NOTICE OF FILING. Details of Filing

Transcription

1 NOTICE OF FILING This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on 20/04/2016 6:45:21 PM AEST and has been accepted for filing under the Court s Rules. Details of filing follow and important additional information about these are set out below. Details of Filing Document Lodged: Defence - Form 33 - Rule File Number: File Title: Registry: NSD757/2012 Stephen Hopkins & Anor named in the Schedule as Trustees for the Hopkins Superannuation Fund v AECOM Australia Pty Ltd ACN (formerly known as Maunsell Australia Pty Ltd) NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA Dated: 21/04/2016 3:10:57 PM AEST Registrar Important Information As required by the Court s Rules, this Notice has been inserted as the first page of the document which has been accepted for electronic filing. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties. The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court s Rules the date of filing of the document is the day it was lodged (if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry.

2 Form 33 Rule Amended Defence to the Second Further Amended Statement of Claim (Third Fourth Further Amended Defence) Filed pursuant to the orders made by his Honour Justice Nicholas on [insert date]11 March July 2014 Federal Court of Australia District Registry: New South Wales Division: General No. 757 of 2012 Stephen Hopkins and another as Trustees for The Hopkins Superannuation Fund Applicants AECOM Australia Pty Ltd (ACN ) (formerly known as Maunsell Australia Pty Ltd) First Respondent RiverCity Motorway Management Limited (Administrators appointedin liquidation) (ACN ) Second Respondent RiverCity Motorway Services Pty Ltd (Administrators appointedin liquidation) (Receivers and Managers appointed) (ACN ) Third Respondent Part A. Contents, definitions and document identification numbers Contents PART A. CONTENTS, DEFINITIONS AND DOCUMENT IDENTIFICATION NUMBERS... 1 Contents... 1 Definitions... 6 Filed on behalf of AECOM Australia Pty Ltd, First Respondent Dr Andrew Bell SC, Elliot Hyde of Counsel and Dr Ruth Higgins of Counsel and Mark Desmond Chapple and Jayme-Lyn Hendriks of Baker & Prepared by McKenzie Law firm Baker & McKenzie Tel Fax Mark.Chapple@bakermckenzie.com Address for service Level 27, A.M.P. Centre, 50 Bridge Street, Sydney NSW v2\SYDDMS v2\SYDDMS v1\SYDDMS v1\SYDDMS v2\SYDDMS v1\syddms v1\syddms

3 Part A. Contents, definitions and document identification numbers Document identification numbers... 6 PART B. NORTH-SOUTH BYPASS TUNNEL... 7 Dramatis personae... 7 Leighton... 7 ABN AMRO Baulderstone Bilfinger Sponsor Clients RCM SPVs AECOM Australia NIEIR Keith Long PB HTS Beca Mallesons Peter Hicks Robert Morris Charles Mott Malcolm Coleman Duncan Olde AECOM Australia's NSBT Work RCM Project Team AECOM Australia actions Hicks' AECOM Australia Actions Morris' AECOM Australia Actions Mott's AECOM Australia Actions Coleman's AECOM Australia Actions Olde's AECOM Australia Actions NIEIR's Work, NIEIR's Additional Statements, AECOM Australia's reliance and Hicks' NIEIR Actions NIEIR's Work NIEIR's delivery of NIEIR's Growth Forecasts and NIEIR's Additional Statements AECOM Australia's reliance upon NIEIR Hicks' NIEIR Actions Additional traffic forecasters' work, conclusions and related RCM Project Team actions Keith Long's Work and Keith Long's Conclusions Hicks' Keith Long Actions Morris' Keith Long Actions PB's Work and PB's Conclusions Hicks' PB Actions Morris' PB Actions HTS' Work and HTS' Conclusions Hicks' HTS Actions Beca's Work, Beca's NSBT Capacity Findings and Hicks' Beca Actions Beca's Work Beca's NSBT Capacity Findings Hicks' Beca Actions

4 Part A. Contents, definitions and document identification numbers Hicks' Financier and Investors Actions Registration of Non-Tolling RCM Proceedings Applicants as RCM SPVs by Sponsor Clients 'Shadow' directors and officers of Non-Tolling RCM Proceedings Applicants NSBT Traffic Forecast Facts Peter Hicks' knowledge of NSBT Traffic Forecast Facts Robert Morris' knowledge of NSBT Traffic Forecast Facts Charles Mott's knowledge of NSBT Traffic Forecast Facts Malcolm Coleman's knowledge of NSBT Traffic Forecast Facts NSBT Project Bid Revised NSBT Project Bid Award of NSBT Concession NSBT Project Funding PDS Disclosure Obligation Mallesons' RCM IPO Actions RCM IPO DDC RCM IPO TDDSC RCM Documents Instruction to prepare Summary Letter summarising Base Case RCM PDS Action Hicks' First PDS Confirmation Hicks' Second PDS Confirmation Beca's PDS Summary Report Summary Letter and RCM Trusts Indemnity Mallesons' Traffic Forecast Facts Hicks' Third PDS Confirmation PDS issue NSBT opening PART C. DEFENCE Preliminary RiverCity Motorway Group

