KordaMentha KordaMentha is an Australian advisory and investment firm that provides specialist forensic, real estate, turnaround / restructuring and investment management services. The business was formed in April 2002 by Mark Korda and Mark Mentha. Located at
Level 24, 333 Collins Street, Victoria, Australia.
Phone: +61 3 8623 3333
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Publications


July 2014

The World Cup - Germany wins, as predicted!

With the final of the World Cup having been played this morning, Germany proved too strong for Argentina and deservedly won the World Cup! As well as the eventual winner, our prediction back in June picked three of the four semi-finalists.

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July 2014

Mirabela Nickel Limited - An Australian first: Changing the dynamics of corporate restructuring

Mirabela Nickel Limited has just undergone an Australian first in terms of restructuring through insolvency. This publication provides a high-level overview of the restructure of Mirabela Nickel Limited, the use of section 444GA of the Corporations Act and its context in the Australian restructuring industry.

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June 2014

The World Cup

The World Cup is just around the corner, with 32 teams meeting in Brazil for the world’s most watched sporting event. Will the home nation win as expected? Or can one of the big European sides come out on top? Will England lose on penalties (again)? And just how outmatched will the Aussies be? All these questions will be answered over the coming month, but, for now, KordaMentha’s data analytics team have crunched the numbers to give you our predictions and insights for the cup.

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May 2014

Business model innovation - Part 4
Game-changing the future

Over the course of three papers we have identified the need for Australia to innovate, addressed the question ‘what is innovation?’, and examined the emerging technologies and consumer trends that are enabling business model innovation. Understanding innovation and implementing it are two very different things. .

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May 2014

Forensic Matters: Business valuers - new accreditation and guidance

There has been no list in Australia to allow lawyers, barristers and other engaging parties to search for recognised business valuers - until now. .

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May 2014

Business model innovation - Part 3 -
Game-changing the future

In the second paper of our four part series on business model innovation we addressed the question ‘what is innovation?’ and introduced the Business Model Canvas – a template for identifying the drivers of value and innovation within a business. In this paper (Part Three) we look at the emerging technologies and consumer trends that are enabling business model innovation.

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May 2014

Business model innovation - Part 2 -
Understanding innovation

In the first paper of our four part series on business model innovation we looked at the need for Australia to innovate in order to address an underlying decline in productivity. In this paper (Part Two) we address the question ‘what is innovation’ and introduce the Business Model Canvas – a template for identifying the drivers of value and innovation within a business. .

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May 2014

Expert matters: Witness immunity - not down the drain?

In this edition of expert matters John Temple-Cole, Partner and Alex Viniarsky, Senior Business Analyst in our Sydney office, discuss a case which explores the continuing applicability of the doctrine of witness immunity for experts, and their employers.

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April 2014

Business model innovation - Part 1 - The need to innovate

What is innovation and how does it occur? Technological advances are shaping and empowering consumers. We demand more, and better, for less. Forward thinking businesses are changing the way they operate to harness these new technologies and deliver value to their customers in new and interesting ways. .

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April 2014

Damages matters: Calculating pre-judgement interest

In damages claims, interest is usually applied on a damages amount to the date of judgment. In the Federal Court, this pre-judgment interest is usually calculated with regard to Practice Note CM 16. However, there are times where judgement is required to derive the correct amount of interest.

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April 2014

Forensic matters: Storm clouds ahead? Part 2

In Part 1 of this article, we considered the issues surrounding data privacy in the cloud. In Part 2, we now turn to consider the issues which arise when using data stored in the cloud as evidence in support of investigations or litigation.

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March 2014

Leading the herd - Agribusiness in North Queensland

Volume two of our 'Leading the Herd' newsletter provides a brief commentary on our observations of matters relevant to agribusiness in North Queensland.

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March 2014

Forensic matters: Storm clouds ahead?

In today’s digital world, many organisations collect and maintain data about their customers. Organisations are also outsourcing many of the costly components of their data storage and IT infrastructure to the “cloud”. As they do so, are they ensuring compliance with data privacy laws and that their customers’ data is appropriately secured, protected and managed?.

