attributable to the event of interest.

726    Second, a prerequisite for drawing inferences as to the causal link between the release of information and any associated price reaction is the ability to isolate the effect of confounding news. In this context, confounding news amounts to any disclosure that may be relevant to the valuation of a company’s shares and became known around the same time as the disclosure of interest, but for which there is no question as to its timeliness or accuracy.

727    Where two or more items of information are released to the market on the same day, it may be difficult to separate their respective effects on a share price. In order to estimate the likely separate price effect of each item of news, other techniques must be employed. These might include estimating the value of particular information through discounted cash flow (DCF) analysis, a review of analyst commentary and so on.

728    To summarise, for the purpose of assessing the share price effect of news released to the market, the reliability of an event study is improved where:

(a)    trading in the company’s shares is efficient, at least to the semi-strong form of capital market efficiency;

(b)    the event of interest is well-defined, in the sense that the time at which information became available to the market is known; and

(c)    the effect of the relevant news is capable of being isolated from the effect of any simultaneously released and confounding news.

(d)    Three steps of an event study

729    Although there are different ways of conducting an event study, in my view the approach that Mr Houston generally adopted in his report was suitable. It can be described by reference to three distinct steps.

730    Step 1 identifies days of interest and predicts company share price returns on those days.

731    Step 2 computes “abnormal returns”, that is, the difference between the actual return and the predicted return, to remove the effect on the share price of general market and sector specific movements.

732    Step 3 determines whether the abnormal return on the days of interest is statistically significant.

733    It is appropriate to describe these three steps in more detail.

Step 1: Predict company share price returns

734    The first step in performing an event study is to predict the share price returns for the company of interest from one day to the next, with particular reference to the “event days” that are the focus of the analysis. The predicted share price return is the expected change in the share price in the absence of any company specific event.

735    Predicted share price returns are based on the historical correlation between a company’s share price returns and the returns on a market and/or industry index, which serves to account for market movements that affect all companies listed on the stock exchange or all companies that operate within a particular sector. As for share prices, returns on a market index are defined as the percentage or log change in closing value from one day to the next. The predicted returns are calculated over an event “window”. This is typically defined as the period from the close of trading the day before news of the relevant event enters the market, to the close of trading on the day that the share price is likely to have assimilated the news which might be several days after the release of information to the market.

736    There are a number of approaches to predicting the returns of a company’s shares that have been accepted in the academic literature, but most event studies use what is called the “market model”. The market model conforms to the following specification:

Predicted company return = α + β1(market index return) + β2(industry index return)

737    The market model predicts the company’s daily share price returns as a constant α (alpha), plus the coefficients β (beta) times the daily return in a market or industry index. The inclusion of an industry index return is optional.

738    The coefficient beta conveys the nature of the relationship between the returns on a market or industry index and the returns on a company’s share price. For example, if a company’s share price has a beta equal to 0.5, this means that if the market index were to increase by ten per cent, it would be expected, everything else held constant, that the company’s share price would increase by five per cent. This implies that the company’s share price has relatively low sensitivity to changes in market-wide conditions. Alternatively, for a stock that is more sensitive to market movements, say with a beta equal to 1.5, it would be expected that for every ten per cent increase in the market index, everything else held constant, the company’s share price should increase by fifteen per cent.

739    The coefficient alpha is an additional although usually very small factor in the predicted return of an individual stock. For a particular period of time over which beta and alpha are measured, alpha is the expected daily return on the individual stock when there is no change in the market index. In other words, on days when the index is not making any contribution to the movement in the share price, there is still an expected return in the amount of alpha.

740    Typically, the values of alpha and beta are estimated simultaneously using regression analysis on a sample of daily returns. Regression analysis is an empirical method that uses the observed correlation between two variables to estimate the effect of a change in one variable on the other. For the purpose of developing a market model in an event study, regression analysis is typically performed using a sample of a company’s daily share price returns and daily returns on a market and/or industry index over the year preceding the relevant period or event under consideration (the control period). The market model thus estimates the expected share price return for any given day on the basis of historic returns over the preceding year.

Step 2: Compute abnormal share price returns

741    The second step in performing an event study is to calculate the “abnormal return” for each day of the event window. The abnormal return is equal to the actual return, i.e., the observed change in the company’s share price, minus the predicted return, i.e., the change in the share price as predicted by the market model. In other words, it is the amount of the share price return that is not explained by broad market movements.

Step 3: Assess whether abnormal returns are statistically significant

742    As I have already said, share prices adjust continuously as information becomes available that affects a company’s expected future cash flows. Such information may arise in relation to a multitude of influences, such as changes in the macroeconomic environment and random events that affect the supply and demand for a particular stock. The abnormal return observed on any given day is not therefore necessarily a response to the release of company specific news. In order to determine whether an observed share price change is likely to be due to the release of company specific news, it is necessary to make an assessment as to whether the abnormal return is statistically significant.

743    In the context of an event study, statistical significance is best regarded as a measure of the likelihood that an observed abnormal return may simply have been caused by background noise or random chance, in the absence of company specific news. In other words, it amounts to an evaluation of whether or not it is likely that a share price could have moved as far as it actually did had there been no company specific news.

744    If the abnormal return on the day of an announcement is not statistically significant, then it could easily have been caused by unexceptional, day-to-day fluctuations in share prices. However, if the abnormal return is statistically significant, this suggests that a price movement of equal or greater magnitude was unlikely to have been observed in the absence of company specific news.

745    A widely accepted standard for evaluating whether the actual change in price deviates from the predicted change in price by a statistically significant amount is whether or not the abnormal return is significant at the five per cent level (0.05). In general, an abnormal return is statistically significant at the five per cent level if, based on the volatility in daily returns over the year on which the market model was estimated (the control period), abnormal returns greater than that level are expected less than five per cent of the time. In other words, the abnormal return on a particular day must be large enough for there to be a less than five per cent chance that it would be observed simply due to statistical “noise” or random fluctuation in price.

746    For example, suppose that an abnormal return of four per cent is observed on the day of an announcement made by a company to the ASX. Based on the up and down movements in the abnormal returns over the period of the market model, assume that a four per cent abnormal return is expected to occur only once every 50 days. This is less than five per cent of the time. In this example, one would conclude that the four per cent abnormal return was significant at the five per cent level.

747    There are several methods for calculating whether or not an observed abnormal return is statistically significant at a particular level, with the most commonly used being the t-test. The t-test involves the calculation of a “t-statistic”.

748    Let me elaborate. Daily abnormal return t-statistics are equal to the daily abnormal return divided by the standard error of the regression. Cumulative abnormal return t-statistics are equal to the cumulative abnormal return divided by [s × √N], where “s” represents the standard error of the regression and “N” represents days cumulated.

749    If the t-statistic is greater (or less than) a specific positive (or negative) value, as calculated for each particular test, this indicates statistical significance. This method assumes that the distribution of daily abnormal returns for the stock in question forms a particular bell-shaped curve, known as a normal distribution. A normal distribution describes a distribution of random variables where the observed measurements tend to cluster symmetrically around a central value, which gives rise to a bell-shaped distribution curve. Such distributions can arise in practice, e.g., the heights or weights of a group of people or the exam results of a class of students could be normally distributed.

750    Where the daily abnormal returns derived from the market model do not follow a normal distribution, other statistical methods that do not rely on any prior distributional assumptions can be used to determine statistical significance.

751    In some instances, it may take more than one trading day for a share price to reflect the full implications of new information. The number of days that it does take for a stock price to react to the news (the event window) can be determined by examining the statistical significance of the price reactions on each successive day. If the abnormal returns on consecutive, subsequent trading days are also individually and cumulatively statistically significant, the event window should generally be extended beyond the (trading) day of the disclosure, provided there is no intervening disclosure of separate news. If the event window is extended to include additional days, the price reaction is calculated as the cumulative abnormal return over the consecutive days. The cumulative abnormal return is simply the sum of the daily abnormal returns. Statistical significance of the cumulative abnormal return is defined similarly to the statistical significance of individual returns, i.e., the probability that the abnormal return would have occurred in the absence of news is less than five per cent.

(e)    True value and share price inflation

752    By estimating the likely effect on a share price of information that a company has failed to disclose, it is possible to construct a time series of values that represent the likely share price effect of the disclosure on each day over a period of time (a daily inflation series).

753    Had the information that was not disclosed to the market been revealed in a timely manner, the share price would have changed at that time by the amount estimated by reference to the corrective disclosure. Assuming that the market for the relevant securities trades with semi-strong efficiency, they subsequently would have traded at their “true value”. The difference between the observed price, absent the timely and accurate disclosure of material information, and the price at which the shares would have traded following a timely disclosure (the true value) can be described as the extent of share price inflation.

(f)    Share price effect of information that was not disclosed

754    The event study framework described above can be used to assess the effect on a share price of information disclosed by a company. However, it is often necessary to assess the effect on a company’s share price of its failure to disclose information in an accurate or timely manner.

755    In many cases a company’s failure to disclose material information is brought to the attention of investors in the form of a corrective disclosure, i.e., the release of accurate information that had either been misrepresented in an earlier disclosure or simply not been disclosed at all. Corrective disclosures may be made by the company in question or may come to the attention of investors by other means.

756    Regardless of the means by which information is disclosed, the change in a company’s share price at the time of a corrective disclosure provides the basis for an assessment as to how its share price may have changed had the information been disclosed when it first became known. An event study amounts to a framework for making that assessment, the focus of which is the price movement on the day of, or during the period of days following, the corrective disclosure.

(g)    Constant dollar and constant percentage approaches

757    There are two approaches commonly applied to determine the extent of inflation in a company’s share price.

758    The first approach is the constant dollar approach. Under this approach, the effect on the share price of a hypothesised disclosure of information is estimated by reference to the observed effect on the share price, in dollar terms, of the actual disclosure of the same or similar information.

759    The second approach is the constant percentage approach. Under this approach, the effect on the share price of a hypothesised disclosure of information is estimated by reference to the observed effect on the share price, in percentage terms, of the actual disclosure of the same or similar information.

760    The question of whether to adopt the constant dollar approach or constant percentage approach to estimate share price inflation depends upon the nature of the announcement that is being assessed.

761    Finance theory establishes that on average the value of a firm is equal to the net present value of its expected future cash flows. It follows that a company may experience an increase or decrease in its share price upon the release of new information that alters expectations as to the level of future cash flows or the risks associated with those cash flows.

762    Generally, the constant dollar method is applied in circumstances where the effect of a disclosure on earnings has a one-off effect on cash flows or reduces cash flows by a constant amount each year, and does not materially alter perceptions as to the risk associated with future cash flows.

763    Contrastingly, the constant percentage method is typically applied in circumstances where a disclosure affects the market’s assessment of future earnings, either by altering its expectations as to the growth of future earnings and/or the level of risk associated with those earnings.

764    By way of an example as to the relevance of the constant percentage approach in these circumstances, suppose that a company was expected to earn $9 million per year in perpetuity and the market had ascribed a discount rate of five per cent to the company’s future cash flows. If the company had 100 million shares on issue, then the value of its shares would be $1.80 per share. If an announcement was then made that resulted in an increase in the market’s discount rate to nine per cent, the company’s share price would fall to $1.00 per share. This would be a decline of $0.80 in absolute terms and 44.4 per cent in relative terms.

765    Now suppose that at an earlier point in time prior to the announcement, the company was expected to earn $10 million per year in perpetuity. At this point in time the market would have valued the company more highly at $2 per share. If the same announcement that caused an increase in the market’s discount rate was made at this point in time, the company’s share price would fall to $1.11 per share. This would be a decline of $0.89 in absolute terms and the same 44.4 per cent in relative terms.

766    This example illustrates that an announcement that changes the market’s assessment of the growth or risk of a company’s ongoing earnings will cause the same percentage change in the share price regardless of the level of the initial share price. The change in the company’s share price in the above illustrative example was 44.4 per cent, regardless of whether the initial share price was $1.80 or $2.00.

767    When the periodic payments are expected to increase at a given rate each period, its present value is calculated by dividing the payment in the first period by the discount rate, less growth rate. Taking the previous example, suppose that a company was expected to earn $9 million in period one, the market had ascribed a discount rate of five per cent to the company’s future cash flows, and the company had 100 million shares on issue. If the company’s future cash flows are expected to grow at a rate of one per cent each year, then the value of its shares would be $2.25 per share. If an announcement was made that resulted in the market reducing its expectations of the company’s growth rate to 0.5 per cent, then that value of its shares would fall to $2.00 per share.

768    In contrasting these approaches, I should address a misconception relating to the application of the constant percentage approach to assessing share price inflation, as distinct from its consideration in US cases in the context of assessing damages under US requirements.

769    Some US cases have been incorrectly cited in support of a proposition that the constant percentage approach has been discredited. But these cases generally relate to the estimation of damages in line with the decision in Dura Pharmaceuticals, Inc. v Broudo 544 US 336 (2005). But these cases relate to the assessment of damages under particular US legal requirements, as distinct from the determination of the appropriate estimate of inflation in the price of a security.

770    In the US, an assessment of the effect of a corrective disclosure typically involves three steps (Tabak D, “Implications for Market Efficiency and Damages Analyses of Plaintiff Interpretations of Halliburton II’s Statement that ‘market efficiency is a matter of degree’” (2015) 46(3) Loy U Chi LJ 467-484, 480-481). These steps involve:

(a)    calculating the price reaction associated with the corrective disclosure, i.e., the abnormal return that has been adjusted to remove any effects of confounding news;

(b)    translating the price reaction associated with the corrective disclosure at the end of the class period into a measure of inflation at earlier points in time, in this context where two of the most common approaches are the constant percentage approach and the constant dollar approach; and

(c)    finally, turning the inflation into damages; in this regard any legal requirements such as limitations from the Private Securities Litigation Reform Act 1995 or any requirements that are generally interpreted to flow from Dura are implemented, i.e., inflation estimates may need to be adjusted to comply with the loss causation requirements of the securities laws.

771    Dura endorsed an interpretation of loss causation that requires that an adjustment be made to the constant percentage method in the process of going from an estimate of share inflation to an estimate of the damages suffered by a particular party (Tabak D, Inflation and damages in a post-Dura world” (NERA Economic Consulting, 25 September 2007) p 1).

772    Prior to Dura, loss causation was generally viewed as either the amount that an investor overpaid at the time of the purchase or as the decline in the value due to the disclosure. However, in Dura it was ruled that an inflated purchase price is not by itself sufficient to establish loss causation. Now the findings in Dura relate to a specific interpretation of loss causation and so have affected the calculation of damages in the US.

773    But even under Dura, the inflation in the stock price should be estimated using the method that is appropriate given the economic and financial allegations in the case. For example, Dr David Tabak states that (Tabak (2007) p 10):

[t]his part of the approach recognizes that while courts, even the Supreme Court, may issue rules affecting what types of losses are legally recoverable, the analysis of the effects of misrepresentations on a stock price is ultimately an economic or financial issue independent of how that analysis fits into the prevailing legal framework.

774    In summary, the findings of Dura that have on occasion been incorrectly cited as discrediting the constant percentage approach concern a different, subsequent step in the applicable process in that jurisdiction, specifically, that for assessing damages due in circumstances where a trader has bought and sold shares during the period when a share price was inflated.

APPLICATION OF EVENT STUDY FRAMEWORK

775    Mr Houston applied an event study to disclosures made by Myer in order to determine the extent to which the announcement made by Myer on 19 March 2015 could be said to have caused a movement in the price of Myer shares, and if so the amount of the share price movement that can be said to have been caused by the announcement of the relevant information, i.e., the matters the subject of Myer’s ASX announcement on 19 March 2015, in respect of Myer’s outlook for FY15.

776    As part of that event study, he estimated a market model to explain movements in Myer’s share price by reference to both Standard and Poor’s (S&P) ASX All Ordinaries index and the S&P/ASX 200 Consumer Discretionary index. He estimated his model by reference to a control period of 12 months, ending immediately prior to Myer’s 19 March 2015 disclosure, i.e., 19 March 2014 to 18 March 2015 inclusive.