5 Part A. Contents, definitions and document identification numbers NSBT PDS Alleged issue of RCM Stapled Units to Applicants AECOM Australia's Earlier EIS Forecasts The allegation that the Consented Material contained misleading or deceptive statements Forecasts Actual traffic Alleged misleading or deceptive Forecasts Alleged further misleading or deceptive statements in Consented Material Alleged omissions from the Consented Material Alleged Contraventions by AECOM Australia Alleged contraventions by RCMML and RCM Services Alleged negligence by AECOM Australia PART D. AECOM AUSTRALIA'S APPORTIONMENT DEFENCES Introduction AECOM Australia's Apportionment Defence - NIEIR Applicants' NIEIR Allegations NIEIR's Brisbane Forecast Duties of Care NIEIR's Brisbane Forecast Representations NIEIR's Brisbane Forecast Negligence and NIEIR's Brisbane Forecast Misrepresentations AECOM Australia's Apportionment Defence - Peter Hicks Hicks' PDS Duties of Care Hicks' PDS Representations Hicks' PDS involvement, Hicks' PDS Breaches of Duty and Hicks' PDS Misrepresentations AECOM Australia's Apportionment Defence - Sponsor Clients Sponsor Clients' PDS Duties of Care Sponsor Clients' PDS Representations Vicarious Liability Sponsor Clients' PDS involvement, Sponsor Clients' PDS Breaches of Duty and Sponsor Clients' PDS Misrepresentations AECOM Australia's Apportionment Defence - RCM Services and RCMML The RCM Respondent Companies RCM Respondent Companies Duties of Care AECOM Australia's Apportionment Defence - Beca Applicants' Beca Allegations Beca's PDS involvement Beca's PDS Duties of Care Beca's PDS Representations Beca's PDS involvement and Beca's PDS Negligence

6 Part A. Contents, definitions and document identification numbers AECOM Australia's Apportionment Defence - Mallesons Applicants' Mallesons Allegations Mallesons' PDS involvement Mallesons' PDS Duties of Care Mallesons' PDS Representations Mallesons' PDS involvement and Mallesons' PDS Negligence

7 Part A. Contents, definitions and document identification numbers Definitions A. In this Amended Defence to the Second Further Amended Statement of Claim (Third Fourth Further Amended Defence) (T4FAD) terms are as defined in the allegations made below or, otherwise, have the meanings defined in the Second Further Amended Statement of Claim (SFASOC). B. The First Respondent, AECOM Australia Pty Limited (AECOM Australia), does not make any admissions by the use of a defined term in this TFAD4FAD, including where the defined term is the same as, or similar to, a defined term used in the SFASOC. Document identification numbers C. Document identification numbers are used in this TFAD4FAD for convenience only. They do not form part of this response by AECOM Australia to the SFASOC and are not admissions by AECOM Australia that the identified version of the document is either the only version of that document or the only version which may be relied upon at any trial. 6

8 Part B. North-South Bypass Tunnel Dramatis personae Leighton 1. Leighton Contractors Pty Ltd (Leighton): (c) is, and was at all material times, an Australian proprietary company, limited by shares, registered in New South Wales on 28 April 1971, formerly known as Leighton Construction Pty Limited and is able to be sued; [there is no sub-paragraph ]; [there is no sub-paragraph (c)]; (d) prior to all material times, and by no later than April 2005: had been involved in the design and construction of, or construction works in relation to, at least the Inner City Bypass and the Pacific Motorway, both located in Brisbane, Queensland; and had prepared and made bids, either in its own right or as part of a consortium and either directly or through special purpose vehicles, in respect of at least the Eastern Distributor (ED), the Sydney Harbour Tunnel (SHT), the Western Orbital Motorway (M7), the Lane Cove Tunnel (LCT), the Mitcham Frankston Motorway (MFM) and the Cross City Tunnel (CCT) and was the successful bidder, either in its own right or as part of a consortium and either directly or through special purpose vehicles, in respect of, at least the M7 (the Prior Leighton Toll Road Projects); and (e) (f) in the course of at least the Prior Leighton Toll Road Projects, had developed, by no later than April 2005, and at all material times had, specialist skills and expertise in, and knowledge and an understanding of, all, or all material, aspects of the development of major toll road infrastructure projects, the commissioning, co-ordinating and providing of instructions in respect of, and input into or in connection with the preparation of traffic forecasts, reporting on those forecasts, the preparation of financial models, the submission of bids in competitive tenders and the raising of debt and equity to fund those projects (that expertise, knowledge and understanding is hereinafter referred to as Toll Road Expertise); and further to sub-paragraph (e) above, in the course of at least the Prior Leighton Toll Road Projects, had developed, by no later than April 2005, and at all material times had, as a "core competency", expertise in, and knowledge and an understanding of, toll road patronage risk and the following facts, matters, assumptions, inputs, factors, judgements, issues, risks and uncertainties involved in traffic forecasting, and, or in the alternative, in reporting on traffic forecasts: the different scenarios and bases upon which, and the different purposes for which, traffic forecasts can be commissioned and prepared; further to sub-paragraph above, that different traffic forecasts in respect of the same project could, and would, or likely would, be commissioned and, or in the alternative, prepared, depending upon whether the forecast was to be made on the basis of, or for: 7