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February 2014

Expert matters: The importance of meeting timetables

In this edition of expert matters Andrew Ross, Partner and Sasikala Kandiah, Associate Director in our Sydney office discuss a case which reiterates that an expert has a responsibility to comply with directions or orders made by a Court, in this particular instance with regards to meeting the timetables set.

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February 2014

Pharmacy: A challenging and changing outlook

The Australian retail pharmacy industry is facing a challenging outlook. Effort by the government to slow down the rapid growth in the cost of delivering the PBS have begun to have an impact on pharmaceutical dispensing revenue. At the same time retail pharmacy’s approach to market is also been questioned and disrupted by a rapid growth in big pharmacy discounter.

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January 2014

Forensic matters: A revised standard for forensic accountants

Lawyers and barristers working with forensic accountants, and in particular those acting as Expert Witnesses, should be aware that the existing standard, APES 215 Forensic Accounting Services has been revised. In this issue of Forensic Matters, Fionna Oliver –Taylor discusses the key revisions to APES 215.

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January 2014

Damages matters: The currency of choice

When the quantum of loss suffered depends on the volatility of foreign exchange rates Disputing parties can spend significant time and resources to quantify a damages claim. When the issues in debate involve foreign currencies, exchange rates can have a significant impact on the award of damages.

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November 2013

Expert matters: The catch to independence requirements

In this edition of expert matters Alex Canale, manager in our Sydney office, discusses a judgement in a case where both accounting experts engaged by the Defendant were lacking the required independence. .

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November 2013

Gold ore mining: all that glitters is not gold

Australia has the world's largest gold reserves and is the second largest producer (after China). The 'goldilocks' era of ever increasing gold prices is likely over and the industry must achieve higher productivity growth to avoid contracting profitability and mine closures. Whilst miners are firmly focussed on cost savings, the challenge ahead is significant. .

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October 2013

Counterparty risk splits townhouses

Split contracts create an issue for financiers of medium density townhouse developments.

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October 2013

Forensic matters: actions speak louder
than words

Practical steps your company can take to demonstrate a culture of zero tolerance to bribery and corruption.
"Do not bribe." These are some of the words a company will state in its policies if it adopts a zero tolerance attitude to bribery and corruption.

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October 2013

Forensic matters: Pallet hunt

We live in a world where an extraordinary amount of data is generated every day. Corporations that analyse and interpret their data can achieve substantial economic gains. In this article, KordaMentha Forensic's data analytics specialists discuss how data analytics allowed a transport organisation to find its lost pallets and, in the process, save large sums of money.

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September 2013

Expert matters: 'Sharp edge' of oppression

Ordinarily, the exchange and receipt of expert evidence would be routine and uncontentious, at least from a procedural perspective. .

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August 2013

Expert matters: The art and science of
Business Valuation

How do you value a Joint Venture when the parties did not enter into a written agreement setting out the nature of the business operations, the parties' interest in the joint venture or the parties' obligations?.

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August 2013

Australian manufacturing - Redefining manufacturing

The decline of the Australian manufacturing sector has long been documented. Since 1974 manufacturing's contribution to GDP has halved, declining from 17% to 8%. However, perceptions of the relative unimportance of Australian manufacturing amid the growing resources and services sector are overly simplistic.

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July 2013

Expert matters: Expert advice: when expertise clashes with loyalty

In this edition of expert matters, we review two cases which involved expert evidence being provided by employees of parties to the litigation, with different outcomes. .

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June 2013

Damages matters: To gross-up or not to gross-up

Taxation in the assessment of damages.
When we think about a damages award arising from litigation, we think of barristers, lawyers, witnesses, accounting experts and so forth, but often overlooked is the Australian Taxation Office and the tax that may be assessed on a damages award.

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May 2013

Expert matters: Spoon fed experts

In this issue of Expert Matters, Kellie Badge, Associate Director of KordaMentha’s Melbourne Forensic practice, considers the judgement in a case where there was only one accounting expert engaged. The trial judge found that the expert was in breach of the Expert Code of Conduct by solely relying on inadequate instructions and assumptions provided by the lawyers.

