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Quick Exchange Ptd Ltd is a share trader.
Quick Exchange Ptd Ltd is a share trader. Recently, Quick Exchange has embarked on a course of making offers to purchase shares from shareholders in listed companies immediately after the company announces a profit downgrade. For instance, on 1 August 2013, Quick Exchange wrote to 10,000 natural person shareholders in Big Miner Ltd, following Big Miner's announcement of a profit downgrade due to lower than expected GDP growth in China.
The offer document stated:
This is an important document. It should be read in its entirety.
Please consult your financial or other adviser immediately.
Big Miner Limited (Big Miner) announced a significant profit downgrade on 31 July 2013. According to the register of holders of shares in Big Miner, you own the number of shares set out on the enclosed Acceptance Form (Your Shares). Offeror is now making an offer to you to buy your shares.
Offer
Offeror offers to buy Your Shares at a price of $1 per share, subject to the terms set out in this document (Offer). You must accept this offer within 1 month by completing and returning the enclosed Acceptance Form.
Payment
If you accept the Offer, you will be posted a cheque for $1 for each of Your Shares. The cheque will be posted within 7 days of Offeror receiving your SRN.
Fair estimate of value
Big Miner recently issued a prospectus dated 29 June 2013, for the issue of 11,111,111 shares at a price of $1.10. Offeror expects that in deciding to issue shares at that price, Big Miner received and relied on expert advice as to the price investors would be willing to pay to subscribe for the shares on offer under the prospectus. Offeror has also considered the impact of the lower than expected growth in China's GDP, which is discussed in Big Miner's announcement to the ASX of 31 July 2012.
On the basis of the above information, a fair estimate of the value of a share in Big Miner at the date of the Offer is a range of $0.90 to $1.10.
Important qualification to fair estimate of value
The above estimate is provided in good faith. However, neither Offeror nor its director is qualified to provide valuations. Accordingly, Offeror does not accept any liability for loss suffered by you. If you wish to obtain a valuation of Your Shares, you should consult an appropriately qualified valuer.
300 shareholders in Big Miner accept Quick Exchange's offer. However, it turns out that Quick Exchange failed to consider GDP improvements in other BRIC countries and also improvements in Europe in stating the "fair estimate of value". If those improvements had been taken into account, it is likely that a higher fair estimate of value would have resulted. The ACCC and some sellers learn of this and would like to take action against Quick Exchange.
Question
(a) Assuming there has been a breach of contract, would Quick Exchange be liable for damages for that breach of contract to sellers?
(b) Is Quick Exchange liable for breach of s18 of the Australian Consumer Law?
Assume that the ACL can apply to offers in relation to securities.
A's to argue from Quick Exchange's perspective.
B's to argue from the sellers' and ACCC's perspectives.