777    Dr Prowse also performed an event study with the same objective. He estimated a market model that sought to explain changes in Myer’s share price by reference to the same market-wide index adopted by Mr Houston (the ASX All Ordinaries index), but in combination with a bespoke index of six comparator companies selected by him. Dr Prowse’s bespoke index replaced the industry index (i.e., the S&P/ASX 200 Consumer Discretionary Index) that had been adopted by Mr Houston. Dr Prowse constructed this index himself. He weighted each of its constituent companies equally by reference to their daily returns over the relevant period.

778    Dr Prowse also estimated his market model over a one year control period, but in contrast with Mr Houston he took this to be the six months either side of Myer’s 19 March 2015 disclosure, i.e., from 19 September 2014 to 18 September 2015.

779    So, there are two principal distinctions between the market model adopted by Dr Prowse and that adopted by Mr Houston, being:

(a)    the different industry variables used in their respective market models; and

(b)    the different control periods over which their respective market models were estimated.

780    In presenting his event study analysis, Mr Houston reported results using different market indices, being the S&P/ASX 100 and the S&P/ASX 200 in addition to the one he ultimately used, the All Ordinaries Index, and mentioned that a shorter control period was also tested. The model Mr Houston selected had according to Mr Houston a higher proportion of the daily variation in Myer’s share price explained by the variations in the benchmark index and best explained movements in Myer’s share price relative to the versions of the market model that Mr Houston tested with other market indices.

781    But according to Dr Prowse, the industry index that Mr Houston used was conceptually flawed. In addition, according to Dr Prowse, Mr Houston did not choose the appropriate control period to use according to his own criteria. Dr Prowse purported to correct for these two issues, and constructed a market model that explained movements in Myer’s share price that he considered to be much better than Mr Houston’s market model.

(a)    Details of the model-control period and indices

782    Mr Houston developed a market model to estimate the relationship between daily movements in the price of Myer’s shares, and market-wide and industry influences. As I have indicated, in developing any market model, two principal judgments must be made:

(a)    the sample period over which the relationship between the individual stock price and market movement has to be estimated; and

(b)    one must also determine the appropriate grouping of securities, usually in the form of a benchmark index, that best explains market-wide influences on the stock price of interest.

783    The sample or control period of the model needs to extend over a sufficient number of trading days to allow the relationship, expressed as the beta coefficient, between the company’s share price and the benchmark index to be estimated with reasonable precision. However, on the other hand, a longer sample period may also cover a period in which the nature of the relationship changes, which may cause the true value of the beta to shift. In practice, market models are most commonly estimated over a year, or approximately 252 trading days.

784    In the present case, Mr Houston estimated the market model for Myer share prices over the 12 month period immediately prior to Myer’s 19 March 2015 disclosure, i.e., 19 March 2014 to 18 March 2015 inclusive. This period contains 253 trading days. He selected this control period for two main reasons.

785    The first reason is that it is the closest period that precedes 19 March 2015. Using a control period close to Myer’s 19 March 2015 announcement ensures that the relationship between Myer’s stock and index changes is as similar as possible to the period for which he estimates abnormal returns.

786    The second reason is that it has higher explanatory power than an alternative, shorter period. Mr Houston tested market models that were estimated using an alternative, six-month sample, however, the proportion of the daily variation in Myer’s share price explained by the variations in the benchmark index is higher under the market model that was estimated using a 12 month control period.

787    Using this control period, Mr Houston estimated a number of potential market models, each utilising different market indices and an industry index (the S&P/ASX 200 Consumer Discretionary Index). His purpose in estimating several models, each using different market indices, was to establish the best estimate of the relationship between the price of Myer shares and market and industry-wide events as represented by the beta coefficient. The different market indices that he used in estimating potential market models were:

(a)    the S&P/ASX 100 Index;

(b)    the S&P/ASX 200 Index; and

(c)    the All Ordinaries Index.

788    According to Mr Houston, these indices are all commonly used measures of the performance of a diversified portfolio of shares in companies listed on the ASX, with their constituent securities differing by market capitalisation. For example, the S&P/ASX All Ordinaries Index comprises the largest 500 domestically listed companies by market capitalisation, whilst the S&P/ASX100 comprises 100 ASX listed companies selected for market capitalisation and liquidity.

789    Mr Houston estimated market models for each of these potential indices using Myer’s daily share price returns, the relevant market index returns and the industry returns. He calculated the price returns using daily closing share price data and index value data from Bloomberg LP, with Myer’s share price adjusted by Bloomberg for dividends, share splits and acquisitions. His market models involved separately regressing the daily returns in the price of Myer shares against the daily returns in each of these market indices and the industry returns over the control period. Mr Houston also included two dummy variables to control for the effects of the release of the half year results for FY14 on 20 March 2014 and the release of the full year results for FY14 on 11 September 2014. Mr Houston set out the results and principal descriptive statistics for the three models as set out in the Table below.

Market models estimated using market indices and an industry index

Market index

S&P/ASX 100

S&P/ASX 200

All ordinaries

α

(standard error)

-0.002

(0.001)

-0.002

(0.001)

-0.002

(0.001)

β1, market index

(standard error)

0.591**

(0.285)

0.641**

(0.288)

0.734**

(0.300)

β2, industry index (i.e., S&P/ASX

200 Consumer Discretionary)

(standard error)

0.539**

(0.251)

0.498*

(0.255)

0.445*

(0.258)

Adjusted R-Squared

0.275

0.277

0.280

Standard error of the regression

0.020 (df = 248)

0.020 (df = 248)

0.019 (df = 248)

Note: *p<0.1; **p<0.05

Notes: (1) All market models are estimated using data from the 12 month control period described above. (2) Adjusted R-squared is a measure of the proportion of variation in the dependent variable (i.e., Myer’s price returns) that is explained by the variation in the independent variables (i.e., index returns), adjusted for the number of independent variables. (3) The standard error of the regression is a measure of the typical variability in Myer’s abnormal returns.

790    Mr Houston selected the market model estimated using the All Ordinaries Index and the S&P/ASX 200 Consumer Discretionary Index for use in his analysis, because this model explained the highest proportion of Myer’s security price movements during the control period.

791    The t-statistics are test values for the hypothesis that the true relationship between index return and share price return is zero, that is the null hypothesis. The t-test has an associated significance level, which represents the probability of erroneously rejecting the null hypothesis. The critical value associated with the t-distribution is 1.97 for a 0.05 (5 per cent) level of significance, and 1.65 for a 0.10 (10 per cent) level of significance with a sample size of 253 and four independent variables. The t-statistic for β1 is 2.45, which is well above this level. The t-statistic for β2 is 1.73. In this regression, the coefficient of the All Ordinaries Index is significant at the five per cent level, and the coefficient on the S&P/ASX 200 Consumer Discretionary Index is not significant at the five per cent level, although it is significant at the ten per cent level, with a p-value of 0.0853. Although this is relatively low, the addition of this variable improves the overall model fit, as indicated by the increase in adjusted R-squared. The adjusted R-squared of the univariate regression (i.e., without the S&P/ASX 200 Consumer Discretionary Index) is 0.274 and the adjusted R-squared of the multivariate regression (i.e., with the S&P/ASX 200 Consumer Discretionary Index) is 0.280.

792    In other words, of the models that Mr Houston tested, the model that utilised the All Ordinaries Index and the S&P/ASX 200 Consumer Discretionary Index best explained, according to Mr Houston, movements in Myer’s share price during the period 19 March 2014 to 18 March 2015.

793    Mr Houston’s preferred market model has an α of -0.002, a β1 of 0.73, and a β2 of 0.44. The β1 estimate of 0.73 indicates that, all else being equal, if the All Ordinaries Index rises (or falls) by one per cent, the value of a Myer share can be expected to rise (or fall) by an average of 0.73 per cent. The β2 estimate of 0.44 indicates that, all else being equal, if the S&P/ASX 200 Consumer Discretionary Index rises (or falls) by one per cent, the value of Myer shares can be expected to rise (or fall) by an average of 0.44 per cent.

794    Now there was debate between the experts concerning the control period. It is appropriate to elaborate on some aspects of the debate.

Control Period

795    Mr Houston stated that his justification for choosing his model’s control period was that it was the closest period preceding the event date, 19 March 2015, and it produced a model with higher explanatory power than a model with a shorter period. But according to Dr Prowse, he was able to improve the explanatory power of the model by adjusting the control period to be even closer to the event date than the model chosen by Mr Houston. Dr Prowse used a control period that surrounded the event date. This period surrounded the event date by six months in each direction, rather than extending twelve months before the event date. The market model used a control period of 19 September 2014 through 18 September 2015 and included dummy variables for half‐year and full‐year earnings announcements on 19 March 2015 and 3 September 2015. For a model run over this period but using the same industry index as Mr Houston, the adjusted R‐squared was 0.43. Using this control period and Dr Prowse’s industry index increased the explanatory power of the model even further to 0.47. The following Table reports on the results.

Improvements Upon Mr Houston’s Market Model

796    I will refer to this improved model, shown in the shaded column in the above Table, as the FTI market model.

797    Next, Dr Prowse performed an event study for Myer stock in the same manner as Mr Houston, but with the FTI market model. Applying the improved market model to the event study on Myer’s 19 March 2015 announcement yielded an abnormal price decline of $0.144 or 9.46%, which was statistically significant at the 5% level. On each of the following three trading days, the abnormal return was not statistically significant at the 5% level, and on the fourth day it was positive and statistically significant at the 5% level. I will refer to this model as the FTI event study. The following Table reports on the results.

FTI Event Study

798    Dr Prowse concluded that the market model used in Mr Houston’s event study was not the most appropriate market model to use by Mr Houston’s own criteria, and resulted in an artificially inflated estimate of the abnormal price decline on 19 March 2015 in Myer’s stock. Using an improved market model in an event study resulted in a conclusion that the abnormal price decline on 19 March 2015 was approximately 18% smaller than as calculated by Mr Houston (calculated as (11.5% ‐ 9.46%) / 11.5% = 17.77%).

799    Making this one correction to Mr Houston’s analysis, but holding all else constant, resulted in estimated share price inflation amounts that were approximately 21% lower than reported by Mr Houston under his upper bound counterfactual.

800    Dr Prowse contended that Mr Houston did not choose the appropriate control period according to Mr Houston’s own criteria, which he interpreted as preferring and comprising:

(a)    the closest period preceding the event date, 19 March 2015; and

(b)    the model with the highest explanatory power when compared to a model with a shorter period.

801    Now as I have said, Dr Prowse stated that he was able to able to improve the explanatory power of Mr Houston’s model by adjusting the control period to be even closer to the event date than the model chosen by Mr Houston.

802    Dr Prowse selected a control period that encompassed the event date by six months either side of it, i.e., the period spanning 19 September 2014 through 18 September 2015. Now Dr Prowse cited Tabak and Dunbar by way of support for his choice of control period, since they acknowledged three potential choices for the control period including surrounding the event window. But Dr Prowse overlooked two contrary observations made by Tabak and Dunbar, which state that (Tabak D and Dunbar F, “Materiality and magnitude: Event studies in the courtroom” in Weil R, Wagner M and Frank P (eds), Litigation services handbook: The role of the financial expert (3rd ed, Wiley, 2001) p 19.5):

(a)    “[t]he most common choice places the estimation window before the event”, i.e., the option that Mr Houston selected for his control period; and

(b)    a control surrounding the event is used in place of a control period preceding the event in situations where there is a lack of relevant prior trading history, such as because the event window comes shortly after an initial public offer or change in regulatory environment.

803    Although Dr Prowse concluded that the market model used in Mr Houston’s event study was not the most appropriate market model to use by Mr Houston’s own criteria, he appeared to overlook Mr Houston’s criterion that the control period be the closest period preceding the event date of 19 March 2015. As Dr Prowse’s control period surrounded the event date, as opposed to preceding it, his preferred approach in my view did not meet the criteria Mr Houston had applied and therefore Dr Prowse’s control period was inferior.

804    It is trite to observe that the purpose of using the preceding period is to avoid the possibility that the event day disclosure for the stock of interest may have itself affected the relationship that is to be estimated by the market model. It would not be uncommon for the underlying relationship between, in this instance, Myer’s share price and the market and industry indices to have changed in light of the information released on 19 March 2015, and subsequent uncertainty arising in relation to Myer’s ability to fulfil its continuous disclosure obligations. It is conventional practice to avoid the risk that the relationship being estimated in an event study may have been contaminated by the event itself or later effects of the event. Any such contamination would thereby give rise to unreliable estimates of the abnormal return that, as a matter of confident inference, can be attributed to the relevant disclosure or other event.

805    Mr Houston’s estimation window is placed immediately prior to the event window, consistently with the literature. In a later version of their 1999 NERA paper (Tabak D and Dunbar F, “Materiality and Magnitude: Event Studies in the Courtroom” (NERA Economic Consulting Working Paper No 34, 1999)), Tabak and Dunbar state at 19.5 that “[t]he most common choice places the estimation window before the event” (Tabak and Dunbar (2001)). At footnote 23, Tabak and Dunbar (2001) explain that the “concern about a ‘clean’ period actually relates to the possibility that the estimation of the relation between the stock and the index is contaminated by the effects of the event being studied. That is, one does not want any overlap between the estimation window and the event window”. Mr Houston’s estimation window does not overlap with the event window, and according to Tabak and Dunbar there is no theoretical concern which arises on the basis of the estimation window including a period of alleged inflation.

806    The academic literature concurs with the view of Tabak and Dunbar (2001) that the common placement of the estimation window is before the event. Professor MacKinlay states that “[t]he most common choice, when feasible, is using the period prior to the event window for the estimation window” (MacKinlay AC, “Event Studies in Economics and Finance” (1997) 35(1) JEL 13-39 at 15). Professors Bhagat and Romano state that “[r]esearchers usually estimate these statistical models by using between 100 and 200 daily returns in the period preceding the announcement period” (Bhagat S and Romano R, “Event Studies and the Law: Part I: Technique and Corporate Litigation” (2002) 4(1) Am L & Econ Rev 141-167 at 146).

807    Dr Prowse’s estimation window surrounds the event window (i.e., it is on either side of 19 March 2015). The applicant raises no concern in respect of the period prior to 19 March 2015, however, the inclusion of the period after 19 March 2015 is contrary to usual practice.

808    Dr Prowse relies upon his application of a Chow test to determine that there was no “structural break” between the two periods.

809    When a Chow test is performed “the null hypothesis allows for no differences at all between the groups” (Wooldridge JM, Introductory Econometrics: A Modern Approach (5th ed, South-Western Cengage Learning, 2013), 247). Assuming that the test performed is as to whether the null hypothesis should be rejected, and in circumstances in which no detail of the test performed by Dr Prowse has been disclosed in Dr Prowse’s report, the only conclusion which the Court may draw from this is that the null hypothesis should not be rejected, not that the null hypothesis is corrected. This is consistent with Dr Prowse’s evidence that the Chow test “indicated no evidence” that there was a structural change, which the applicant submits should be inferred to mean that the null hypothesis was not rejected. Assuming that is the case, Dr Prowse’s opinion that “while that might be a theoretical concern, it’s not the case in this matter” should not be understood as excluding the possibility of the relationship being affected by either the corrective disclosure on 19 March 2015 in conjunction with the 2 March 2015 advice that Myer assessed its disclosure obligations by reference to the Bloomberg consensus.

810    Mr McClintock’s evidence in relation to the 2 March 2015 analyst call is that:

MR O’BRYAN: Do you agree with the proposition that what you said to the … analysts on 2 March 2015 was the first time Myer, speaking through its chairman – you – said to the analysts, “You should understand that the Bloomberg consensus is the best proxy for Myer’s own view of its likely financial forecast”?--- Yes. I agree with that.

