Ann: COVID-19 Trading Update 46 - Week Ended 29 January 2021, page-48

Sorry, AlphaX, that's just not right. You're obviously entitled to your opinion, and fair enough that you have reservations about the outage more generally, but the idea that a claim could be made alleging misleading or deceptive conduct for something as general as "you made me think my terminal would always work" (when there is in fact no evidence whatsoever of any such representation on the part of Tyro) is just plain wrong.

If you are going to plead misleading or deceptive conduct, you need to be very specific and you need to show direct loss as a result of the alleged misrepresentation. Seriously, here is a passage from a High Court judgment on the issue (Miller and Associates Insurance Broking v BMW Australia Finance Limited (2010) 241 CLR 357):

"The cause of action for contravention of statutory prohibitions against conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive has become a staple of civil litigation in Australian courts at all levels. Its frequent invocation, in cases to which it is applicable, reflects its simplicity relative to the torts of negligence, deceit and passing off. Its pleading, however, requires consideration of the words of the relevant statute and their judicial exposition since the cause of action first entered Australian law in 1974. It requires a clear identification of the conduct said to be misleading or deceptive. Where silence or non-disclosure is relied upon, the pleading should identify whether it is alleged of itself to be, in the circumstances of the case, misleading or deceptive conduct or whether it is an element of conduct, including other acts or omissions, said to be misleading or deceptive."

Alternatively, Justice Hammerschlag of the NSW Supreme Court in Swiss RE International SE v David Simpson (2018) NSWSC 233:

"Where plaintiffs, in a proceeding such as this, wish to make significant charges of misleading or deceptive conduct with potentially very significant consequences, it is incumbent on them to articulate their case with precision."

Further, any customers would need to show that the specific misrepresentation directly caused their loss. Ie they would need to prove that they entered into any contract because of some representation on the part of Tyro that their terminal would not go out (as distinct from, e.g. the better prices Tyro offered). Where the customer is bringing the claim, the onus is on them to establish their case.

The better cause of action here would have to be something like negligence - but even then, outages are a natural part of the business of providing merchant services (which is why you see them all the time from the Big 4), so again, you would need to show specific conduct on the part of Tyro which falls so far below the general standard of care expected from a provider in their position (ie a simple system outage won't get you across the line - it needs to be manifestly bad).

From a legal perspective, there is quite simply not much to see here. My guess is that Bannister Law had hoped there would be a material non-disclosure to the market, and wanted to come at this from a shareholder class action perspective, but of course, the past 3 weeks have shown that Tyro has been nothing but upfront to the market, so that fell away. That's probably why we haven't heard anything from them since 13 January....