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April 2013

Expert matters: Expert conclaves: avoiding collisions of ships in the night

The use of expert conclaves or joint meetings of experts by Australian courts is becoming more prevalent, but there has been limited judicial guidance as to the manner in which these conclaves should be conducted. .

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March 2013

Mining services - Riding the crest of the
mining boom

Over the past decade the Australian mining services sector has ridden the wave of the Millennium Mining Boom. Recent commodity price falls, and the resultant deferral of major mining projects, have prompted some commentators to call the end of the mining boom. .

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February 2013

Forensics Matters - Death, taxes and
computer assisted review

Has the time come for a radical change in how eDiscovery is undertaken? When we consider all of the events that are taking place in courts the world over, perhaps computer assisted review (CAR), which includes predictive coding, should be adopted as best practice, especially in cases involving large amounts of electronically sourced information (ESI).

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January 2013

Road freight - Part 2 - Outlook

Following on from Part 1 of our Road Freight industry publication released last month, Part 2 examines the outlook for the industry and the growing challenges of congestion, driver shortages and regulation. We also look at how the rapid adoption of online retailing and communication improvements are increasing the importance of the "last mile" in logistics networks.

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January 2013

Forensics Matters - Some like it hot!

Judicial orders to hear expert evidence concurrently are not new, however the manner in which such 'hot-tubs' are run varies greatly from Court to Court. In this article, we reflect on the experiences of six KordaMentha Forensic Partners in giving evidence in a 'hot-tub' scenario.

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January 2013

Expert Matters - Sometimes it is better
to settle for less

In this edition of Expert Matters, Sally Davitt, a Director in our Sydney office, considers a case where an expert admitted to being "reckless" in his quantification of damages in circumstances where his report was alleged to have been used as the basis for a settlement offer.

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December 2012

Road freight - Part 1 - Industry overview

Australian logistics is a $94 billion industry comprising road, rail, air and sea freight, together with warehousing and handling. In this publication we provide an overview of the industry and examine major cost components. In January 2013 we will be releasing Part 2 of the publication.

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December 2012

Forensics Matters - Navigating the
regulatory maze

Should you negotiate or defend when the subject of regulatory action? When a company is confronted with an investigation by a financial regulator, it has the choice of either defending the action or negotiating an outcome. .

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November 2012

Damages Matters - Are overheads fixed
and does it matter?

Faced with the task of estimating damages to be awarded or profits to be disgorged, courts and lawyers are often confronted with the question of which costs should be deducted from the revenue that was or would have been earned. .

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November 2012

Expert Matters - The 'Path to Bliss' is not always a smooth one

In this edition of Expert Matters, Sally Davitt, a Director in our Sydney office, considers a recent case involving a religious organisation. The admissibility and independence of two experts was called into question as their claimed area of expertise was not related to their profession, and they were both apparently “devotees” of the organisation in question.

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September 2012

Construction - Part 5 - Industry outlook

The outlook for the construction industry is difficult. Whilst residential and commercial construction activity is forecast to return to modest growth, the end of the Building the Education Revolution (BER) stimulus will drive institutional building activity down. Demand from the mining boom will continue to underpin engineering construction activity but there is some uncertainty over the value of new mining projects due to come on stream.

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September 2012

Expert Matters - When admissibility objections mean the Hot Tub is getting cold

In this edition of Expert Matters, Sally Davitt, a Director in our Sydney office, considers a recent case where both parties objected to the admissibility of the evidence of 12 different experts part way through the trial and just as they were about to enter the ‘hot tub’ to give concurrent evidence.

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September 2012

Construction - Part 4 - Residential construction

Residential construction is a $42 billion division representing 17% of the overall construction industry. Despite strong population growth, the sector has declined in recent years due to prevailing economic conditions and a winding back of government subsidies for home buyers. .