811    The advice given to analysts on that day did not cause (unsurprisingly) any material change in analysts’ forecasts for FY15 earnings, although there was a A$0.20 or approximately 11% decline in Myer’s share price on the day. This seems to gainsay the proposition put by counsel for Myer that “[s]o what these events, effectively, tell you is that in order for consensus to move down – and on your analysis, for there to be a corresponding decline in the share price – you need an announcement of NPAT of less than consensus. It is important to note that Mr Houston agreed with the proposition as “[g]enerally speaking” being correct. However, it is important to note that Mr Houston uses change in consensus only as a proxy for assessing the market’s understanding of earnings, and does not suggest that it is a causative relationship. That does not mean that there is no disconnect between the analysts’ consensus view and the value attributed to Myer by other market participants. Where Myer has acted to confirm the analysts’ views, as it did on 2 March 2015, the effect may nonetheless be to give new and important information to the market as a whole.

812    Nonetheless, 17 days later on 19 March 2015, Myer surprised the market by announcing an expectation of materially lower earnings than either FY14 or the then Bloomberg consensus figure for FY15.

813    Given Dr Prowse’s evidence that this event “may have reduced confidence of some of the analysts” and the manner in which the Chow test operates, in conjunction with Mr Houston’s evidence that when “my objection to taking the period after – when you cannot see a – you cannot see a structural break either before or after - is that the economic principle is that that announcement could have and, on evidence of what analysts were saying, did change the way the analysts were thinking about the Myer stock”, there should be a clear preference for an estimation window prior to the event window.

814    In my view and for the foregoing reasons, Mr Houston’s control period is to be preferred.

815    Let me turn to another debate between the experts concerning the indices.

Industry Index

816    Mr Houston’s model included as an industry index the S&P /ASX 200 Consumer Discretionary Index. But although Mr Houston compared results from the use of three different market indices, he only presented results using a single industry index. But according to Dr Prowse, the industry index used was conceptually not the best suited industry index to use to explain movements in Myer’s stock price. Dr Prowse pointed out that in addition to retail companies such as Harvey Norman Holdings Ltd and JB Hi‐Fi Ltd, this index also contained:

(a)    entertainment companies; for example, the index contained as of year‐end 2014 Ardent Leisure Group, which was a trust holding a portfolio of theme parks, bowling centres, and health clubs as well as a portfolio of family entertainment assets in the United States, and Crown Resorts Ltd., which operated and managed gaming and entertainment facilities, bars, restaurants, nightclubs, cinemas, and retail outlets;

(b)    gaming technology companies; for example, the index contained as of year‐end 2014 Ainsworth Game Technology Ltd., which developed and manufactured gaming machines and games combination software and other related equipment for the gaming industry in Australia, and Aristocrat Leisure Ltd., which manufactured and sold gaming machines in Australia and internationally;

(c)    educational service companies; for example, the index contained as of year‐end 2014 G8 Education Ltd., which provided community-focused child care, and Navitas Ltd., which offered educational services;

(d)    media companies; for example, the index contained as of year‐end 2014 Fairfax Media Ltd., which published and printed newspapers, magazines and entertainment publications, and HT&E Ltd, which operated as a media and entertainment company and owned and managed radio, outdoor, and digital assets; and

(e)    restaurants; for example, the index contained as of year‐end 2014 Domino’s Pizza Enterprises Ltd, which was a franchise license owner of the Domino’s Pizza.

817    In fact, of the 38 companies included in the index as of year‐end 2014, seven companies were classified as “Casinos & Gaming” companies, another seven companies were classified as “Publishing & Broadcasting” companies, and only six, including Myer, were classified as any type of “store” or “retailer”.

818    According to Dr Prowse, including these types of companies in an industry index meant to explain movements in a retail company’s stock price was problematic because many of the companies in Mr Houston’s industry index were not comparable to Myer. As stated by Ferrell and Saha (2007) in their discussion of how to construct an appropriate market model and the choice of an industry index: “[i]n selecting an appropriate industry index, it is important to pay particular attention to which firms are truly ‘comparable’ in terms of their line of business and hence should be included in the industry index”; see Ferrell A and Saha A, “The Loss Causation Requirement for Rule 10b‐5 Causes‐of‐Action: The Implication of Dura Pharmaceuticals v. Broudo” (2007) 63 The Business Lawyer 163-186, p 167. The authors go on to state that the selection of particular comparable companies can come from the firm’s own financial filings, equity analyst reports, or from companies in the same broad industry index.

819    Further, according to Dr Prowse, another conceptual problem with Mr Houston’s industry index (the S&P/ASX 200 Consumer Discretionary Index) was that it included Myer itself in the index. But using an index containing Myer to explain changes in Myer’s stock price is conceptually incorrect in constructing a market model. But it must be said that to the extent that movements in Myer’s stock price have a small influence on movements in the S&P/ASX 200 Consumer Discretionary Index, the practical effect of this conceptual error may not have been significant.

820    To address these conceptual problems and to better proxy the retail industry in which Myer competed, Dr Prowse constructed a custom industry index made up of the equally‐weighted returns of six retail companies that Myer itself identified as competitors in its own internal analyses. The six companies were Premier Investments Ltd., JB Hi‐Fi Ltd., Wesfarmers Ltd., Super Retail Group Ltd., Harvey Norman Holdings Ltd., and Woolworths Ltd. This list of companies was obtained from a Myer Investor Relations Report dated 18 March 2015. Using Dr Prowse’s customised industry index instead of Mr Houston’s industry index, and holding all else constant, increased the explanatory power of the market model from an adjusted R‐squared of 0.28 to 0.32.

821    There are further aspects of the evidence of Dr Prowse that explain why, in his opinion, the companies he has selected in his custom index are conceptually appropriate, and more conceptually appropriate than Mr Houston’s use of the S&P/ASX 200 Consumer Discretionary Index, and selected consistently with the criteria identified in relevant literature.

822    First, Mr Houston’s industry index included a lot of companies that have little conceptual basis in explaining a retailing company’s movements in its stock price. This includes, for example, entertainment companies, gaming technology companies, educational service companies, media companies and restaurants. There is, therefore, a significant question as to the conceptual underpinning of Mr Houston’s industry index as a whole.

823    Second, as Dr Prowse noted, “from a conceptual or theoretical basis, a variety of different indices you could use, both from market index or the industry index”. The important point then is to identify possible indices with some relevant conceptual underpinning, and to then test them from an empirical standpoint to see which has the greatest explanatory power.

824    Third, Dr Prowse considered not only conceptual issues, but then sought to test all aspects of potential models empirically. In contrast, it was evident that Mr Houston did not seek to test empirically all relevant possible industry indices. So, for example, when Mr Houston was asked whether he could have selected just a set of retail companies from the S&P/ASX Consumer Discretionary Index, Mr Houston conceded that “I could have done that”, but then made it clear that he had not done so:

HIS HONOUR: Your industry index selection, though, includes non-retailing companies. Is that right?

MR HOUSTON: Yes. But the – the composite – the purpose – it does. It includes a wide range of things.

HIS HONOUR: Yes. So I thought one of the questions that Dr Prowse might have had is that you could have selected just a set that had retail companies or a lot more than just a sample selection.

MR HOUSTON: No, I could have done that, but you still – I could have done that, but I don’t accept the proposition that just because a company is a retailer that it necessarily is going to be a good – from an a priori point of view is going to be a good predictor of the stock of a – a consumer discretionary retailer, to put it – put it – and to my mind there’s no reason to expect while someone that is retailer of food would be – behave and have – in the same way as a retailer of clothing and more discretionary items or – you could take a retailer of cars or a retailer of any other thing that – so the retailing label, in my view, is a – a little bit of a red herring as to the economic properties of the stock that you are trying to explain.

And so for that reason I wouldn’t – if I had gone to choose a bespoke index I would not have even gone down the retailing route. I would have taken a much – perhaps a more refined view of consumer discretionary which is clearly the investor class that Myer places itself. But if you’re going to contemplate that process, why wouldn’t you stick with the, you know, standard recognised investor focus consumer discretionary benchmark index that is out there.

825    That is, Mr Houston worked only on a theoretical basis and did not undertake the same empirical testing as Dr Prowse did.

826    Dr Prowse considered whether there was a conceptual basis for including Woolworths and Wesfarmers (and the other selected companies) in his custom index. Well-known literature in this area identifies that “the selection of firms to be used as industry comparables can include the firm’s own financial filings (10-K, 10-Q); equity analysts’ reports, and the constituents of widely-used industry indexes such as the Dow Jones Internet Index or the S&P Telecom Index” (Ferrell and Saha (2007) p 6). Similarly, Tabak and Dunbar F (1999) at p 5 refer to a good index as being “a standard index (say one developed by Standard & Poor’s), one that was constructed based on comparable companies listed in analyst reports or public filings, or one based on selecting all companies that meet certain objective criteria (e.g., market capitalization within 10% of the pre-event market capitalization of the company being studied)”. They further note that “an index is suspect when the choice of companies in the index is made by the expert without recourse to objective criteria”.

827    Consistently with this literature, Dr Prowse sought to identify companies identified by Myer in its own materials as “industry comparables”. This review identified that Myer, in its internal documents, identified both Woolworths and Wesfarmers as comparables (or peers) to which Myer had regard. In addition to the references included by Dr Prowse in his report, it can be noted that other Myer documents (both internal and external) referred to Woolworths and Wesfarmers (and the other companies included in Dr Prowse’s custom index) as peers or comparables to Myer. For example, in its FY13 Annual Report, Myer included both Woolworths and Wesfarmers as part of its “peer group”, and explained that in selecting that peer group:

the Board sought independent advice. The composition of the group reflects measures of relative sales and market capitalisation as well as industry type that is complementary in nature to the Company’s business. It includes companies that are consumer facing, have a service orientation and/or are retail in nature with either product or services provided as part of their core offer.

828    Further, there were analyst reports that included Woolworths and Wesfarmers as “peers” to Myer. CLSA included a similar “peer/customer matrix” in various other reports in evidence. The analyst reports in evidence demonstrate that a number of other analysts also identified or grouped Wesfarmers and Woolworths (and the other companies in Dr Prowse’s custom index) together with Myer in their reports. For example:

(a)    Morgan Stanley’s reports identified “Australian Consumer” as an industry that it covered, and the companies that it listed as part of this group included Myer, Wesfarmers and Woolworths (as well as JB Hi Fi, Premier Investments, Super Retail Group and Harvey Norman, being the other four companies in Dr Prowse’s custom index).

(b)    Bank of America Merrill Lynch listed in its reports what it referred to as “Australia – Consumer Coverage Cluster”. This list consisted of 14 companies, which included Myer, Wesfarmers and Woolworths (as well as JB Hi Fi, Premier Investments, Super Retail Group and Harvey Norman).

(c)    CIMB, in analysing Bloomberg consensus earnings forecasts for the retail sector compared to its revised FY15 NPAT forecast, included an analysis of six companies, which included Myer, Woolworths, Wesfarmers, Harvey Norman and JB Hi-Fi.

(d)    Citi, in a report of 5 January 2015, dealing with Australian retail spending during Christmas, addressed 11 companies, which included Myer, Woolworths, Wesfarmers (as well as Super Retail, JB Hi-Fi, Harvey Norman and Premier Investments).

(e)    JP Morgan prepared a report on the “retail sector” in which it grouped together and dealt with eight companies, which included Myer, Woolworths, Wesfarmers, Super Retail, JB Hi-Fi and Harvey Norman.

(f)    Credit Suisse in reports on “Australian retail” and the “Australian retail sector” grouped together and dealt with companies, which included Myer, Woolworths, Wesfarmers, Super Retail, JB Hi-Fi and Harvey Norman.

829    Finally, as a check to the conceptual underpinnings of his approach, Dr Prowse had regard to the fact that the applicant’s own expert witness, Mr Molony, identified both Woolworths and Wesfarmers as relevant comparator retail business to Myer. Mr Molony noted that they were comparator companies “[f]rom an equity market perspective”; that is, from the perspective of investors in the companies. Mr Houston’s evidence was that what is important was to select companies that are similar from an investor perspective. Mr Molony’s evidence confirms that in fact this includes the companies selected by Dr Prowse.

830    When cross-examined about the inclusion of Woolworths in his custom index, Dr Prowse disagreed with the proposition that it was inappropriate to include Woolworths in a custom index, stating:

DR PROWSE: No. I would disagree with that for the reason that, I mean, there are elements of Woolworths that are not retail, like Myer, but Myer itself considered Woolworths as a peer in its analysis. It looked at its operations and considered it comparable or at least parts of it comparable to Myer. And so I think there’s a theoretical or conceptual basis for considering including Woolworths in an industry index and then the question is does adding Woolworths to your industry index or to my industry index improve the explanatory power of the overall regression and it does.

831    And, as is evident from an examination of the share price graphs showing the performance of both Myer and Woolworths (to which Dr Prowse was taken during cross-examination), of the various companies that Myer considered to be its “peers”, it was perhaps Woolworths with which its share price movements had the closest correlation (especially in the six months prior to March 2015).

832    As to Wesfarmers, Dr Prowse gave similar evidence:

MR O’BRYAN: …And would you agree that if you’ve got a company, only 11 per cent of which is – or the EBIT contribution to which – is in directly comparable activity to Myer, that the company as a whole is not a particularly good fit in a market industry – sorry, in an industry model?

DR PROWSE: I would not say it that way, no. I would say there is a reason to consider including Wesfarmers in an industry index because it has divisions that directly compete with Myer, and also Myer considered Wesfarmers – these pieces Wesfarmers – to be comparable to Myer. And so the – so there’s a theoretical basis for considering them, a conceptual basis. And then the issue is does adding Wesfarmers to a industry index improve the performance of the overall market model versus not having Wesfarmers in there and including Wesfarmers does improve the overall performance of the index?

833    Importantly, Dr Prowse then confirmed that he had tested a custom index both with and without Woolworths and Wesfarmers:

MR O’BRYAN: … Did you test the R-squared if you removed Woolworths and/or Wesfarmers from your industry index?

DR PROWSE: I have done that analysis to see what happens if you take those two out, and if you take those two out the explanatory power of my market model declines. In other words, if you put them in the explanatory power of my market model increases.

834    What this evidence demonstrates is that Dr Prowse carefully considered conceptual or theoretical bases for including companies in his index, and then undertook the important step of empirically testing whether including them in the index increased its explanatory power.

835    No “problem” with the inclusion of Woolworths or Wesfarmers was identified.

836    But Dr Prowse’s bespoke industry index is not comparable.

837    Dr Prowse created an equally weighted index of six companies. Dr Prowse’s stated justification for the creation of that index is:

To address these conceptual problems and to better proxy the retail industry in which Myer competes, I have constructed a custom industry index made up of the equally‐weighted returns of six retail companies that Myer itself identified as competitors in its own internal analyses. The six companies are Premier Investments Ltd., JB Hi‐Fi Ltd., Wesfarmers Ltd., Super Retail Group Ltd., Harvey Norman Holdings Ltd., and Woolworths Ltd. Using my customized industry index instead of Mr. Houston’s industry index, holding all else constant, increases the explanatory power of the market model from an adjusted R‐squared of 0.28 to 0.32.

838    Dr Prowse’s industry index cannot be characterised as an appropriate index for the following reasons:

(a)    the competitors were not identified on any objective grounds. Drawn from a Myer internal report (not an external filing), Dr Prowse’s industry index took only a subset of Myer’s identified “peers”. No justification for selecting that subset has been given;

(b)    Myer only regarded Woolworths and Wesfarmers (two of the six competitors included in the constructed index) as competitors in respect of particular, relatively small, parts of their respective businesses (part of Big W in the case of Woolworths; parts of Target and Kmart in the case of Wesfarmers). The reliance on the Myer internal report is therefore apt to mislead;

(c)    on the basis of analysis of EBIT contribution, through the inclusion of Woolworths and Wesfarmers in the constructed index close to 30% of the movement in the constructed index would be explained by those two companies’ conduct of businesses which were affected by different economic factors to Myer. Given that Ferrell and Saha (2007) focus upon comparability in terms of lines of business and Tabak and Dunbar (1999) prefer the inclusion of comparable companies, the inclusion of both Woolworths and Wesfarmers as whole entities are unlikely inclusions in a properly constructed index.