9 (A) (B) (C) (D) (E) (F) (G) (H) (I) a worst case scenario; a realistic scenario; an optimistic scenario; governments; project sponsors, including project sponsors with other relevant roles or financial or other interests in a successful bid and, or in the alternative, project (such as principal construction contractor, debt arranger and, or in the alternative, equity underwriter); lenders; institutional or wholesale equity investors; retail equity investors; or in order to win a tender; (iii) (iv) (v) (vi) (vii) (viii) (ix) that traffic volumes may not grow at the rate and, or in the alternative, the times projected; that traffic forecasters cannot guarantee that all, or necessarily any, estimates and assumptions upon which traffic forecasts are based will, in fact, be correct or accurate or that projected future traffic volumes or other project outcomes will be achieved; that traffic forecasting and traffic forecasts are subject to obvious risks, inherent risks and intrinsic uncertainties, especially in respect of what is, or is believed to be, a large and rapidly growing city; that traffic volumes on a future road network of a large and rapidly growing city depend upon many factors; further to sub-paragraph (vi) above, that traffic volumes on a future road network of a large and rapidly growing city depend upon future population and employment demographics, traffic and congestion levels on the road network and future changes to the city and its road network; that the types of, and basis for, the forecasts commissioned, the purpose(s) for which the forecasts were to be used, and the instructions given in relation to, and the time and budget allowed for, the commission, are all material to the content of traffic forecasts; that traffic forecasting: (A) (B) (C) necessarily relies upon a complex set of data inputs and assumptions; is otherwise complex; and is not a precise science; (x) the choices and judgements to be made in traffic forecasting as to data inputs and assumptions or, in the alternative, material data inputs and assumptions; 8

10 (xi) that each of the following are steps, assumptions and other inputs in the traffic modelling process and methodology from and by which traffic forecasts are usually derived: (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K) (L) (M) (N) (O) (P) traffic count and journey time surveys; stated and revealed preference or other consumer surveys; estimates of road trips taken; assumptions as to trip purposes; estimates and assumptions pertaining to economic conditions, population growth, employment, land use and regional economic development; estimates and forecasts of trip origins and trip destinations and their distributions; data assessment; assumptions as to the perceived benefits and drawbacks of different routes and driver response to tolls under different travel time scenarios and different traffic and travel cost conditions; assumptions as to network speeds and capacity; toll model development; trip assignment; model calibration and validation; daily expansion factors used to estimate annual average weekday traffic (AAWT) by reference to actual or estimated average traffic volumes for specific period(s) within that day (Expansion Factors); weekday to year annualisation factors used to estimate annual average daily traffic by reference to actual or estimated AAWT (Annualisation Factors); base and future year estimates of traffic and travel time; and assumptions in relation to government and council plans for roadwork development; (xii) (xiii) that current population, population growth or decline, employment, land use, the nature and locations of population and employment opportunities and other sources or attractors of traffic, economic development and trip generation assumptions and forecasts are, or usually are, relevant to, and can have a significant effect upon, growth estimates and forecast future traffic volumes; that actual future traffic volumes would, or could, be affected, both directly and indirectly, by numerous factors, many of which were external and unable to be controlled or predicted by either the traffic forecaster or the traffic forecaster's client(s) when providing instructions, assumptions and, or in the alternative, inputs to the traffic forecasting process; 9

11 (xiv) that the following factors could affect actual future traffic volumes, both directly and indirectly: (A) (B) (C) (D) (E) (F) (G) (H) (I) (J) (K) (L) (M) (N) (O) (P) (Q) (R) (S) (T) (U) economic developments; demographic and economic conditions, inflation, movements in the consumer price index, population growth, interest rates and taxation; the pace, nature and locations of population, employment or economic growth (or decline) in relevant area(s); industrial and residential shifts in the area(s) that the proposed road would, or might, service; general traffic levels in the relevant area(s) and on routes to and from the proposed road; future network changes; any failure to make anticipated or assumed network changes; the planned and possible future capacity of the proposed road and the relevant surrounding network; the occurrence and timing of other relevant or potentially relevant road projects; problems which might be experienced in integrating the new road(s) into the road network; the fact, or possibility, of additional and, or in the alternative, unexpected roadway alternatives; the quality and proximity of alternative roads and other transport infrastructure; changing travel patterns and habits; toll rates (if applicable); the penetration of e-tolls into the marketplace (if applicable); drivers' willingness to pay tolls (if applicable); whether the benefits offered by the proposed road (including travel time savings) were considered by drivers to be worth any toll payment; the correlation between speed of travel and traffic volumes at relevant points in time; traffic levels and congestion in the relevant areas and on routes to and from the new road; the capacity of the new road and its feeder and competing roads; and, or in the alternative, traffic demand variability at different times of the day, week and year; 10

