[Paragraph 204] On 30 March 2017, GetSwift and CBA entered into an agreement described as a “Strategic Partnership Agreement” (CBA Agreement). Pursuant to the CBA Agreement, CBA and GetSwift agreed, relevantly, to work in partnership with the aim of providing an application (GetSwift App) with which customers would be able to optimise, dispatch, route, and keep track of their deliveries to end customers on any Albert device. Albert devices are portable, iPad-like, payment terminals which CBA issued to its merchant customers for use by them to receive payment for goods and services. Unlike traditional payment terminals where the merchant has a physical PIN pad, an Albert terminal is an interactive touch screen that allows the merchant to be able to use applications on the device similar to a smart phone.235 During 2017, “CBA merchants” were business customers who had successfully applied to CBA to receive merchant services from the bank. Some CBA merchants, but not all, were provided with one or more Albert terminals.
[1332] While GetSwift might not have “assumed” the existence of 55,000 retail merchants, the reality is that it should not have calculated the CBA Projections using the 55,000 figure. This is because I am satisfied that the factual circumstance alleged by ASIC in subparagraph (c) – that CBA informed GetSwift that the number of retail merchants was not 55,000 – existed.
[1333] The documentary record reveals that CBA (via Mr Budzevski and Ms Kitchen) attempted to correct the 55,000 merchant figure on at least three occasions: on 2 March 2017, 9 March 2017 and 3 April 2017.
[1344] First, as I have outlined above, I accept the evidence of the key CBA witnesses in respect of these figures: see [364]. Each of Mr Madoc, Mr Chambers, Mr Budzevski and Ms Kitchen did not know the source of the 257,400,000 and $9 billion figure, nor could they recall discussing or providing these figures to GetSwift. In addition, Ms Gordon also did not know how these figures were calculated, and first heard of them when she received the draft media release from Mr Hunter on 21 February 2017.
[1349] In the end, I am satisfied that both the CBA Deliveries Projection and the CBA Value Projection had not been provided by, or otherwise approved by, CBA. Factual circumstance (d) of the CBA Projection Information existed.
[1364] Having established each of the four elements of ASIC’s continuous disclosure contravention in respect of the CBA Projection Information (absent element (b), which was not made out), I conclude that GetSwift contravened s 674(2) of the Corporations Act by failing to disclose the CBA Projection Information from 4 April 2017 to the date of commencement of this proceeding. By failing to disclose the CBA Projection Information and by contributing to the drafting, approving, authorising and directing to the ASX of the CBA Announcement, I am satisfied that GetSwift and each of Messrs Hunter and Mr Macdonald personally made the CBA Agreement Representations. As a result, each of them engaged in conduct that was misleading or deceptive, or likely to mislead or deceive. While I am satisfied that the CBA Price Sensitivity Representation was made, I am not satisfied it was misleading and deceptive.
GSW Price at posting:
29.0¢ Sentiment: None Disclosure: Not Held