839    The applicant submits that Dr Prowse’s constructed index should be treated as a “suspect” index in that it has not been constructed on objective grounds and it does not include companies with comparable businesses affected by similar economic factors.

840    Let me elaborate.

841    The six companies selected by Dr Prowse were obtained from a Myer Investor Relations Report dated 18 March 2015.

842    The Investor Relations report shows a “Share price graph vs. peers” which shows the share price performance of Myer, Premier Investments, JB Hi-Fi, Wesfarmers, Super Retail, Harvey Norman, and Woolworths and the performance of the ASX 200 index.

843    Elsewhere in the Investor Relations report other listed companies (Pacific Brands, Billabong, and Kathmandu) were said to be Myer’s peers.

844    Dr Prowse did not seek to explain his rationale for not including those other companies which Myer regarded as its peers in his constructed index.

845    Further, Mr Brookes’ evidence addressed the extent to which Wesfarmers and Woolworths might be regarded as Myer’s competitors.

846    Mr Brookes’ evidence was to the effect that Wesfarmers was treated as a competitor, but that Myer only competed with Wesfarmers in respect of particular merchandise lines, e.g., entry price point fashion. So, Myer considered that “in the true sense, [Wesfarmers is] not a competitor, but the answer is “yes”. K-mart – about 20 per cent of our range in fashion and homewares would directly compete with K-mart” and “nearly as much as that again would be competing with Target”. Myer only considered that it competed in respect of particular categories of general merchandise, not with Kmart and Target as a whole.

847    Mr Brookes’ evidence in respect of Big W and Woolworths was to similar effect:

MR O’BRYAN: Sure. And the final one is Big W, down that page. Again, you regarded Big W within the Woolworths group as your direct competitor. You did not regard, for example, the ordinary Woolworths supermarkets business as your direct competitor?---We did look at – at that stage, I can’t recall whether Dick Smith was still part of the Big W business – sorry, part of the Woolworths business, but we competed as a major competitor against them in electronics prior to them getting into financial trouble. Similarly, we would have in things like copy paper and basic price points, we would be looking at Big W, and the supermarkets carry about – all the supermarkets have about six to eight per cent of their turnover in general merchandise, so we would keep an eye on entry price point tops, jeans, etcetera, but they weren’t major competitors, but they were the – the supermarket certainly was another competitor set that we had to take notice of.

848    Let me say something about the contribution of consumer discretionary businesses to Woolworths and Wesfarmers’ earnings.

849    After being taken to analysis published by the Reserve Bank of Australia which discloses a significantly different relationship between the consumer sentiment indices and consumer discretionary expenditure when compared to non-discretionary expenditure, Dr Prowse was taken to Woolworths’ 2014 Annual Report which disclosed:

(a)    General Merchandise EBIT of $152.9m;

(b)    Hotels EBIT of $275.4m; and

(c)    Total Group EBIT of $3,775.2m.

850    Dr Prowse agreed that Big W (being the General Merchandise component of Woolworth’s business) was “more comparable to Myer than other elements of Woolworths’ business” and that the hotels business was likely to be a largely consumer discretionary category of business. The consumer discretionary component of Woolworths, analysed by EBIT contribution, was therefore approximately 11% at the relevant time.

851    After being taken to a similar analysis of Wesfarmers’ business at the relevant time by reference to its 2014 Annual Report, Dr Prowse gave the following evidence:

MR O’BRYAN: …Well, let’s come back to our case and the equally-weighted index that you’ve developed, Dr Prowse, because I want to put a couple of propositions to you. You’ve equally-weighted Woolworths and Wesfarmers, which are very large companies, far larger than any of the other four in your industry index. You’re aware of that, aren’t you?

DR PROWSE: Yes.

MR O’BRYAN: And both of [Woolworths and Wesfarmers] … if we include all of the consumer discretionary part of their businesses which are in a similar field of commerce to Myer, they total 11 per cent of their EBIT contributions, and therefore would you agree that 89 per cent, at least at the EBIT level, of the performance of those business is likely to be attributable to factors which are not in the consumer discretionary category? Do you agree with that?

DR PROWSE: That’s likely, yes.

MR O’BRYAN: And that would suggest, would it not, if you apply that ratio, nearly 90 percent of each of those two companies being in dissimilar fields of activity to Myer, that … nearly 15 per cent of the 16.66 per cent recurring that your index attributes to them in terms of weight … is actually non-comparable with Myer. Do you agree?

DR PROWSE: The numbers may be correct as the way you’ve stated them, but they’re not – what’s relevant is, is including Wesfarmers and Woolworths in my industry index, does that add explanatory power to the industry index and to the market model, and it does.

MR O’BRYAN: Measured by R-squared.

DR PROWSE: Measured by R-squared and measured by the statistical significance of the industry index.

852    The applicant does not criticise the equal weighting of the constructed index, as the market capitalisation of Woolworths and Wesfarmers (each non-comparable to Myer) were far greater than the other four included companies.

853    However, the non-comparability of Woolworths and Wesfarmers and their outsized market capitalisation suggests that Dr Prowse took an unusual step in equally-weighting his index to avoid criticism of an otherwise suspect index.

854    Dr Prowse could cite only two papers in which equally-weighted indices had been employed. Neither paper analysed the desirability of employing an equally-weighted index or recommended the use of an equally-weighted index.

855    Using the Tabak and Dunbar (1999) examples of a “good index”, it may be inferred that the standard index to be used would necessarily be value-weighted and it may be assumed that a constructed index of comparable companies would also be equally weighted. Common sense suggests that only an index of peers constructed on an objective basis of market capitalisations within 10% of the subject company’s may not need to be value-weighted. Indeed, this may be why the Eckel, Eckel and Singal study concerning the airline industry was sensibly conducted on an equal-weighted basis (Eckel C, Eckel D and Singal V, “Privatization and efficiency: Industry effects of the sales of British Airways” (1997) 43(2) J Financ Econ 275-298).

856    Finally, let me say something about Mr Houston’s application of the Consumer Discretionary Index.

857    The economic evidence published by the Reserve Bank of Australia, and Dr Prowse’s own recognition of the relationship between the consumer sentiment indices and discretionary consumption, supports the proposition that Myer could be expected to be affected by the same economic factors as other companies in the S&P/ASX 200 Consumer Discretionary Index.

858    The S&P/ASX 200 Consumer Discretionary Index is, by definition, a “good index” to be used as the industry index on the bases stated by Tabak and Dunbar (1999). It is a standard index.

859    Whilst the use of the standard index means that the market index plays a significantly greater role in Mr Houston’s regression than it does in Dr Prowse’s, Mr Houston’s analysis should be preferred as being properly constructed.

860    Further, Dr Prowse contended that the industry index included in Mr Houston’s market model, the S&P/ASX 200 Consumer Discretionary Index, was not the best suited industry index to use to explain movements in Myer’s stock price because it included companies that were not in the retailing industry and so were not comparable to Myer. Dr Prowse referred to Ferrell and Saha (2007) at p 167 who stated:

[i]n selecting an appropriate industry index, it is important to pay particular attention to which firms are truly “comparable” in terms of their line of business and hence should be included in the industry index.

861    But I note that Ferrell and Saha (2007) went on to say that:

[t]he information source for the selection of firms to be used as industry comparables can include the firm’s own financial filings (10-K, 10-Q); equity analysts’ reports, and the constituents of widely-used industry indexes, such as the Dow Jones Internet Index or the S&P Telecom Index.

862    The S&P/ASX 200 Consumer Discretionary Index is one of a set of S&P/ASX Australian indices that are closely aligned with S&P Dow Jones Indices global suite of indices, and are recognised internationally as Australia’s principal investable equity indices. As a widely used industry index, the S&P/ASX 200 Consumer Discretionary Index would seem to meet the criteria described by Ferrell and Saha.

863    Further, although the S&P/ASX 200 Consumer Discretionary Index included companies that were not retailers, the unifying principle for companies that were included in the S&P/ASX 200 Consumer Discretionary Index was their classification as members of the global industry classification standard (GICS) consumer discretionary sector and sub-industries. These companies were in industries that tended to be the most sensitive to economic cycles.

864    Mr Houston’s choice of indices reflected the desirable property that a market model account for the likely effect on stock prices of both economy-wide information through a market-wide index, and industry-wide information through an industry index. The inclusion of an industry index in a market model accounts for changes that affect a particular type of industry but are not necessarily felt across all of the entities of different industries listed on the stock exchange.

865    The S&P/ASX 200 Consumer Discretionary Index is made up of listed companies in industries that are more sensitive to changes in economic conditions than the S&P/ASX 200. Further, it is of lesser relevance that other companies in the index provide the same products as Myer. It is more relevant that they respond in a similar way to changes in external factors. This is consistent with the principles cited in relation to the selection of indices for a market model in Crew NI, Goshtigian PG, Moore MA and Sarin A, “Securities Act violations: Estimation of damages”, in Weil R, Wagner M and Frank P (eds), Litigation services handbook: The role of the financial expert (3rd ed, Wiley, 2001) p 17.11, which refer to:

…the effects of industry-wide information, such as technological innovations, changes in the demand, the level of competition within in the industry, and regulatory announcements…

866    According to Mr Houston the S&P/ASX 200 Consumer Discretionary Index is the most suitable independent variable for the purpose of explaining industry-wide price effects on Myer’s stock.

867    And contrastingly, Dr Prowse’s bespoke industry index included Woolworths and Wesfarmers, whose main business division was food retailing. Accordingly, these two firms were part of the GICS sector “Consumer Staples”, which was obviously less sensitive to economic cycles than “Consumer Discretionary”.

868    Dr Prowse cited another conceptual problem with Mr Houston’s choice of the S&P/ASX 200 Consumer Discretionary Index as being that the index included Myer itself. In his view, using an index containing Myer to explain changes in Myer’s stock price is conceptually incorrect in constructing a market model.

869    But Dr Prowse did acknowledge that:

However, to the extent that movements in Myer’s stock price have a small influence on movements in the S&P/ASX 200 Consumer Discretionary Index, the practical effect of this conceptual error may not be significant.

870    Now in contrast to the bespoke index developed by Dr Prowse, the S&P/ASX 200 Consumer Discretionary Index is a capitalisation index, where the index weight assigned to each company is proportional to that company’s capitalisation, with larger companies being assigned a greater weighting and therefore having a greater impact on index values. Price movements in companies with relatively low capitalisation when compared with others that make up the index therefore had only a negligible effect on the index value.

871    Since day-by-day index weights were not readily available to him, Mr Houston estimated the weighting of Myer in the S&P/ASX 200 Consumer Discretionary Index at the beginning and end of the control period over which he estimated his market model, i.e., 19 March 2014 and 18 March 2015. He formed his estimate by taking the list of index constituents at a given point in time and the market capitalisation of each company drawn from Bloomberg L.P. He estimated the weighting of Myer by dividing its market capitalisation by the sum of market capitalisation of all index members. This gave rise to an estimated weighting of 0.9 per cent at 19 March 2014, and a weighting of 1.0 per cent at 18 March 2015.

872    These estimated weights confirm that the daily returns on Myer’s stock represented a small fraction of the returns of the S&P/ASX 200 Consumer Discretionary Index. Accordingly, Dr Prowse’s concern has no practical relevance for the choice of industry index in seeking to explain changes in the price of Myer’s stock.

873    But there were problems with Dr Prowse’s industry index. Dr Prowse developed his own industry index from a set of six companies, comprising the equally weighted daily returns of Premier Investments Ltd, JB Hi-Fi Ltd, Wesfarmers Ltd, Super Retail Group Ltd, Harvey Norman Holdings Ltd, and Woolworths Ltd. Dr Prowse stated that he obtained this list of companies from those that Myer itself identified as competitors.

874    Dr Prowse constructed his index so that the daily returns of his six preferred companies were weighted equally, rather than according to their size. Dr Prowse did not explain why he chose to weight his six preferred companies equally.

875    Mr Houston was not aware of any relevant literature or principle in relation to the performing of an event study that would suggest it was appropriate to construct an index of industry returns that accorded each of its constituent companies equal weight, regardless of their size. In seeking to explain price movements in Myer by reference to those of comparable companies, according to Mr Houston it did not make sense to apply the same weight to each observed price movement, irrespective of the commercial significance of that company within the comparator set.

876    By way of illustration, Dr Prowse’s bespoke index gave equal weight to the daily returns of specialty retailer Super Retail Group as it did to the conglomerate Wesfarmers. In the financial year ended 30 June 2015, which covered the majority of Dr Prowse’s control period, Wesfarmers reported NPAT 23 times higher than Super Retail Group, whilst its market capitalisation was also 24 times greater than Super Retail Group. The reported NPAT for FY15, reported as “Net Income, Adj+” on Bloomberg for Wesfarmers was $2.426 billion and for Super Retail Group was $105.46 million. Further, even if the composition of Dr Prowse’s bespoke index had merit, there was no economic or financial principle that justified the equal weighting of entities of such diverse scale.

877    In contrast, all of S&P’s ASX indices, including the ASX100 and ASX All Ordinaries, were prepared on a capitalisation weighted basis, i.e., the constituent companies were each weighted according to their relative financial size as measured by their market capitalisation.

878    Now Dr Prowse dealt with the criticism to some extent as follows:

DR PROWSE: …Mr Houston’s criticism is that I’m using an equally weighted index and I should have used a market cap weighted index. Mr Houston says in his responsive report that he’s not aware of any literature or any principle that would suggest using an equally weighted index. In fact, there are – there’s a vast body of academic and practitioner literature which uses equally weighted indexes in event studies.

HIS HONOUR: What’s the basis for doing that? I mean, intuitively it doesn’t seem that attractive.

DR PROWSE: The basis for doing it is actually explained in one of the papers, and that – that is in the – in the book that has been given, is that based on empirical analysis, it has been found that the equally weighted index is more likely and more precisely to identify abnormal returns. Again, this is an empirical matter. There’s no – I don’t believe there’s any golden rule that you have to use a market cap index, you have to use a weighted index or an equally weighted index. The issue is – they both have some justification – what is – which index explains better movements in the company’s stock price and more precisely estimates abnormal returns. And the general finding in the – in the economic and academic literature is that equally weighted indexes do a better job of detecting abnormal security returns.

HIS HONOUR: Is that a function of the choice – I mean, if you’ve just got six firms and you’ve got one with two orders of magnitude higher market capitalisation than one of the others as compared with a situation where you’ve got 100 companies that’s an equally weighted index but they’re roughly the top 100 firms, does that make any difference in the choice of whether you should do a weighted average or just an equally weighted?

DR PROWSE: Well, again, I think the issue comes down to what explains better Myer’s stock price movements. And Mr Houston says it’s computationally difficult to compute market cap industry indexes. It’s actually not that hard. I’ve done it. I’ve compared my industry index market cap weighted to my industry index equally weighted, and the equally weighted index explains Myer’s stock price better than the market cap weighted index does. And so I think even in this particular case, there’s – there’s much more reason to use my index in equally weighted form than it is in market cap form. So I believe those were the – and so I – and so my question on the equally weighted issue would be is Mr Houston aware of the vast amount of academic and practitioner literature out there that use equally weighted indexes in event studies.

HIS HONOUR: Well - - -

DR PROWSE: And there’s – there’s a number of those papers in the book that has been handed to you. There’s a paper by Brown and Warner, there’s a paper by Peterson, there’s a paper by Eckel that all use and talk about using equally weighted indexes in – in event study analyses.

879    Dr Prowse’s evidence was that for his custom industry index, he tested both an equally-weighted index and a market capitalisation weighted index, and the equally-weighted index explained Myer’s stock price better than the market capitalisation weighted index.

880    Further, according to Dr Prowse, there were some academic articles which used an equally-weighted index, and therefore suggested that it was appropriate to do so.