12 (xv) (xvi) (xvii) (xviii) (xix) (xx) (xxi) (xxii) (xxiii) the choices and judgements that typically must be made as to the matters set out in sub-paragraph (xiv) above; that unanticipated, materially lower consumer confidence and, or in the alternative, disposable incomes and, or in the alternative, a sudden, sharp, material and enduring decline in consumer spending would, or could, have a material and compounding, adverse effect on actual traffic compared to forecast traffic; that an unanticipated recession or material local, national or global economic downturn(s) or crises would, or could, have a material and compounding adverse effect on actual traffic compared with forecast traffic; that an abnormal level of growth and, or in the alternative, abnormal volatility in fuel prices would, or may, have an adverse effect on actual traffic compared to forecast traffic; that the proximity and quality of alternative roads and competing transport infrastructure was relevant to, and would impact upon, actual traffic volumes; that existing and future government plans and policies would, or may, have an adverse effect on actual traffic compared to forecast traffic; that materially increased public transport usage (in absolute terms and, or in the alternative, relative to private vehicle usage), would have a material and compounding adverse effect on actual traffic compared to forecast traffic; that material and, or in the alternative, significant adverse changes in network configuration compared to forecast network configuration would have a material and compounding adverse effect on actual traffic compared to forecast traffic; that a strong and widespread reluctance, or material decline, in driver willingness to pay tolls would have a material adverse effect on actual traffic compared to forecast traffic; (xxiv) that unanticipated material declines in driver capacity to pay tolls would, or may, have a material adverse effect on actual traffic compared to forecast traffic; (xxv) that unanticipated lower network congestion would have an adverse and compounding effect on actual traffic compared to forecast traffic; (xxvi) that anticipated or possible rate of future improvements in vehicle technology were material factors relevant to the assessment of road capacity; (xxvii) the choices and judgements to be made as to possible rates of future improvements in vehicle technology insofar as relevant to capacity; (xxviii) the relevance of reliable historical traffic data and the common applications and limitations of that data; (xxix) the choices and judgements to be made as to what new or additional traffic surveys or traffic counts (if any) could, or should, be undertaken; 11

13 (xxx) the available choices as between, and the advantages and disadvantages of, forecasting traffic by reference to traffic volumes in a weekday morning peak hour period (AM Peak) or, instead, by reference to weekday all-hour or other multi-periods and the judgements to be made in relation thereto; (xxxi) the uncertainties, risks and, or in the alternative, consequences of choosing to base traffic forecasts upon AM Peak traffic volumes, rather than all-hour or other multi-period traffic volumes; (xxxii) the resultant need to use Expansion Factors to forecast future AAWT; (xxxiii) the choices and judgements to be made as to the use, and impact of, and the uncertainties and risks involved in using, Expansion Factors; (xxxiv) why and how Expansion Factors are chosen and used; (xxxv) the choices and judgements to be made as to the use, and impact of, and the uncertainties and risks involved in using, Annualisation Factors; (xxxvi) why and how Annualisation Factors are chosen and used; (xxxvii) the inherent limitations in using data regarding other roads as a point of comparison and guidance for forecasting future traffic volumes; (xxxviii) the choices and judgements to be made, the uncertainties involved in, and the inherent limitations of, trip generation estimation; (xxxix) the choices and judgements to be made in respect of, the uncertainties involved in, and the inherent limitations of, assumptions inputs regarding trip purpose; (xl) (xli) (xlii) (xliii) (xliv) (xlv) (xlvi) the choices and judgements to be made in respect of, the uncertainties involved in, and the inherent limitations of, toll choice and route predictions; the relevance, correlation and impact of network congestion, speed of travel, travel time savings, traffic volumes and driver willingness to pay any tolls to, and upon, forecast traffic volumes; the relevance and impact of perceived and actual driver willingness to pay, and perceived and actual driver understanding and perception of the cost and value, of tolls; the impact of any inherent or other features of a toll road on the perceived and actual driver willingness to pay, and perceived and actual driver understanding and perception of the cost and value, of tolls, both as an absolute and compared to alternative roads; the choices and judgements to be made regarding the matters set out in sub-paragraphs (xlii) and (xliii) above and the assumptions and inputs used as a consequence thereof; the choices and judgements to be made in respect of, the uncertainties involved in, and the inherent limitations of, using behavioural surveys to understand driver preferences in relation to proposed roads and alternative routes; the choices and judgements to be made in respect of issues relating to actual, perceived, negative and other travel time savings; 12

14 (xlvii) that uncertainties and risks inevitably increase as the forecast period lengthens; (xlviii) that materially lower than assumed, or forecast, population, population growth, employment, land use, economic development and, or in the alternative, trip generation would, or may, have a material and compounding adverse effect on actual traffic compared to that forecast traffic; (xlix) (l) (li) that material variation in the location of assumed, or forecast, population, population growth, employment, land use, economic development and, or in the alternative, trip generation would, or may, have a material and compounding adverse effect on actual traffic compared to forecast traffic; that traffic forecasters are not or, in the alternative at least typically are not, themselves expert in estimating or forecasting population, population growth, employment, land use and economic development and do, or usually, need to rely on third party experts in one or more of those fields for those estimates and forecasts; that there are obvious and inherent risks that actual future traffic volumes will be below forecast, through no fault of the traffic forecaster, if: (A) (B) (C) (D) (E) (F) (G) estimates and forecasts proved to be inaccurate either because actual economic growth was lower and, or in the alternative, slower than assumed or forecast, generally or in zones of particular relevance to the proposed road; actual population and, or in the alternative, actual population growth was different than assumed, estimated or forecast in estimates and forecasts, generally or in zones of particular relevance to the proposed road; actual employment and, or in the alternative, actual employment growth was lower than assumed, estimated or forecast in estimates and forecasts, generally or in zones of particular relevance to the proposed road; there were unanticipated increases in actual unemployment which were not forecast or taken into account in estimates and forecasts, generally or in zones of particular relevance to the proposed road; actual wages and, or in the alternative, actual wages growth, was lower than was assumed, estimated or forecast in those estimates and forecasts, either generally or in zones of particular relevance to the proposed road; unplanned or unexpected changes in public transport policy negatively impacted trip matrices produced for the traffic forecasts by making public transport more attractive; and, or in the alternative, trip generation was lower than was assumed, estimated or forecast in those estimates and forecasts, either generally or in zones of particular relevance to the proposed road; (lii) that actual future traffic volumes would be lower, and a project would or may prove to be unsuccessful, or financially disastrous, through no fault of 13

