[paragraph 2443] Instead, although there was a lack of evidence as to what was, in fact, relied upon, doing thebest one can, the NAW Transaction Projection appears to have been based on high level andrough estimates of the total addressable market, it was a “swag or a swing at best”, it was ahighly speculative figure that was not based on any confirmed data. For instance, the 1.15billion represented the total addressable market and there was no basis for GetSwift to assumethat it could capture the entire market. There does not appear to be any independentinformation, data or research to quantify any of the deliveries numbers, there is no evidence ofGetSwift conducting any real analysis of the market. Indeed, Mr Hunter and Mr Macdonaldknew that Advance Auto Parts did 64 million deliveries annually and O’Reilly Auto Parts did8 million deliveries per month and, given these were two of the largest automotive companies,Mr Hunter and Mr Macdonald must have recognised (or at least should have recognised) thata projection of 1.15 billion could not represent the number of deliveries. These estimates donot appear to fall in the realm of possibility, let alone that of reasonableness.
[2444] There is no cogent evidence that establishes the objective truth of the NAW Transaction Projection, or that GetSwift had reasonable grounds for the making of this figure. The origin of any assumption that GPC made 2.4 billion deliveries per year is not clear and the calculation of the NAW Projection Information falls within the peculiar confines of Mr Hunter’s knowledge, given that he drafted the First NAW Announcement. Again, Mr Hunter did not explain his reasoning so we have no basis upon which we can judge what was actually on his mind and the material upon which he relied.
[2458] By failing to disclose the NAW Projection Information, by reason of their conduct in relationto the First and Second Agreement After Trial Representations, and by contributing to thedrafting, approving, authorising and directing the transmission to the ASX of the Second NAWAnnouncement, the Third NAW Announcement and the April Appendix 4C, GetSwift, and MrHunter and Mr Macdonald personally, made the First NAW Agreement Representations, theNAW Quantifiable Benefit Representations and the Second NAW Agreement Representations.As a result, I am satisfied that each of them engaged in conduct contravening s 1041H of theCorporations Act and s 12DA of the ASIC Act.
Emphasis added
GSW Price at posting:
29.0¢ Sentiment: None Disclosure: Not Held