881    The first article was an event study article by Brown and Warner (Brown S and Warner J, “Using Daily Stock Returns: The Case of Event Studies” (1985) 14(1) J Financ Econ 3-31). In this paper Brown and Warner examined properties of daily stock price returns and how the particular characteristics of these data affected event study methodologies. The index they used in conducting their analysis was the Centre for Research on Securities Price (CRSP) equally-weighted index, which was an equally-weighted index constructed at the University of Chicago for the purposes of stock price research. It can be noted that this paper by Brown and Warner is referred to in other articles which were tendered by the applicant. For example, the article by Professor MacKinlay (MacKinlay (1997)) referred to the Brown and Warner paper as part of the discussion key papers in the event studies literature, and on four other occasions in his article. The article by Sanjai Bhagat and Roberta Romano also referred to the Brown and Warner article in footnote 1 as part of the general discussion of event studies, as well as on three other occasions (Bhagat and Romano (2002) at 146, 147 and 148).

882    The second paper referred to was by Eckel, Eckel and Singal, and which provided another example where an equally-weighted index was used in an event study (Eckel, Eckel and Singal (1997)).

883    The third paper was by Peterson. In a survey of the “present state of knowledge and practice with respect to event study methodology”, Petersen noted that (at 50): “As described by Brown and Warner, asset pricing suggests the use of a value-weighted index as a market index. The equally-weighted index, however, is more likely to detect abnormal security returns” (Peterson P, “Event Studies: A review of Issues and Methodology” (1989) 28(3) Q J Bus ECON 36-66).

884    Further, Dr Prowse gave evidence that the use of an equally-weighted index served to reduce any risks that the index would be “skewed” or “highly weighted” by including two very large companies (Woolworths and Wesfarmers). So, the following exchange occurred:

MR O’BRYAN: …And as you’re probably aware, or you may be aware, Wesfarmers and Woolworths were then two of the biggest companies listed on the Australian Stock Exchange. They’re in the top 20. And would you agree that your index is very highly weighted to these very large enterprises and there is a risk that your index will not eliminate stock-specific factors with such weightings in it?

DR PROWSE: Well, no. There – my index is equally weighted. So it doesn’t give any more weight to Woolworths or Wesfarmers because they have higher market cap. My index is equally weighted.

885    But having said all of this, I am not convinced that Mr Houston does not have a point.

886    Finally, once Dr Prowse’s bespoke industry index was introduced into his estimated model, the market index variable in his model was not statistically significant. In Dr Prowse’s preferred “FTI Model with control period (19/9/14 – 18/9/15) and Custom Industry Index”, the custom industry index was significant at the one per cent level, whilst the market index was not statistically significant. Mr Houston noted that Dr Prowse reported the statistical significance of his industry index as meeting the 10 per cent level. But Mr Houston’s replication of his model suggested that it was statistically significant at the one per cent level.

887    The consequence of these statistical properties was that Dr Prowse’s model derived most of its explanatory power from his custom index. But this was a variable that, as Mr Houston explained, could not be relied upon as being free from bias. In contrast, both indices in Mr Houston’s own model were statistically significant, with the market index being significant at the five per cent level, and the industry index being significant at the lower, 10 per cent level.

888    In Mr Houston’s model:

(a)    his market index was statistically significant at the 5 per cent level (i.e. p<0.05);

(b)    his industry index was statistically significant at the 10 per cent level (i.e. p<0.1).

889    The result of this is that it would appear that in Mr Houston’s model the market index is doing the bulk of the work in explaining the movements in Myer stock.

890    In Dr Prowse’s model:

(a)    his market index was not statistically significant at the 10 per cent level;

(b)    his industry index was statistically significant at the 1 per cent level (i.e. p<0.01).

891    In Dr Prowse’s report it was incorrectly stated that his industry index was only statistically significant at the 10 per cent level. However, Dr Prowse’s clarified in his oral evidence that it was statistically significant at the 1 per cent level. Mr Houston also confirmed that in fact Dr Prowse’s industry index was statistically significant at the 1 per cent level.

892    It can be noted from Mr Houston’s evidence that for the three combinations of market and industry indices that Mr Houston tested, the adjusted R-squared for each of them was different to only a very small degree:

(a)    the S&P/ASX 100 combined with the S&P/ASX 200 Consumer Discretionary Index had an adjusted R-squared of 0.275;

(b)    the S&P/ASX 200 combined with the S&P/ASX 200 Consumer Discretionary Index had an adjusted R-squared of 0.277;

(c)    the All Ordinaries combined with the S&P/ASX 200 Consumer Discretionary Index had an adjusted R-squared of 0.280.

893    Mr Houston selected the All Ordinaries index in combination with the S&P/ASX 200 Consumer Discretionary Index because it had the highest explanatory power as measured by its adjusted R-squared. It can be noted from Mr Houston’s report, that when the S&P/ASX 100 was combined with the S&P/ASX 200 Consumer Discretionary Index each index was statistically significant at the 5 per cent level. In contrast, when the All Ordinaries was combined with the S&P/ASX 200 Consumer Discretionary Index, the S&P/ASX 200 Consumer Discretionary Index was only statistically significant at the 10 per cent level. Mr Houston did not seek to suggest, despite the small difference between the adjusted R-squared, that the higher statistical significance of the S&P/ASX Consumer Discretionary Index when combined with the S&P/ASX 100 market index was a relevant consideration in determining which index to use; he relied only on the adjusted R-squared.

894    Dr Prowse sought to explain why this issue of statistical significance was irrelevant:

DR PROWSE: First of all, Mr Houston raised the issue that it so happens that in my model the market index is not statistically significant at the 10 per cent level, and that’s because my industry index is doing such a good job of explaining movements in Myer’s stock price that the market index doesn’t have much to add on top of it. It has something to add, but not to make it statistically significant. But that is not a reason to reject the industry index if the overall market model I’m using has better explanatory power in terms of the adjusted R squared than another one which allows the market index to be statistically significant and – but doesn’t have the – at a – at the aggregate level doesn’t have as good a performance in explaining Myer’s stock price movements as one where the industry index is just doing such a good job because these companies are very comparable and they’re explaining a lot of Myer’s stock price movements.

HIS HONOUR: I’ve seen the linear regression equations where if you’ve got two or more explanatory variables and they’re actually interacting with each other, you have a sort of what I will describe as a compounding factor in your equation. Is that something done in this area? I don’t think it’s something that you’ve done here, is it?

DR PROWSE: Well, there’s certainly – there is certainly likely to be some co-movement between the market index and the industry index.

HIS HONOUR: Yes.

DR PROWSE: That’s if the market goes up one day. In my industry index retail companies’ prices may likely go up the same day and vice versa and the same with Mr Houston’s model. So there are certainly – they certainly will – will very often move together, but they’re different enough that the industry index captures a different piece of explaining Myer stock price movement than the market index does. And in my model the industry index is so well – explains Myer stock price so well that it doesn’t leave a whole lot for the market industry index.

But that’s not a criterion that’s used to choose between market models whether all the variables are statistically significant; that’s just not used. I disagree with Mr Houston on that point. Like I said, the – if you believe you have a properly specified regression model, what you should be – and the variables in there are variables that have a conceptual basis for being in there, then you go to how well does this model perform and explain stock price movements.

HIS HONOUR: What’s your P-value for the industry index? It’s certainly less than .05; is it even better than that? I’m just trying to - - -

DR PROWSE: Yes. I think it’s .01.

HIS HONOUR: .01. Yes. Okay.

DR PROWSE: Yes, statistically significant at the one per cent level.

895    Moreover, it was said that no literature or principle that would require both indices used to be statistically significant was identified.

896    In summary, I accept that Dr Prowse has advanced some support for his model. But on the whole, I am not satisfied that Dr Prowse’s model should be the preferred model. In substance I have accepted Mr Houston’s preferred model, at least as to its elements that I have discussed above concerning the control period and indices, notwithstanding the otherwise discrepancies in explanatory power.

(b)    The measurement of abnormal returns

897    Mr Houston used the alpha and beta estimates from his preferred market model (All Ordinaries Index and S&P/ASX 200 Consumer Discretionary Index) to estimate the movement in the price of Myer shares that would have been expected on 19 March 2015 and four subsequent days (event window), absent the release of any company-specific news.

898    He also calculated the abnormal return set out in the Table below using a number of the other market models, each of which was estimated over different control periods and/or with different market indices as the independent variable. The abnormal return did not change significantly with these variations, and was $0.18 when rounded to the nearest cent in each model.

899    He then calculated the abnormal return on each day of the event window by subtracting the expected or “predicted” price return from Myer’s actual price return.

900    Mr Houston presented his estimates of the predicted and abnormal returns for Myer shares, along with the actual returns, for each day in the event window as shown in the Table below.

Estimated abnormal returns following Myer’s 19 March 2015 announcement

Date

Myer closing price

Predicted log return

Abnormal log return

Cumulative abnormal log return

Abnormal log return t-stat

Cumulative abnormal log return t-stat

Cumulative abnormal price reaction

18/03/2015

1.53

19/03/2015

1.38

1.61

-12.29

-12.29

-6.31

-6.31

-0.18

20/03/2015

1.35

0.46

-2.66

-14.95

-1.37

-5.43

-0.21

23/03/2015

1.35

-0.35

0.72

-14.23

0.37

-4.22

-0.20

24/03/2015

1.36

0.12

0.25

-13.98

0.13

-3.59

-0.20

25/03/2015

1.42

0.08

4.25

-9.73

2.18

-2.23

-0.14

901    The abnormal movement in the price of Myer shares on 19 March 2015 is statistically significant at the five per cent level.

902    On each of the following trading days, between 20 and 25 March 2015, the abnormal return on Myer shares is not statistically significant at the five per cent level on a daily basis.

903    The statistical significance of the Myer share price movement on 19 March 2015 at the five per cent level shows that the abnormal return estimated for that day is very unlikely to have been due to random chance.

904    Mr Houston estimated the abnormal price movement following the 19 March 2015 announcement to be approximately 11.5 per cent, or $0.18.

(c)    The cause of abnormal return on Myer shares

905    Mr Houston’s analysis suggested to him that the drop in the price of Myer’s shares on 19 March 2015 could be attributed to information contained in its announcement to the ASX released that day. However, in order to draw conclusions in relation to the particular elements of Myer’s ASX announcement that caused the fall in Myer’s share price, it was necessary to establish the extent to which some or all of the information disclosed was already known by market participants. To the extent that part of the information disclosed was already known, it could not be said to be a cause of the abnormal return estimated for 19 March 2015.

906    Mr Houston was provided with 33 reports issued by 12 equity analysts that followed Myer over the period 11 September 2014 to 19 March 2015. He sourced an additional nine reports by the same group of analysts. Equity analysts’ reports provide an important service to the market, since they are one means by which new information in relation to a company can be disseminated to and interpreted by potential buyers and sellers of shares.

907    Analyst reports contain the opinions of professional and knowledgeable third parties, drawn from publicly available information and proprietary research. In Mr Houston’s opinion, in analysing the share price consequences of a particular event such as a company announcement, it is instructive to examine the commentary and valuations produced by analysts around the time of that event. Analyst reports reflect the information that was available at the time, and provide an objective measure of the contemporaneous beliefs and expectations of sophisticated participants in the market.

908    Analysts typically discuss the announcement of new, material information about a company’s future prospects and, where applicable, revise their earnings and/or valuation estimates. According to Mr Houston it follows that the particular information that was perceived at the time as having a significant impact on analysts’ valuations represents an objective basis for determining those components of an announcement that were considered to be “new”.

909    Mr Houston’s review of analyst reports suggests that prior to Myer’s 19 March 2015 announcement, market participants were not aware that:

(a)    Myer’s forecast NPAT for FY15 was in the range of $75 million to $80 million, which was below its previous guidance of anticipated profit growth from the previous year’s $98.5 million; and

(b)    Myer expected to incur a one-off cost in the order of $7 million relating to its strategic review in the second half of FY15.

910    Now Myer had been undertaking a strategic review for some time, which continued under the leadership of its new CEO, Mr Umbers. Mr Houston assumed therefore that market participants may already have had knowledge of this expenditure at least to some extent prior to 19 March 2015.

911    Mr Houston reviewed reports issued by nine analysts in relation to Myer between 19 and 20 March 2015. Of these, seven analysts noted that FY15 guidance was “below expectations” or “a shock”. In particular:

(a)    the Commonwealth Bank stated that Myer’s earnings guidance for FY15 was well below expectations;

(b)    Credit Suisse explained that the result was well below expectations;

(c)    Deutsche Bank noted that guidance was well below expectations and was a disappointment, i.e., it stated that:

The NPAT guidance is at odds with commentary from outgoing CEO Bernie Brooks [sic] given at the FY14 result, that FY15 NPAT is expected to be higher than FY14. This is a key disappointment as the mid-point of normalised NPAT guidance ($77.5m) is some 20% lower than FY14. It is also contrary to the very recent update from the Chairman who suggested he was comfortable with Bloomberg consensus expectations earlier this month;

(d)    JP Morgan stated that Myer’s earnings guidance for FY15 was weaker than expectations and consensus;

(e)    Macquarie described FY15 NPAT guidance as below consensus and expectations;

(f)    Morgan Stanley stated that, given the reaffirmation of the consensus NPAT estimate by Myer’s Chairman, the release was a shock; and

(g)    UBS noted that Myer’s earnings guidance for FY15 was well below expectations.

912    All nine analysts substantially reduced their FY15 NPAT forecasts and price targets for Myer following the announcement, as shown in the Tables below.

Revisions to analysts’ NPAT forecasts for Myer, March 2015

Date

Analyst

Previous FY15 NPAT ($ millions)

Updated FY15 NPAT ($ millions)

Percentage change

19 March 2015

Citi

85

72

-15.29%

19 March 2015

CLSA

88

76

-13.64%

19 March 2015

Commonwealth Bank

86

71

-16.61%

19 March 2015

Credit Suisse

88

79

-10.58%

19 March 2015

Deutsche Bank

87

72

-17.24%

20 March 2015

J.P. Morgan

84

71

-15.81%

19 March 2015

Macquarie

90

67

-25.14%

19 March 2015

Morgan Stanley

91

75

-17.58%

19 March 2015

UBS

91

81

-10.99%

Revisions to analysts’ 12 month price targets for Myer, March 2015

Date

Analyst

Previous 12 month price guidance

Updated 12 month price guidance

Percentage change

19 March 2015

Citi

1.60

1.25

-21.88%

19 March 2015

CLSA

1.30

0.99

-23.85%

19 March 2015

Commonwealth Bank

1.90

1.33

-30.00%

19 March 2015

Credit Suisse

1.70

1.40

-17.65%

19 March 2015

Deutsche Bank

1.60

1.10

-31.25%

20 March 2015

J.P. Morgan

1.66

1.23

-25.90%

19 March 2015

Macquarie

1.65

1.40

-15.15%

19 March 2015

Morgan Stanley

2.50

1.80

-28.00%

19 March 2015

UBS

1.50

1.33

-11.33%

913    In Mr Houston’s opinion, the comments by analysts that I have referred to above and the changes in their valuation of Myer as at 19 March 2015 or shortly thereafter suggested that market participants were unaware that Myer was expecting FY15 NPAT in the order of $75 million to $80 million.

914    Now this may be so at that point. A matter to which I will need to return later is of course the relevance of market consensus as to NPAT from time to time and how that was factored into the market price.

(d)    The value of confounding news

915    The $75 million to $80 million range of forecast NPAT outcomes presented in the 19 March 2015 corrective disclosure excluded one-off costs, but also identified that Myer expected to incur one-off costs of $7 million relating to the strategic review.

916    On the analyst call on 18 March 2015, Myer CEO, Mr Umbers, explained that:

During the half we decided to accelerate a strategic review process that had been underway for some time. The aim of this review was to reveal the formula to make Myer more relevant to its customers, more engaging in its execution and more able to adapt and capitalise on the forces of change.