15 the traffic forecaster, if one or more of the events set out in sub-paragraph (li) above occurred to a significant extent; (liii) (liv) (lv) (lvi) (lvii) (lviii) (lix) the choices, judgements and assumptions to be made in respect of, and the nature, extent, content, scope, context and limitations of, revealed preference and stated preference surveys; the limitations of making comparisons with existing toll or other roads; that there are obvious and inherent risks that a project may prove to be unsuccessful, or financially disastrous if there were adverse external developments, where these developments were not reasonably capable of being predicted by the traffic forecaster at the time or were matters the forecaster was not required to assume, or predict, within the context of their commission; the scope, state, limitations and effect of the material risks that would, or might, materially affect the accuracy of a traffic forecast; the extent to which the assumptions and inputs used to derive traffic forecasts are, or are capable of being reasonably regarded as, conservative or reasonable; the types of explanations, disclosures, qualifications, exclusions, disclaimers and other limitations typically or commonly contained in a traffic forecaster's report in respect of a proposed major new toll road; and the inherent complexities involved in such traffic reports, (that expertise, knowledge and understanding is hereinafter referred to as Traffic Forecasting Expertise). Particulars 1. Schedule A. Details of Respondents/Participants. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 2. Schedule D.3 Commercial Issues. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 3. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, Leighton. ABN AMRO 2. RBS Group (Australia) Pty Limited (formerly ABN AMRO Australia Limited) (ABN AMRO): is, and was at all material times, an Australian proprietary company, limited by shares, registered in New South Wales on 7 January 1971, and is able to be sued; [there is no sub-paragraph ]; 14

16 (c) [there is no sub-paragraph (c)]; and (d) prior to all material times, and by no later than April 2005: had prepared and made, or advised in respect of, bids, either in its own right or as part of a consortium, and either directly or through special purpose vehicles, in respect of at least the M7, the LCT, the MFM and the CCT and was the successful bidder, either in its own right or as part of a consortium and either directly or through special purpose vehicles, in respect of, at least the LCT and the MFM (Prior ABN AMRO Toll Road Projects); and in the course of at least the Prior ABN AMRO Toll Road Projects, had developed, and at all material times had, as a "core competency", expertise in, and knowledge and an understanding of, toll road patronage risk and both Toll Road Expertise and Traffic Forecasting Expertise. Particulars 1. Schedule A. Details of Respondents/Participants. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 2. Schedule D.3 Commercial Issues. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 3. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, Leighton, and or, in the alternative, ABN AMRO. Baulderstone 3. Lend Lease Building Contractors Pty Limited (formerly, Baulderstone Pty Limited and Baulderstone Hornibrook Pty Limited) (Baulderstone): (c) is and was at all material times an Australian proprietary company, limited by shares, registered in New South Wales on 8 June 1983, and is able to be sued; [there is no sub-paragraph ]; [there is no sub-paragraph (c)]; and (d) prior to all material times, and by no later than April 2005: had prepared and made bids, either in its own right or as part of a consortium, and either directly or through special purpose vehicles, in respect of at least the M7, the LCT, the MFM and the CCT and was the successful bidder, either in its own right or as part of a consortium and either directly or through special purpose vehicles, in respect of, at least the CCT (Prior Baulderstone Toll Road Projects); and in the course of at least the Prior Baulderstone Toll Road Projects, had developed, and at all material times had, as a "core competency", expertise in, and knowledge and an understanding of, toll road patronage risk and both Toll Road Expertise and Traffic Forecasting Expertise. 15

17 Particulars 1. Schedule A. Details of Respondents/Participants. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 2. Schedule D.3 Commercial Issues. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 3. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, Leighton, and or, in the alternative, ABN AMRO and, or in the alternative, Baulderstone. Bilfinger 4. Bilfinger Re Asset Management Project Investments Australia Pty Limited (formerly, Bilfinger Berger Project Investments Pty Limited and Bilfinger Berger Concessions Pty Limited) (Bilfinger): (c) is, and was at all material times, an Australian proprietary company, limited by shares, registered in New South Wales on 18 March 1992 and is able to be sued; [there is no sub-paragraph ]; [there is no sub-paragraph (c)]; and (d) prior to all material times, and by no later than April 2005: had prepared and made bids, either in its own right or as part of a consortium and either directly or through special purpose vehicles, in respect of at least the M7, the LCT and the CCT and was the successful bidder, either in its own right or as part of a consortium and either directly or through special purpose vehicles, in respect of, at least the CCT (Prior Bilfinger Toll Road Projects); and in the course of at least the Prior Bilfinger Toll Road Projects, had developed and, at all material times had, as a "core competency", expertise in, and knowledge and an understanding of, toll road patronage risk and both Toll Road Expertise and Traffic Forecasting Expertise. Particulars 1. Schedule A. Details of Respondents/Participants. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 2. Schedule D.3 Commercial Issues. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 3. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, Leighton, and or, in the alternative, ABN AMRO and, or in the alternative, Baulderstone and, or in the alternative, Bilfinger. 16