917    Mr Houston pointed out that the one-off cost of $7 million had not previously been disclosed to the market and so it was necessary to take account of the likely effect of this information on Myer’s share price in Mr Houston’s estimate of the abnormal return on 19 March 2015. To distinguish its effect from that of the revised FY15 NPAT forecast of $75 million to $80 million (excluding one-off costs), Mr Houston estimated that the $7 million cost would have a one-off effect on FY15 NPAT equal to $4.9 million, calculated as $7 million multiplied by 0.7, being 1 minus the corporate tax rate of 30 per cent. And he estimated that the disclosure of this information could be expected to reduce Myer’s share price by an amount equal to $4.9 million divided by the number of shares on issue on 19 March 2015.

918    On this basis, Mr Houston estimated that the disclosure of the one-off strategic review cost of $7 million on 19 March 2015 resulted in a reduction in the Myer share price on that day equal to $0.008, calculated as $4.90 million divided by 585.69 million, being the number of Myer shares on issue on 19 March 2015.

919    I will not need to discuss that adjustment further or its quantification in the light of my views on other matters.

(e)    Interim summary

920    In Mr Houston’s opinion, the forecast range of NPAT in FY15 of $75 million to $80 million, excluding one-off costs, was neither known nor expected by the market prior to 19 March 2015. Mr Houston drew this conclusion because each of the nine equity analysts’ reports published on 19 and 20 March 2015 included revised profitability expectations for FY15, and many of them noted that Myer’s revised guidance was “well below expectations”.

921    Using the market model that Mr Houston developed that I have described above, he found that the abnormal return attributable to Myer’s disclosures on 19 March 2015 was $0.177. Of this abnormal return, he estimated that:

(a)    $0.168 was attributable to news of Myer’s revised profitability range of $75 million to $80 million for FY15, excluding one-off costs; and

(b)    $0.008 was attributable to news of the forecast one-off cost of $7 million relating to a strategic review.

922    I note that $0.168 and $0.008 do not sum to $0.177 but this is due to the effect of rounding.

923    For the remainder of this discussion the abnormal return as calculated by Mr Houston is to be taken as that resulting only from the 19 March 2015 corrective disclosure of Myer’s revised profitability guidance of FY15 NPAT in the range of $75 million to $80 million, excluding one-off costs, i.e., an abnormal return of $0.168 in dollar terms or 11.0 per cent in relative terms.

SHARE PRICE INFLATION

924    In estimating the extent of inflation in the Myer share price over the period from 11 September 2014 to 18 March 2015 (the relevant period), Mr Houston’s approach was founded on the principles of financial economics referred to above as applied to the information available to him and assumptions he was asked to make. At this point let me focus on one assumption that he was asked to make concerning the alternative disclosure that would have been made to the market on 11 September 2014.

925    I should say now that I do not accept Mr Houston’s assumption as to the counterfactual disclosure and will later address what I consider to be the correct counterfactual disclosure. As I have said elsewhere, the appropriate counterfactual disclosure should have been the following.

926    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 was not likely to 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.

927    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.

928    But in case I am wrong, it is appropriate for the moment to set out the evidence based upon the assumption that Mr Houston in fact used.

(a)    The counterfactual disclosure assumed by Mr Houston

929    The counterfactual disclosure that he was asked to make was to the effect that Myer was obliged to clarify the meaning of Myer’s CEO’s advice on 11 September 2014 by immediately disclosing to the market that:

(a)    achieving sales in the order of $3,310 million to $3,330 million, Myer expected to achieve NPAT of approximately $77 million in FY15;

(b)    on the same assumed sales volume, Myer hoped to achieve NPAT in the order of $107 million in FY15 by achieving certain cost savings and miscellaneous additional revenue including in the following categories:

(i)    fast track initiatives;

(ii)    foreign exchange gains;

(iii)    markdowns;

(iv)    store wages;

(v)    store operating expenditure (including occupancy);

(vi)    CEO / management;

(vii)    information technology;

(viii)    omni-channel / marketing;

(ix)    Sass & Bide;

(x)    buying and supply chain;

(xi)    finance;

(xii)    NSO;

(xiii)    board;

(xiv)    depreciation; and

(xv)    Myer annual incentive plan;

(c)    Myer recognised that each 1% positive or negative change in its sales for the year from budget would have a $6 million “NPAT Impact”; and

(d)    cumulative sales for the year-to-date as of 11 September 2014 were $284.4 million and approximately 5% below budgeted sales of $298.2 million.

930    First, Mr Houston estimated likely market expectations as to FY15 NPAT and ongoing earnings over the relevant period had the information contained in the counterfactual disclosure been made available to the market on 11 September 2014. He then compared these likely market expectations as to FY15 NPAT and ongoing earnings over the relevant period with the higher earnings expectations that actually prevailed, and which underpinned the Myer share price, over the same relevant period.

931    Second, he considered the extent to which the Myer share price would have been lower over the relevant period if the relatively lower market expectations as to FY15 NPAT and ongoing earnings arising from the counterfactual disclosure had been known to the market from 11 September 2014. He drew on the observed relationship between the change in market expectations and the estimated abnormal return on 19 March 2015 to estimate the change in the Myer share price on each day given the hypothesised change in market expectations following the counterfactual disclosure. The relevance of this comparative analysis drew from the very similar nature of the information presented in the counterfactual and corrective disclosures.

932    Since both disclosures affected the market’s expectations as to Myer’s future earnings and the level of risk associated with those earnings, Mr Houston concluded that the observed relationship between the relative change in NPAT expectations and the abnormal return on 19 March 2015 was the appropriate basis on which to estimate the extent of inflation in the Myer share price over the relevant period.

933    As I have already explained, the estimation of share price inflation by reference to the observed abnormal return measured in proportionate terms is known as the constant percentage approach. Mr Houston applied that approach by calculating the proportionate change in the Myer share price resulting from a one per cent reduction in market expectations as to FY15 NPAT and multiplying this ratio by the relative reduction in market expectations under the counterfactual disclosure to estimate the relative change in the share price. Finally, having applied the constant percentage approach to account for the estimated change in market expectations as to Myer’s ongoing earnings under the counterfactual disclosure, Mr Houston made a further adjustment to account for the effect on Myer’s share price of the counterfactual disclosure of one-off effects on earnings in FY15.

934    Before proceeding further, let me elaborate on other aspects of Mr Houston’s evidence relevant to his counterfactual.

935    Mr Houston was provided with only limited information on the prospective cost savings and miscellaneous revenue items identified in Myer’s internal documents and in the counterfactual disclosure as having the potential to increase its FY15 NPAT from $77 million to $107 million. He therefore established his upper bound expectation of Myer’s ongoing earnings by deducting from the top end of the FY15 NPAT range identified in the counterfactual disclosure only those items for which there was a sufficient basis to draw conclusions as to their one-off nature or other likely effect on future earnings.

936    It followed that in undertaking its assessment of ongoing earnings the market may well have excluded additional cost and revenue items listed in the counterfactual disclosure from its assessment of Myer’s ongoing earnings, whereas the inclusion of those items in Mr Houston’s analysis reflected the absence of sufficient information to draw a more reliable conclusion. He therefore considered that his upper bound estimate was reasonable (i.e., conservatively high).

937    Mr Houston noted that in the event that the counterfactual disclosure had been made, it was likely that analysts would have sought clarifying details on the nature of some of the items, say in a call with analysts, and their likelihood. Such a process may well have given rise to a clearer picture as to the implications for ongoing earnings than was available to him, including after taking into account that his understanding of the nature of the items was informed by documents not disclosed to the market.

938    Mr Houston set out his analysis of the market’s likely reaction to the cost savings and profit improving measures that were identified in the counterfactual disclosure.

939    One complexity in this process was that the counterfactual disclosure did not ascribe individual values to the cost savings and miscellaneous additional revenue items it identified, even though it was clear that Myer considered their combined achievement would result in a $30 million (equal to $107 million minus $77 million) increase in forecast NPAT in FY15. Mr Houston explained his approach to ascribing an individual effect on NPAT to each of these items in the following terms. But given that he has used the wrong counterfactual it is not necessary to rule on each of these estimates. Having said that, if the correctness of his counterfactual is assumed for the sake of argument, then what he estimated had some merit.

Effect on NPAT of achieving each individual cost and miscellaneous revenue item

940    According to Mr Houston, the NPAT forecast in the budget for FY15 approved by the board in July 2014 was the same as that resulting from the achievement of the cost items in the counterfactual disclosure, i.e., $107 million. Further, with one exception (being MAIP costs), the cost and revenue items listed in the counterfactual disclosure were the same as those underpinning the FY15 budget approved by the board, which contributed to an increase in forecast NPAT for FY15 from $77 million to $107 million.

941    In light of these similarities, Mr Houston assumed that the value of each cost and revenue item listed in the counterfactual disclosure was equal to the value of the corresponding item underpinning the FY15 budget approved by the board in July 2014. One consequence of this assumption was that he ascribed no value to the removal of MAIP costs listed in the counterfactual disclosure, because it appeared no such benefit underpinned the FY15 budget approved by the board.

942    This approach implied that the attainment of all the cost and revenue items listed in the counterfactual disclosure would have a net effect on NPAT equal to $32 million. However, the counterfactual disclosure indicated a combined effect on NPAT of $30 million (equal to $107 million minus $77 million). Mr Houston assumed that this discrepancy arose from the rounding of the values presented in the source document listing each of these items. For example, he calculated that the items in the source document sum to $111 million, whereas the source document indicates a sum of $110 million.

943    Mr Houston adjusted for this difference in rounding by scaling down the value of each cost and miscellaneous revenue item in equal proportion, so that their combined attainment would increase NPAT by $30 million, consistent with the counterfactual disclosure.

944    Mr Houston achieved this by multiplying the value of each item by an amount equal to 0.94 (equal to 30 million divided by 32 million).

A reduction in store wages – $11.25 million cost reduction with $8.44 million NPAT impact

945    Mr Houston said that the most substantial of the prospective items identified as underpinning forecast NPAT of $107 million in FY15 was a $11.25 million cost saving relating to store wages.

946    He noted that the potential to achieve a cost saving of this nature was identified in the June 2014 “budget update” for FY15 discussed between Mr Brookes and Mr Ashby, where it was noted that a cost saving of $12 million in relation to “store wages”:

[e]quates to 400,000 hours; or 16 hours per day, per store

947    This statement implied that the contemplated cost saving was expected to arise from a reduction in staff hours, rather than from a reduction in the rate of pay for floor staff.

948    Mr Houston said that the analyst commentary to which he referred suggested that it is probable the market would have expected any potential reduction in the staffing of Myer’s stores to have an adverse effect on its sales. However, the potential additions to Myer’s baseline FY15 NPAT within which these prospective cost savings fall does not provide for any corresponding adjustment for the adverse effect on forecast sales. To Mr Houston, that seemed unrealistic and so he assumed that the market would have disregarded such an action as being likely to increase Myer’s FY15 NPAT or ongoing earnings.

949    Drawing on the figures discussed between Mr Brookes and Mr Ashby, Mr Houston assumed that an $11.25 million cost saving for “store wages” would necessitate a reduction in floor staff hours of 15 hours per day per store, or 375,000 hours in total, calculated as $11.25 million divided by $12 million, and applied to the 400,000 hours estimate identified at Myer. Further, the FY15 budget presented to the board noted, in relation to store costs:

Sales per labour hour FY15 $208 vs FY14 $206

950    Mr Houston said that the reporting of this metric in the FY15 budget presented to the board was consistent with the proposition that the level of floor staff was important to sales. Adopting the more conservative FY14 metric of $206 sales per labour hour, a 375,000 hour reduction in floor staff time corresponds to a $77.25 million reduction in sales (calculated as 375,000 multiplied by $206).

951    Mr Houston, adopting the assumption that there is a causal relationship between staff hours and sales, and where each labour hour gives rise to $206 of sales, said that the information provided to him suggested that a $77.25 million decline in sales arising from this cost saving would reduce Myer’s FY15 NPAT by $14.0 million. This is calculated as $77.25 million divided by $33 million multiplied by $6 million. He noted that the FY15 budget presented to the board stated that a $33 million reduction in sales in FY15 would result in a $6 million reduction in NPAT.

952    Mr Houston said that this analysis suggests that the $8.44 million potential increase in forecast NPAT assumed by Myer to arise from a reduction in store wages may well have been more than offset by a larger reduction in NPAT, driven by its potential adverse effect on sales.

953    He said that the potential for any reduction in floor staff to have an adverse effect on Myer’s sales and earnings is reinforced by the views of equity analysts. Several analyst reports identify the detrimental effect on Myer’s business of past reductions in store hours and, notably, the need for increases in floor staff. Although these analysts’ opinions were expressed in response to Myer’s 19 March 2015 disclosure, in Mr Houston’s opinion it is likely that analysts would have expressed the same opinions on 11 September 2014.

954    In Mr Houston’s opinion, the market is likely to have interpreted the prospect of a reduction in Myer floor staff as likely to cause an adverse effect on sales, with the potential to cause a disproportionately greater adverse effect on Myer’s earnings. However, although the upper end of the FY15 NPAT range of $107 million detailed in the counterfactual disclosure depended in part on such a cost saving, Myer made no corresponding adjustment for the likely negative effect on forecast sales (and so NPAT) in FY15.

955    Mr Houston therefore concluded that the market would have ascribed no positive value to this potential cost saving, either in forming its expectations as to Myer’s FY15 NPAT or its ongoing earnings. Indeed, the market may well have considered this cost saving to have a net-negative effect on Myer’s earnings in FY15 and future years. On this reasoning, Mr Houston omitted this $11.25 million cost saving from his estimate of the upper bound of the expectations that would likely have been formed as to Myer’s ongoing future earnings, as at 11 September 2014.

A reduction in omni-channel/marketing expenses – $1.88 million cost reductions with $1.88 million improvement in NPAT

956    Mr Houston noted that Myer’s internal documents indicate that “omni-channel” expenses relate to marketing expenses across a broad range of categories, including cross-company advertising, visual merchandising, events, Myer.com and digital services. He said that the June 2014 budget update for FY15 noted that this potential saving was “across all areas”.

957    He said that an omni-channel approach to sales was a key element of Myer’s strategy. For example, in its annual report for FY14, Myer identified its omni-channel marketing as one of five key elements to its business strategy. In the “Chairman and CEO report” in Myer’s annual report for FY14, Mr Brookes and Mr McClintock highlighted that:

We invested significantly in improving our omni-channel capability to provide customers with more choice in when, where, and how they shop with us. This investment delivered positive results, with online sales growth of more than 100 percent during the year, supported by improved fulfilment with the opening of our dedicated online distribution centre in Melbourne (Victoria).

As we move into FY2015 we expect to begin realising the benefits of recent investments and a number of strategic initiatives. We see this 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, to position Myer at the forefront of a rapidly changing and competitive retail environment.

(Emphasis added.)

958    Myer stated elsewhere in its FY14 Annual report that:

Our online business represents an important growth platform, as customers increasingly choose to research and purchase products via our website. We are pleased with the continued acceleration in all key customer metrics including sales, average monthly visits, basket size, and online order value.

The strength of Myer’s brand represents a significant competitive advantage in omni-channel, and our social media presence on Facebook, Twitter, Instagram, YouTube, and Pinterest supports our strategy of inspiring more customers every day.

959    Mr Houston said that given the limited detail in relation to these contemplated cost savings, there is the potential for the marketing initiatives to which they relate to have little or no effect on sales. However, Myer’s June 2014 budget identifies such cost cuts as being:

[a] [r]isk to growth in sales, myer one [sic] & events.

960    Consistent with this sentiment, Mr Houston then noted that a number of analyst reports emphasise the importance of marketing expenditure to the performance of Myer’s business. For example, CLSA noted that reducing advertising spend was one of the cost cuts, along with staff reductions, that:

…has killed the customer experience and EBIT margins.

961    Similarly, Citi highlighted in March 2015 that:

…marketing costs need to rise by $5-10 million to boost customer traffic in its stores.

The challenge is the service and marketing investment may not have an immediate impact on sales, but the investment is necessary to restore sales over time.

962    Citi also highlighted both the importance of marketing to boost customer traffic into stores and the need for more sales staff to improve the conversion of customer traffic into sales. However, so Mr Houston said, Myer identified that it needed to reduce both marketing expenditure and sales staff to improve NPAT beyond $77 million in FY15, and implicitly assumed there would be no corresponding adverse effect on sales.

963    Nevertheless, on 12 November 2014 Deutsche Bank noted a previous statement made by Myer’s management:

Management noted that given the launch of its new brand positioning (“find wonderful”) and Myer Christmas Giftorium, it did not have to over rely on advertising and markdowns throughout the period.

964    On balance, in Mr Houston’s opinion the market would not have been likely to interpret a reduction in omni-channel/marketing expenditure as a form of sustainable cost saving, because of:

(a)    the strategic importance of Myer’s omni channel offer;

(b)    equity analysts’ views as to the adverse effect of previous reductions in marketing expenditure on customer experience and EBIT margins, and the need for increased expenditure; and

(c)    the relevance of marketing investment to restore sales over time, as noted by Citi.

965    Mr Houston therefore concluded that the market would likely have disregarded the potential for any valuation benefit arising from this $1.88 million cost saving in forming its view of Myer’s expected ongoing future earnings. However, he made an adjustment to his estimated lower bound for share price inflation to account for the one-off effect of this potential cost saving in FY15.

A reduction in IT expenses – $1.88 million cost reductions with $0.94 million improvement in NPAT

966    Mr Houston noted that there was only limited information as to the particular nature of the $1.88 million information technology (IT) cost saving identified as having the potential to increase NPAT by $0.94 million. However, Mr Houston said that Myer’s budget identified the opportunity to realise a $1.5 million cost saving for IT that indicated it related to the postponement of IT roles otherwise planned to be filled in FY15. A note attached to the IT cost saving in the budget stated:

Note $3m for 35 vacant roles Do we slow down the increase in the IT structure - stagger increase in resources over next 2 years?

967    If this category of “cost saving” references the postponement until FY16 of $1.88 million of costs otherwise planned to be incurred in FY15, the resulting benefit to Myer would not be equal to $1.88 million, so Mr Houston said. Rather, assuming there were no negative effects of such a deferral, the benefit to Myer would be equal to the time value of delaying this expenditure. In the context of the market valuation of Myer equal to approximately $1,295 million (calculated equal to the Myer share price of $2.15 on 11 September 2014 multiplied by the 585.685 million shares on issue on that day) on 11 September 2014, any such “cost saving” would have an immaterial effect on the share price. Mr Houston said that the effect on the share price would be equal to $1.88 million multiplied by Myer’s cost of capital, divided by the number of shares on issue. For example, if a $1 million cost must be incurred by a company with weighted average cost of capital (WACC) of 10 per cent, the cost of incurring such expenditure immediately would be $1 million. If the incurring of the cost was delayed by one year, the present-day value of the cost would be $1 million divided by (1 plus WACC), or $1 million divided by 1.10, and so $0.91 million. The saving to the company of the delay would then be $1 million minus $0.91 million, or $0.09 million.

968    On the other hand, Mr Houston said that if such a cost saving was sustainable indefinitely, its valuation effect would be assessed by reference to a change in ongoing earnings, as compared with the cost of any detrimental effects on the business.

969    Myer stated elsewhere that its strategic focus on omni-channel sales and its corresponding reliance on technology was said to necessitate continued improvements in its IT systems. For example, Myer highlighted in its 2014 Annual Report that:

With Myer’s increasing reliance on technology in a rapidly changing technological environment, outages, online disruptions and a failure to upgrade and improve our IT systems, could have a detrimental effect on our sales, business efficiencies, and brand reputation.

970    Similarly, Citi on 16 March 2015 also emphasised the importance of investing in IT, i.e., noting that:

Major offshore department stores spend a significant proportion of their capex on IT. The reality is that the evolution of digital retail means a frequent upgrade in IT is required. The growth in mCommerce is a good example of the need to continue investing in IT.

971    Citi also highlighted that Myer invested materially less in IT systems, as compared with its international comparators. In particular, Citi highlighted that Myer would need to increase its investment in IT to $30 to $50 million per annum, from $25 to 30 million per annum, to meet the comparable level of investment by Nordstrom and Debenhams.

972    Mr Houston said that in Myer’s FY15 budget presented to its board on 14 May 2014, it highlighted rapid growth in online sales as part of its:

Strategies / Actions to address Analyst concerns

Fast Track initiatives to drive rapid growth in online sales supported by improved distribution, click and collect rollout

973    In light of this material, Mr Houston concluded that the market would have been unlikely to have viewed favourably a $1.88 million reduction in Myer’s IT expenditure in FY15, principally because of the corresponding potential to inhibit one of its key strategies in FY15, i.e., omni-channel sales.

974    Mr Houston therefore disregarded any potential valuation benefit arising from a potential $1.88 million cost saving for IT in forming a market expectation of Myer’s ongoing future earnings. However, he made an adjustment to his estimated lower bound for share price inflation to account for the one-off effect of this potential cost saving in FY15.

A reduction in markdowns – $5.63 million cost reductions with $3.75 million NPAT improvement

975    Mr Houston said that the counterfactual disclosure identified the potential for reduced markdowns in FY15 to increase baseline NPAT by an amount equal to $3.75 million. He said that Myer’s internal documents indicated that this $3.75 million benefit to NPAT was underpinned by no corresponding adverse effect on sales.

976    Mr Houston said that it is well accepted in economics that for goods such as those sold by Myer the quantity demanded by customers will increase as prices reduce. In economic terms, the benefit to Myer of selling goods at reduced prices arises from the prospect that the reduction in its per unit profit margin is more than offset by the increase in sales elicited by those lower prices.

977    Although Myer was best placed to evaluate the prospect for this trade-off to have a favourable effect on its profitability, according to Mr Houston it seems unrealistic to assume that a reduction in the level of markdowns would not give rise to a lower level of sales than would otherwise be the case. Indeed, Myer’s FY15 budget update on 5 June 2014 noted that such a measure:

Could be a risk to MEB sales growth

978    Further, in the analyst presentation for FY14, Myer noted that its margin enhancing activities in FY14 were offset by:

Increased markdowns in a competitive market

979    On the subject of markdowns, Mr Brookes noted in the analyst call on 11 September 2014 that:

From a markdown point of view, we always start the year saying we’re going to spend less on markdowns, but it really depends. The unknown factor is two things, and that’s what happens from a micro and macroeconomic environment, and the second is what happens with our own ability to pick the right stock. So if those two work in our favour then we’ll probably spend less in markdowns than last year.

980    In Mr Houston’s opinion, Mr Brookes’ comment suggests that Myer determined its spend on markdowns on a year-by-year basis and, as such, any cost reduction from reduced markdowns would be assessed by the market as a one-off cost saving. This interpretation is consistent with an observation by Merrill Lynch who stated, as part of its FY15 forecasts, that:

…the gains from markdown reductions and reduced shrinkage appear to have been largely exhausted.

981    Mr Houston therefore concluded that the market would likely have disregarded the potential for any valuation benefit to arise from this $5.63 million cost saving in forming its view of Myer’s expected ongoing future earnings. However, Mr Houston made an adjustment to his estimated lower bound for share price inflation to account for the one-off effect of this potential cost saving in FY15.

A Foreign Exchange gain – $2.81 million gain with $1.88 million NPAT impact

982    Mr Houston noted that the counterfactual disclosure identified the potential for Myer to derive a $2.81 million foreign exchange gain that would increase its baseline FY15 NPAT by $1.88 million in FY15, i.e., in its 5 June 2014 budget update Myer identifies a potential:

Forex gain of $3m (in 1st half), based on current hedging levels

983    Myer explained in its 2014 annual report that:

To minimise the effects of a volatile and unpredictable exchange rate, Group policy is to enter into forward exchange contracts in relation to the Group’s overseas purchases for any 12 month period. The actual level of cover taken fluctuates depending on the period until settlement of the foreign currency transaction, within the Board approved hedging policy. This policy allows cover to be taken on a sliding scale between 25 –100% depending on the period to maturity (up to 12 months).

984    Mr Houston understood that this gain was expected to arise because Myer expected a more favourable exchange rate in the first half of FY15. However, he said that future exchange rates were determined by a range of macroeconomic factors beyond Myer’s control and were notoriously difficult to predict. Even if Myer had perfect foresight in the first half of FY15 and expected to realise this gain over that period, it is unlikely that the market would have expected that Myer could derive sustained foreign exchange gains into the future, so Mr Houston said.

985    Mr Houston therefore concluded that the market would likely have disregarded the potential for any valuation benefit arising from this $2.81 million revenue gain in forming its view of Myer’s expected ongoing future earnings. However, Mr Houston made an adjustment to his estimated lower bound for share price inflation to account for the one-off effect of this potential revenue gain in FY15.

Summary

986    In Mr Houston’s opinion, the market would have formed its view on the level of Myer’s ongoing future earnings and the associated risk of those earnings by reference to a maximum level of expected ongoing NPAT in FY15 equal to $107 million, less the NPAT impact of the cost savings and the miscellaneous revenue items just discussed, namely:

(a)    $8.44 million (store wage cost savings);

(b)    $1.88 million (savings from reduced omni/marketing);

(c)    $0.94 million (IT cost savings);

(d)    $3.75 million (savings from reduced markdowns); and

(e)    $1.88 million (revenue from foreign exchange gain).

987    In other words, if the counterfactual disclosure had been made, in Mr Houston’s opinion the market would have formed its view on expected ongoing future earnings as at 11 September 2014 by reference to an upper bound for forecast ongoing FY15 NPAT of $90.13 million.

988    Mr Houston assumed that over the period 11 September 2014 to 18 March 2015 the performance of Myer’s business was generally deteriorating relative to its expectations at the outset, whilst analyst expectations of FY15 NPAT were also declining. In such circumstances, Mr Houston assumed that the market would have expected Myer to adjust its business strategy to account for the changing market conditions and would have reassessed the ability of Myer to achieve the additional cost savings and miscellaneous revenue items had the counterfactual disclosure been made.

989    It follows, so Mr Houston said, that in the environment of declining business performance and falling market expectations, the market would likely have revised down its expectations as to Myer’s ability to achieve not only its baseline FY15 NPAT expectation but also the additional cost savings and miscellaneous revenue items it had identified. In Mr Houston’s opinion, the upper bound of the market’s assessment of Myer’s ongoing earnings as at 11 September 2014 ($90.13 million) would have been revised steadily downwards through the relevant period to reach the lower bound of the market’s assessment of Myer’s earnings ($77 million) that ultimately prevailed by 19 March 2015.

990    According to Mr Houston, the rate of decline in market expectations and the date at which the market would have placed no value on the combined effect of baseline FY15 NPAT and the additional cost savings or miscellaneous revenue items it hoped to achieve is inherently uncertain. In the absence of any detail as to precisely what Myer would have disclosed to the market following 11 September 2014, Mr Houston adopted the assumption that the time path of adjusted market expectations would have been linear, i.e., declining from $90.13 million as at 11 September 2014 to $77 million as at 18 March 2015. The effect of this assumption is illustrated in the following graph. Of course this is all based upon Mr Houston’s counterfactual disclosure which I do not accept.

Actual and counterfactual market expectations as to ongoing earnings

Market expectations of one-off effects on earnings in FY15

991    Mr Houston identified that a number of the cost savings or miscellaneous revenue items that Myer hoped to achieve would likely have been assessed by the market as either one-off items or have been disregarded as unlikely to have the potential to improve its ongoing earnings in FY15. These items were potential cost saving from a reduction in store wages, savings from reduced omni/marketing, IT cost savings, savings from reduced markdowns, and revenue from a foreign exchange gain.

992    In his opinion, the market would have either disregarded or valued negatively the potential cost saving from a reduction in store wages, either in forming its expectations as to ongoing earnings or earnings in FY15. It follows that the one-off impact on FY15 NPAT of this cost saving was at most zero.

993    As to the other potential reductions in costs or increases in revenue that he identified as likely to be one-off, the limited information available made it difficult to estimate whether the market would have incorporated any of these cost and revenue items, albeit one-off in nature, into its expectations of FY15 NPAT. Adopting a conservative approach, he therefore assumed that the market would have formed the view that Myer would have been able to achieve all of these reductions in costs or increases in revenue, thereby giving rise to a one-off FY15 NPAT effect of $8.44 million, being $1.88 million (savings from reduced omni/marketing) + $0.94 million (IT cost savings) + $3.75 million (savings from reduced markdowns) + $1.88 million (revenue from foreign exchange gain).

(b)    Upper and lower bounds based upon Mr Houston’s counterfactual

994    Now as I have said, Mr Houston assumed that to achieve compliance with its continuous disclosure obligations, Myer was obliged to clarify its CEO’s advice to the market on 11 September 2014 by immediately disclosing that:

(a)    it expected sales in FY15 to be in the order of $3,310 million to $3,330 million and, on that basis, it expected to achieve NPAT of approximately $77 million (“baseline FY15 NPAT”); and

(b)    on the same sales volume, Myer hoped to achieve NPAT in the order of $107 million in FY15 by achieving certain cost savings and miscellaneous additional revenue.

995    Mr Houston saw that his task was to estimate how the market would have valued Myer’s shares over the relevant period had the counterfactual disclosure been made on 11 September 2014. So, to estimate the effect that the counterfactual disclosure would have had on Myer’s share price, it is necessary to assess the extent to which the market’s expectations of Myer’s future earnings and the associated risk of those earnings would have changed in light of that counterfactual disclosure. Since the assumed counterfactual disclosure involved a range of NPAT outcomes for FY15, Mr Houston approached his task by estimating a likely upper and lower bound for the market’s expectations of Myer’s future earnings following the counterfactual disclosure.

Lower bound for market’s assessment of Myer’s future earnings

996    Under the counterfactual disclosure, Myer would have indicated that it expected to achieve NPAT of approximately $77 million in FY15 and that, on the same sales volume, it hoped to achieve NPAT in the order of $107 million by achieving certain cost savings and miscellaneous additional revenue.

997    Although Myer did not disclose any revisions to its forecast NPAT until 19 March 2015, the market was nevertheless revising downward its expectations of FY15 NPAT over the relevant period. For example, in response to Myer’s first quarter sales update released on 12 November 2014, the market reduced its expectations of FY15 NPAT from $94.89 million to $92.72 million, a decline of $2.17 million or 2.3 per cent. Further, it was likely that other external information of relevance to the prospects for Myer’s financial performance, such as economy-wide indicators of consumer spending, may also have contributed to declining analyst expectations over this period.

998    Although the factors underpinning the market’s expectation as to Myer’s FY15 NPAT were likely to have changed over the relevant period, in Mr Houston’s opinion a reasonable lower bound as to market expectations of Myer’s FY15 NPAT and ongoing earnings in light of the hypothetical, counterfactual disclosure was $77 million. This figure represented the lower end of the FY15 NPAT range indicated by the counterfactual disclosure, but was not less than the bottom of the range set out in that hypothetical disclosure. Taking into account that the market had otherwise adopted an average FY15 NPAT expectation of $96.85 million on 11 September 2014 in light of Myer’s guidance of “anticipated profit growth” from the previous year’s NPAT of $98.5 million, Mr Houston considered that this was a reasonable (i.e., conservative) lower bound estimate.

999    Mr Houston therefore adopted an FY15 NPAT of $77 million as a lower bound estimate of the market’s expectations of ongoing earnings in light of the counterfactual disclosure. This lower bound estimate did not include any additional one-off items affecting earnings in FY15. This contrasted with Myer’s 19 March 2015 announcement that provided FY15 NPAT guidance of $75 million to $80 million, but before accounting for an expected one-off cost of $7 million.

Upper bound for the market’s assessment of Myer’s future earnings

1000    The counterfactual disclosure that Mr Houston was asked to assume would have been made by Myer details various potential cost savings and miscellaneous revenue items that, if realised, had the potential to increase Myer’s FY15 NPAT to $107 million, an increase from baseline FY15 NPAT of $77 million in the order of $30 million, or 39 per cent.