18 Sponsor Clients 5. By no later than in or about April 2005, and at all material times thereafter, Leighton, ABN AMRO, Baulderstone and Bilfinger (the Sponsor Clients), acting together as an unincorporated joint venture, had, between them, agreed and determined to: prepare and cause a bid (an NSBT Project Bid) to be submitted to the Brisbane City Council (BCC) to finance, design, construct and operate the 'North-South Bypass Tunnel' (also known as the CLEM 7 Tunnel or the RiverCity Motorway) (the NSBT) in Brisbane, Queensland (the NSBT Project); and utilise special purpose project companies (RCM SPVs), which the Sponsor Clients would cause to be registered from time to time for those purposes, to, between them: (iii) submit an NSBT Project Bid; hold the concession to undertake and complete the NSBT Project and operate the NSBT (the NSBT Concession) if the NSBT Project Bid succeeded; and if they were awarded the NSBT Concession: (A) (B) (C) raise debt required to undertake and complete the NSBT Project and operate the NSBT; raise equity required to undertake and complete the NSBT Project and operate the NSBT through a public offering of securities (an RCM IPO); and undertake and complete the NSBT Project, (the Joint RCM Plan). Particulars The Joint RCM Plan is identified in the following documents: 1. North South Bypass Tunnel - Position Paper prepared on or about 12 April 2005 [RCG ]. 2. Executive Summary North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 3. Schedule A. Details of Respondents/Participants. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 4. Schedule D.3 Commercial Issues. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 5. Schedule D.4 Commitment to Procurement Process. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 6. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored 17

19 on servers maintained by, or for and on behalf of, the Sponsor Clients or, in the alternative, ABN AMRO, in the course of the NSBT Project. 6. By no later than in or about April 2005, and at all material times thereafter, as part of, and in furtherance of, the Joint RCM Plan: (c) (d) Leighton had agreed with the other Sponsor Clients to be, and ultimately became, an equity underwriter of the NSBT Project Bid (either directly or via a related company) and, in a joint venture with Baulderstone, the design and construct contractor and operations and maintenance contractor for the NSBT Project if and when the NSBT Project Bid succeeded; ABN AMRO had agreed with the other Sponsor Clients to be, and ultimately became, an equity underwriter and underwriter financial adviser, construction and term debt arranger and underwriter for the NSBT Project Bid and the NSBT Project; Baulderstone had agreed with the other Sponsor Clients to be, and ultimately became, an equity underwriter for the NSBT Project Bid (either directly or via a related company) and, in a joint venture with Leighton, the design and construct contractor and operations and maintenance contractor for the NSBT Project if and when the NSBT Project Bid succeeded; and Bilfinger had agreed with the other Sponsor Clients to be, and ultimately became, an equity underwriter for the NSBT Project Bid (either directly or via a related company). Particulars 1. North South Bypass Tunnel - Position Paper prepared on or about 12 April 2005 [RCG ]. 2. Executive Summary North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 3. Schedule A. Details of Respondents/Participants. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 4. Schedule D.3 Commercial Issues. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 5. Schedule D.4 Commitment to Procurement Process. North-South Tunnell [sic]. Response to Invitation for Expression of Interest [RCG ]. 6. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, the Sponsor Clients or, in the alternative, ABN AMRO, in the course of the NSBT Project. RCM SPVs 7. Between October and December 2005, the Sponsor Clients caused each of the following companies (together, the RCM Group) to be registered as RCM SPVs in furtherance of the Joint RCM Plan: 18

20 (c) RiverCity Motorway Pty Limited (RCM Operations) was registered on 14 October 2005; RCM Services, RiverCity Motorway Asset Nominee Pty Limited (RCM Asset), RiverCity Motorway Finance Pty Limited (RCM Finance) and RiverCity Motorway Construction Pty Limited (RCM Construction) were each registered on 15 November 2005; RiverCity Motorway Holdings Pty Limited (RCM Operations 2) was registered on 24 November 2005; (d) RiverCity Motorway Management Limited (RCMML) was registered on 29 November 2005; and (e) RiverCity Motorway Asset Nominee 2 Pty Limited (RCM Asset 2) was registered on 2 December Flow Tolling Pty Limited (Flow Tolling) was subsequently registered as an RCM SPV on 16 January 2009 in furtherance of the Joint RCM Plan. 9. In the remainder of this TFAD4FAD: (c) (d) (e) each of the Sponsor Clients and each member of the RCM Group (once registered), operating together as an unincorporated joint venture in furtherance of the Joint RCM Plan, are collectively referred to as the RCM Consortium; the members of the RCM Group other than RCMML are collectively referred to as Non-Tolling RCM Proceedings Applicants; the Non-Tolling RCM Proceedings Applicants and Flow Tolling are collectively referred to as the RCM Proceedings Applicants; a reference to a person or company 'acting for' one or more other person(s) or company(ies) is a reference to that person or company 'acting for and on behalf of and, or in the alternative, for the benefit of', that other person or company; and a reference to a RCM SPV is a reference to that RCM SPV once registered. AECOM Australia 10. In or about early April 2005: the Sponsor Clients, both on their own behalf and acting for each yet-to-be registered RCM SPV, engaged AECOM Australia (AECOM Australia's NSBT Commission) to provide professional traffic forecasting services (AECOM Australia's NSBT Work) in connection with the NSBT Project; and the Sponsor Clients, both on their own behalf and acting for each yet-to-be registered RCM SPV, and AECOM Australia agreed that they would subsequently enter into a written contract which would govern AECOM Australia's NSBT Commission. 11. AECOM Australia and the Sponsor Clients, both on their own behalf and acting for each yet-to-be registered RCM SPV, subsequently agreed that AECOM Australia's NSBT Commission would be governed by the terms of a written agreement dated 4 April 2005 (the Original NSBT Consultancy Agreement). 19

21 Particulars The Original NSBT Consultancy Agreement [ACM ] is in writing, dated 4 April 2005, and was executed on or about 14 July AECOM Australia will refer to the terms of the Original NSBT Consultancy Agreement at any trial as if they are set out in full herein. 12. The Original NSBT Consultancy Agreement was entered into, or purportedly entered into, by the Sponsor Clients on their own behalf and acting for RCM SPV entities which became the RCM Group and Flow Tolling, and, in the premises, was a pre-registration contract within the meaning of section 131 of the Corporations Act 2001 (Cth) (the Corporations Act). 13. By or under the Original NSBT Consultancy Agreement: AECOM Australia was required to: use its best endeavours to complete the Services as defined (the Services) (clause 5); and exercise the same degree of skill, care and diligence normally exercised by members of the relevant profession performing services of a similar nature to the Services (clause 5); (c) (d) (e) (f) (g) (h) the Services were to be provided, and the "Brisbane North South Bypass Tunnel Traffic and Transport Analyses Project Outputs", as defined, were to be prepared, by AECOM Australia acting for the Sponsor Clients and any RCM SPV which submitted a NSBT Project Bid and was awarded the NSBT Concession and any RCM SPV which was a related body corporate or affiliate of any such RCM SPV(s) (Special Condition clause 1.1); all information, documents and other particulars relating to the requirements of the RCM Consortium in respect of traffic forecasting for the NSBT and the NSBT Project would be made available to AECOM Australia as soon as practicable (clause 6); AECOM Australia was entitled to timely written directions, instructions, decisions and information sufficient to, amongst other things, facilitate the provision of the Services by AECOM Australia (clause 6(c)); where the RCM Consortium was to provide specific services in relation to the NSBT Project, "whether by gathering and providing information or organising, supervising and controlling activities or information or the like" the RCM Consortium was to provide such services to satisfy the requirements of the NSBT Project (clause 6(f)); Peter Hicks had authority to act for the RCM Consortium and Flow Tolling for all purposes in connection with, the NSBT Project and in accordance with all provisions of the Original NSBT Consultancy Agreement, subject only to relevant legislation and administrative procedures (clause 8); AECOM Australia's liability arising out of the performance of the Services was limited to those damages which are directly caused by any negligent act, error or omission by AECOM Australia in carrying out the Services (clause 12.1); the maximum liability of AECOM Australia arising out of the performance or nonperformance of the Services, whether under the law of contract, tort, breach of statutory duty or otherwise, was further limited to $5 million, unless AECOM 20

22 Australia's liability was a result of AECOM Australia's recklessness, wilful misconduct, gross negligence, bad faith or fraud (the Liability Cap) (clause 12.2 and the Annexure to the General Conditions of Engagement, as amended by the Special Conditions); (j) (k) the Liability Cap was to be further reduced to such sum as AECOM Australia ought reasonably pay on the basis that all other parties providing design, management or financial services for the NSBT Project or any part thereof were deemed to have paid such contribution which it would be just and equitable for them to pay having regard to the extent of their responsibility for any loss or damage (clause 12.2); AECOM Australia shall be deemed to have been discharged from all liability in respect of the Services, whether under the law of contract, tort or otherwise, 24 months after completion of the Services (the Original Claims Discharge Date) (clause 12.3); and anyone relying on information provided by AECOM Australia shall accept full responsibility and shall hold AECOM Australia harmless for the impacts on the traffic forecasts or the earnings from the NSBT arising from changes in external factors such as changes in government policy on pricing of fuels, road pricing generally, alternate modes of transport or construction of other means of transport, the behaviour of competitors or changes in the owner's policy affecting the operation of the project (Special Condition 1.6). 14. In or about June 2005, the Original NSBT Consultancy Agreement was amended, by mutual agreement between AECOM Australia and the Sponsor Clients, on their own behalf and acting for each yet-to-be registered RCM SPV, so that, for the entire term of the NSBT Concession, the analysis, advice, assumptions and forecasts, of population, population growth, employment, land use, economic indicators, economic development, trip generation and distribution of origins and destinations of various relevant journey types, analysis of and inputs into value of time modelling and estimates of toll diversion, analysis of market capture and traffic growth on NSBT feeder and competing routes and relevant sensitivity testing thereof, which were required as material inputs into AECOM Australia's modelling of future NSBT traffic volumes, would be obtained by the RCM Consortium from National Institute of Economics and Industry Research Pty Limited (NIEIR) for its use, and for use by AECOM Australia, rather than by AECOM Australia retaining NIEIR as a subcontractor to AECOM Australia, as originally contemplated by the Original NSBT Consultancy Agreement (the NIEIR Amendment). Particulars 1. dated 17 May 2005 from Peter Hicks to Alan Broadbent and others for and on behalf of AECOM Australia, Dr Craig Shepherd, for and on behalf of NIEIR, Ben Cooper and others [ACM ], with attachment being a proposal from NIEIR in relation to the NSBT Project created on or about 17 May 2005, [ACM ]. 2. Letter from Dr Craig Shepherd, for and on behalf of NIEIR, to the Sponsors dated 30 June 2005, [NIR ]. 3. from Thao Oakey to Dr Craig Shepherd sent at 2.45pm on 30 June 2005 entitled NIEIR mandate letter, [NIR ] with attachment [NIR ]. 4. NIEIR Technical Note on 2004v2.doc, [ACM ]. 21