1001    If Myer had made a disclosure that included the potential to increase FY15 NPAT from its baseline figure, the market would have undertaken an assessment of both the nature of those potential cost savings and miscellaneous revenue items, and the likelihood that they could have been achieved. In other words, the market would have derived its expectations of Myer’s ongoing earnings by excluding any cost savings or miscellaneous revenue items that were either:

(a)    one-off in nature, and so would not contribute to Myer’s ongoing expected future earnings; or

(b)    were unlikely to be realised in FY15 or beyond.

1002    Mr Houston estimated the level of FY15 NPAT that would likely have informed the market’s upper bound expectations of Myer’s ongoing earnings, in light of the counterfactual disclosure. He approached this by deriving an estimate of:

(a)    the market’s upper bound expectations of FY15 NPAT that would likely have informed Myer’s ongoing earnings immediately following the counterfactual disclosure on 11 September 2014; and

(b)    the path by which the market’s initial expectations formed at 11 September 2014 would have changed over the period to 18 March 2015.

1003    Mr Houston also estimated the contribution to FY15 NPAT from the cost savings and miscellaneous revenue items that the market would have considered as one-off effects, which he used to estimate the effect on Myer’s share price of the disclosure of those elements of the counterfactual disclosure.

1004    The counterfactual disclosure presented a range of forecast FY15 NPAT outcomes, where a level of earnings above the bottom end of that range depended on the achievement of particular cost and miscellaneous revenue items in that year. In the event the counterfactual disclosure had been made, market participants’ precise expectations as to Myer’s NPAT in FY15 would have been informed by their assessment of:

(a)    the likelihood of Myer achieving those cost and revenue items; and

(b)    the implications of each of those items for Myer’s future earnings (and so its cash flows).

1005    Since the counterfactual disclosure presented a range of potential NPAT outcomes and Mr Houston had only limited information on the factors underpinning that range, he estimated an upper and lower bound of likely market expectations as to Myer’s future earnings following the counterfactual disclosure. As I have said, he had taken a relatively conservative approach to estimating both these bounds, by:

(a)    adopting a lower bound that was equal to the bottom of the disclosed range, even though analysts had otherwise adopted FY15 NPAT expectations that were less than those otherwise disclosed by Myer; and

(b)    adopting an upper bound that deducted only those items for which there was a sufficient basis to draw conclusions as to their one-off nature or other likely effect on value.

1006    Given the achievement or otherwise of the identified cost and miscellaneous revenue items had the potential to increase FY15 NPAT by up to 39 per cent, market participants and analysts would likely have sought clarifying details on the nature and expected effects of those items. This process may well have resulted in the emergence of a clearer picture in relation to Myer’s future earnings, as compared with that on which Mr Houston’s analysis was based.

1007    In the absence of further information that would permit the estimation of a more precise range or point estimate of market expectations as to Myer’s future earnings following the counterfactual disclosure, in the graph below he presented his estimate of the extent of inflation in Myer’s share price over the relevant period by taking the midpoint of that range on each day, along with the upper and lower bounds described above. Adopting this mid-point, he set out tabulated estimates of share price inflation on each day of the relevant period. For completeness, he also presented estimates of Myer’s share price inflation derived using the upper and lower bounds. I have set this out as an annexure to my reasons.

Estimated share price inflation 11 September 2014 to 18 March 2015

Criticisms of Mr Houston’s assumptions regarding the counterfactual bounds

1008    Mr Houston relied on three counterfactual bounds that were meant to represent the estimates that the market would have made for FY15 NPAT under the counterfactual disclosure assumed by Mr Houston.

1009    Dr Prowse has criticised Mr Houston’s counterfactual bounds which it is appropriate to elaborate on at this point.

1010    The counterfactual lower bound used by Mr Houston was a constant value of $77 million. This value resulted directly from the assumption that Mr Houston relied upon to the following effect:

Portfolio Law has asked me to assume that, to achieve compliance with its continuous disclosure obligations, Myer was obliged to clarify its CEO’s advice to the market on 11 September 2014 by immediately disclosing that:

    it expected sales in FY15 to be in the order of $3,310 million to $3,330 million and, on that basis, it expected to achieve NPAT of approximately $77 million (‘baseline FY15 NPAT’); and

    on the same sales volume, Myer hoped NPAT in the order of $107 million in FY15 by achieving certain cost savings and miscellaneous additional revenue.

1011    Dr Prowse was asked to perform his analysis under the assumption that I found that Mr Houston’s assumption regarding expected NPAT of $77 million was not reasonable. Dr Prowse found that the assumption he had been asked to make to be reasonable. He said that the $77 million figure included in the counterfactual disclosure given to Mr Houston appeared to be related to an early version of Myer’s internal budget calculations. The $77 million NPAT forecast in the source document was an early projection that did not consider the strategic initiatives that Myer was planning to undertake in FY15. Mr Brookes described the $77 million NPAT as from a “first cut of the budget [that] would ordinarily start with a ‘do nothing’ or ‘take no actions’ base figure without allowing for the impact of any initiatives to be implemented in the coming year”. Mr Brookes stated that the next stage of the budgeting process would be to adjust this base figure “by reflecting the anticipated impact of the strategic initiatives and investments planned for the business, as well as possible actions that might be taken in relation to costs”. Similarly, Mr Ashby referred to the $77 million figure as “simply a step in the process of developing the budget”.

1012    Based on this assumption, Dr Prowse did not include the lower bound counterfactual NPAT used by Mr Houston in his analysis.

1013    Further, the midpoint counterfactual bound used by Mr Houston was simply the average of the upper and lower bounds. For the same reasons that Dr Prowse did not use the lower bound, he also did not use the midpoint in his analysis.

1014    Let me now say something about the upper bound.

1015    To reach his starting (11 September 2014) upper bound counterfactual, Mr Houston began with the $107 million value stated in his assumed counterfactual disclosure and made five adjustments. These adjustments were related to: (a) store wage cost savings; (b) savings from reduced omni‐channel / marketing; (c) IT cost savings; (d) savings from reduced markdowns; and (e) revenue from foreign exchange gain. Mr Houston asserted that the market would have ascribed no positive value or disregarded the potential for any value arising from these items in forming its view of Myer’s expected ongoing future earnings.

1016    Now as an economist who was not privy to the internal budgeting process at Myer and who was not a market analyst of Myer at the time, Dr Prowse did not have an independent opinion as to how market analysts would have reacted to Mr Houston’s assumed counterfactual disclosure. But he asserted that Mr Houston’s assertions regarding how the market would have viewed and reacted to these elements of the internal Myer budget were inconsistent with both the testimony of Mr Ashby and the expert opinion of Mr Molony.

1017    In particular, Dr Prowse noted that Mr Ashby disagreed with the analysis and assumptions made by Mr Houston to conclude that the market would disregard the potential for any value arising from these items.

1018    In addition, he noted that Mr Molony was of the opinion that Myer’s budgets were “prepared by experienced retailers with a detailed knowledge of the Australian retail market and the Myer business” and that “Myer undertook a comprehensive budgeting process for FY15” which “included seeking feedback from all Myer merchandise groups and subsequent directions from the CFO (and endorsement by the CEO)”.

1019    Dr Prowse concluded that Mr Houston’s assertions regarding how he believed analysts would have reacted to the counterfactual upper bound disclosure were problematic. And if any or all of Mr Houston’s adjustments were not reasonable, Mr Houston’s estimates of inflation in Myer’s stock price would be correspondingly reduced. In particular, if all of Mr Houston’s five adjustments were unreasonable, then Mr Houston’s inflation estimates using his upper bound counterfactual would be reduced to zero. This would be established using the correction to Mr Houston’s methodology with regard to the appropriate way to model market expectations of upper bound NPAT from 11 September 2014 to 18 March 2015 by basing it on how actual market expectations changed.

1020    Further, Mr Houston made two assumptions regarding how market expectations of his upper bound earnings scenario would develop after 11 September 2014 being that:

(a)    by 18 March 2015 the market expectation of earnings would be approximately $77 million; and

(b)    the market expectations of earnings would decline linearly between 11 September 2014 and 18 March 2015.

1021    But according to Dr Prowse, neither assumption made by Mr Houston has any basis. Mr Houston claimed that “the market would be likely to have revised down its expectations as to Myer’s ability to achieve … the additional cost savings and miscellaneous revenue items it had identified”. But according to Dr Prowse, unlike Mr Houston’s evaluation of Myer’s internal analysis as of 11 September 2014, he did no analysis of any of these other items, either individually or collectively, as a basis for his assumption that the market would have entirely discounted them and ignored them in assessing Myer’s likely FY2015 NPAT level by 18 March 2015, and that they would have done so in a strictly linear manner.

1022    Dr Prowse found the assumptions by Mr Houston not to be reasonable and to have no basis in economics or fact. He believed a more reasonable assumption to use was one that used information about how the market actually adjusted its FY15 NPAT expectations over the relevant period. He believed it was reasonable to use this information as a guide as to how the market would have adjusted its expectations of FY15 NPAT over time in Mr Houston’s upper bound counterfactual scenario. Accordingly, he adjusted the value of the market expectations of FY15 NPAT in the counterfactual world each day by the rate at which it actually changed in the relevant period. The graph below shows the actual Bloomberg BEst consensus estimate of earnings, his estimate of the adjusted counterfactual bound, assuming that all five of Mr Houston’s adjustments to consensus FY15 NPAT after the counterfactual disclosure were reasonable, and Mr Houston’s estimate of the counterfactual bound.

Mr Houston’s “Upper Bound” Counterfactual and Adjusted Counterfactual Bound

1023    Making just this one correction to Mr Houston’s analysis, but holding all else constant, resulted in estimated upper bound share price inflation amounts that were approximately 19% lower than estimated by Mr Houston.

1024    Now as I have said, Mr Houston estimated the lower and upper bounds for the likely earnings expectations that would have been formed by the market in light of his assumed counterfactual disclosure. Under that counterfactual disclosure, Myer would have indicated that it expected to achieve NPAT of approximately $77 million in FY15, and that on the same sales volume it hoped to achieve NPAT in the order of $107 million by achieving certain cost savings and miscellaneous additional revenue. He formed his upper and lower bounds for market expectations as to NPAT by reference to alternative assumptions as to how the market would have viewed the indicated cost savings and miscellaneous additional revenue aspirations. He estimated that the market would have arrived at a lower bound expected NPAT of $77 million for FY15 if the market did not assign any value to the cost savings and miscellaneous additional revenue in the counterfactual disclosure, and continued to maintain this expectation up to 19 March 2015. He estimated that the market would have arrived at an upper bound expected NPAT of $90.13 million on 11 September 2014, falling linearly to $77 million on 18 March 2015, if the market had assigned a positive NPAT impact to cost savings and miscellaneous additional revenue items as he had described.

1025    And as I have indicated, Dr Prowse was asked by Myer to assume that Mr Houston’s assumption that Myer was obliged to disclose to the market that it expected to achieve NPAT of approximately $77 million in FY15 was not reasonable. So, as a consequence of his instruction that the assumption given to Mr Houston was not reasonable, Dr Prowse did not include either Mr Houston’s lower bound or midpoint counterfactual NPAT in his analysis.

1026    In discussing Mr Houston’s upper bound estimate of the market’s expectations, Dr Prowse referred to the evidence of Mr Ashby and the expert opinion of Mr Molony. Specifically, Dr Prowse recited that:

(a)    “…Mr. Ashby disagrees with the analysis and assumptions made by Mr. Houston to conclude that the market would disregard the potential for any value arising from these items”; and

(b)    “…Mr. Molony is of the opinion that, based on the information he has reviewed, Myer’s budgets were “prepared by experienced retailers with a detailed knowledge of the Australian retail market and the Myer business” and that “Myer undertook a comprehensive budgeting process for FY15” which “included seeking feedback from all Myer merchandise groups and subsequent directions from the CFO (and endorsement by the CEO)””.

1027    But none of the observations of Mr Ashby or Mr Molony caused Mr Houston to alter his earlier upper bound estimate as to market expectations of Myer’s FY15 NPAT given the counterfactual disclosure assumption provided to him.

1028    In his opinion most of Mr Ashby’s observations concerned the strength of the counterfactual disclosure assumption Mr Houston was asked to make, and so had limited relevance for his assessment of market expectations in light of that disclosure.

1029    Further, in his opinion it was incorrect to suggest that equity analysts would not review all aspects of a disclosure that contained information relevant to a company’s earnings. By way of example in contradiction to that suggestion, a few days prior to Myer’s 19 March 2015 disclosure, Citibank wrote “Our calculation for staffing investment equates to $20 million, which is equivalent to six-full time equivalent staff per store. This would lift the service levels of [sic] 4% and close to the level achieved in 2010”.

1030    Further, in his opinion Mr Molony’s observations related to the quality of Myer’s budgeting process and so had limited relevance for Mr Houston’s assessment of market expectations.

1031    Further, Mr Houston noted that Dr Prowse neither developed an alternative counterfactual disclosure nor provided any alternative analysis of how the market may have assessed the earnings effects of various potential cost savings and miscellaneous additional revenue items. Indeed, despite the listing of numerous analyst reports in an appendix to his report, Dr Prowse’s report did not make reference to any analyst reports in his assessment. His analysis of Mr Houston’s upper bound estimate of the market’s likely earnings expectations was limited to inferences drawn from the statements of Mr Ashby or Mr Molony, and was deficient to that extent.

1032    Further, Dr Prowse contended that Mr Houston’s approach to reducing Mr Houston’s upper bound estimate of earnings expectations to the level that was ultimately disclosed by Myer was not reasonable. In his opinion, the changes in the upper bound estimate for market earnings expectations should have been based on how the market actually adjusted its FY15 NPAT expectations over the relevant period. On this basis, Dr Prowse adjusted Mr Houston’s upper bound value of market expectations of FY15 NPAT each day by the rate at which the actual Bloomberg BEst consensus changed in the relevant period. But according to Mr Houston, the difficulty with Dr Prowse’s approach is that the profile of the Bloomberg BEst consensus could not be expected to provide a reasonable approximation of market expectations over time under the counterfactual disclosure. Under the counterfactual disclosure, analysts were given different and more detailed guidance, which would have allowed them to make their own assessment of the likelihood of achieving each of the various cost savings and miscellaneous additional revenue items. Such considerations could not be reflected in the Bloomberg BEst consensus. Mr Houston’s upper bound was equivalent to assuming that analysts would have revised the probability, which they placed on the cost savings and miscellaneous additional revenue items being realised, in a linear fashion from 100 per cent on 11 September 2014 to zero per cent on 18 March 2015.

1033    In a sense most of this debate is academic as I have rejected Mr Houston’s assumed counterfactual disclosure, the reasons for which I will explain in more detail later.

(c)    Constant dollar and constant percentage approaches

1034    As I have said, there were two alternative approaches to using an observed effect on the share price at a particular date to estimate share price inflation at a different date, that is:

(a)    the constant dollar approach, which involves application of an observed effect on the share price measured in absolute terms; or

(b)    the constant percentage approach, which involves application of an observed effect on the share price measured in relative terms.

1035    Mr Houston explained that the decision as to which approach to apply depends upon the nature of the announcement that is being assessed. In this context, the information the subject of these proceedings concerns Myer’s forecast profitability in FY15. This forecast is a reference point for the market’s assessment of the level and associated risk of future earnings.

1036    By way of example, each of the equity analyst reports available to Mr Houston that were published on either 19 or 20 March 2015 following the corrective disclosure not only revised downwards their expectations as to Myer’s FY15 NPAT but also their expectations as to Myer’s NPAT in FY16 and FY17, as presented in the Table below.

Effect of the corrective disclosure on analyst expectations, March 2015

Analyst

FY15

FY16

FY17

Before ($m)

After ($m)

Change

Before ($m)

After ($m)

Change

Before ($m)

After ($m)

Change