23 NIEIR BSTM Run3.xls, [ACM ]. Part B. North-South Bypass Tunnel 6. Debt and Equity rd Aug CS Deliver. xls, [ACM ]. 7. AM Peak City and RiverCrossings.xls, [ACM ]. 8. Revision Debt 2011 CS 5 Sept.xls, [ACM ] and 2026 CS 9 Sept.xls, [ACM ] NIEIRBSTMRun2.xls, [ACM ] _te.xls, [ACM ]. 12. Revision TE LU 2011 CS 5th Sept.xls, [ACM ]. 13. NIEIR Technical Note 2005.doc, [ACM ]. 14. Invoices from NIEIR to RiverCity Motorway dated 7 September 2005 (x3), [NIR ], [NIR ] and [NIR ], dated 11 November 2005 [NIR ], and dated 21 December 2006, [NIR ]. 15. Letter dated 10 May 2006, from Dr Peter Brain, for and on behalf of NIEIR, to Peter Hicks, [ACM ]. 16. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, the Sponsor Clients or, in the alternative, ABN AMRO, in the course of the NSBT Project. 15. The Original NSBT Consultancy Agreement, as amended by the NIEIR Amendment, was subsequently further amended by written agreement entered into on 31 July 2006 (the Claims Discharge Date Amendment Agreement), whereby the time period after which AECOM Australia was deemed to have been discharged from all liability in respect of the Services was extended, from the Original Claims Discharge Date, to 24 months after the NSBT opened which, in the events which occurred, is 16 March 2012, NIEIR 16. NIEIR: (hereafter, unless the context requires otherwise, a reference to AECOM Australia's Contract means the Original NSBT Consultancy Agreement as amended by the NIEIR Amendment and the Claims Discharge Date Amendment Agreement). (c) (d) is, and was at all material times, a corporation duly incorporated in Victoria and is able to be sued; is, and was at all material times, a corporation within the meaning of section 4 of the Trade Practices Act 1974 (Cth) (TPA); at all material times supplied goods and services in the course of trade and commerce within the meaning of the TPA; and at all material times carried on business in Australia as a forecaster of population, population growth, employment, land use and economic development and trip generation. 22

24 17. At all material times NIEIR was or had (as the case may be): Part B. North-South Bypass Tunnel (c) (d) (e) (f) (g) (h) (j) a private economic research and consulting company serving clients in the public and private sectors; extensive expertise in working on infrastructure projects, including toll road infrastructure projects, throughout Australia from 2000 to 2005; a leading economic forecaster; been retained by the BCC for previous infrastructure forecasting project work; a company with expertise within its staff in relation to data sets and econometric analyses available for application to client needs; the operator of a range of effective forecasting and analysis tools; able to provide the services of two leading consultant economists, Dr Craig Shepherd and Dr Peter Brain; a company with expertise in land use and development trends in Brisbane; expertise in the application of significant growth rates representing the value of time, which might be relevant to the NSBT; and a company with extensive expertise in the retail sector, including the assessment of traffic and travel times on centre behaviour, which would be important in base year calibration of those trip types for the NSBT, (NIEIR's Expertise). 18. On or about 30 June 2005, Leighton, acting for the Sponsor Clients and the yet-to-be registered RCM SPVs, engaged NIEIR (NIEIR's Engagement) to: develop forecasts which predicted Brisbane traffic growth after 2005 by reference to geographically defined travel zones and, or in the alternative, forecasts which were reasonably suitable and appropriate for use by AECOM Australia as material inputs into AECOM Australia's modelling of forecast future NSBT traffic volumes after 2005, in respect of two different scenarios required for debt and equity markets (the Two Traffic Forecast Scenarios), being: a "low" or "bank" scenario, developed primarily for consideration by the debt markets and to be based upon what NIEIR regarded as conservative economic growth modelling (the Bank Case); and a "base" scenario, to be developed primarily for consideration by the RCM Consortium and equity investors in the RCM Group, using economic growth assumptions which NIEIR regarded as consistent with a strongly performing domestic and international economy (the Base Case), (together, NIEIR's Growth Forecasts); and provide those NIEIR's Growth Forecasts to, or for the benefit of, each of the Sponsor Clients and the RCM Group and Flow Tolling (as RCM SPVs), and to AECOM Australia, to enable the RCM Consortium and AECOM Australia to forecast future NSBT traffic volumes. 23