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September 2012

Forensics Matters - A fair day's
wage for a fair day's work

Detecting payroll underpayments through data analytics - Over recent months, media reports have highlighted a number of cases of employee underpayments, ranging from suburban restaurants to multi-national organisations. According to the Fair Work Ombudsman (FWO), a random audit of approximately 2,000 retail businesses found 26% were breaking workplace laws and/or regulations.

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August 2012

Construction - Part 3 - Non-residential construction

Non-residential construction is an $26 billion division representing 10% of the overall construction industry. The sector has had mixed fortunes. Demand for commercial and industrial construction plummeted in the wake of the GFC, but fiscal stimulus measures drove significant growth in schools construction and helped drive a 7.5% p.a. growth in institutional building construction over the past five years. .

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August 2012

Construction - Part 2 - Engineering construction

Engineering construction is an $81 billion division representing 32% of the overall construction industry. It has risen to prominence in recent years on the back of unprecedented private sector investment by the resources sector and public sector investment in major infrastructure projects such as highways and water pipelines. This is the second paper in our five part review of the construction industry.

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August 2012

Construction - Part 1 - Industry overview

The Australian construction industry has revenue of $255 billion and represents 8.5% of Australian GDP. The industry has grown by 3% pa over the past five years although this general growth rate masks divergent growth rates between sectors. Over the course of the next five weeks we will be issuing five publications focusing on the construction industry. This initial publication provides an overview of the industry.

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August 2012

Damages Matters - Charity begins at home
and justice begins next door

Damages are intended to be compensatory in nature. They are designed to place an injured party back in the position in which it would have been, had the relevant alleged wrong not occurred. While these principles have general acceptance, questions may still arise. .

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July 2012

Forensics Matters - Stay out of trouble

How Morgan Stanley's effective anti-corruption risk management and compliance framework helped avert regulatory action.
In this article, Jarrod Baker, a Director in our Perth office, discusses a recent FCPA case development that highlights the benefits of being proactive and developing a robust anti-corruption risk management and compliance framework.

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July 2012

Expert Matters - Instructions matter

Welker & Ors v Rinehart & Anor., Supreme Court of NSW.
The plaintiffs in these proceedings were seeking to be appointed as trustees of the Hope Margaret Hancock Trust of which one of the defendants is currently the Trustee. The defendants opposed the application. .

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July 2012

Forensics Matters - Is Predictive Coding the
electronic discovery 'Magic Bullet'?

Predictive Coding is the emerging tool of choice in the fight against the escalating size and related cost of managing and disclosing electronically stored information ('ESI'). In this article, Craig Macaulay and Harvinder Singh consider how some recent cases involving Predictive Coding may affect the future of eDiscovery.

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June 2012

Forensics Matters - Online poker, reality or bluff?

On 14 April 2011, the US online poker market was thriving. At any time, over 55,000 players sat at virtual tables, gambling with their real dollars. The market was dominated by three players - Full Tilt Poker, PokerStars and Absolute Poker (the 'Poker Companies'). This industry was brought to a shuddering halt on Friday 15 April 2011, when US Department of Justice ('DoJ') seized control of the companies' websites and accused them of bank fraud, illegal gambling and money laundering.

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June 2012

Damages Matters - The real value of hindsight

When adhering to fundamental valuation principles, valuers should be mindful of events that have not occurred by the valuation date and had not been anticipated as at that date. Information regarding any subsequent events is often referred to as "hindsight" and is generally not incorporated into business valuations.

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May 2012

Forensics Matters - Bribery and corruption
in Asia-Pacific

Although most countries in the Asia-Pacific region have legislation in place to combat corruption, this region is constantly evolving, and not always at an equal rate. In this article we discuss some of the major cases of corruption legislation in the Asia-Pacific region. We also provide separately our guide to the legislation and regulators applicable to each country. Read the full version with the legislation .

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May 2012

Expert Matters - The one about the judge

Taking a bold step into the unknown (or perhaps the mystical), in this edition of Expert Matters we depart from our usual practice of discussing the decisions of Australian courts. Mercado is, to put it mildly, one of the more bizarre judgments we have come across dealing with expert evidence. It involved a contract dispute between Bart Enterprises International Inc. and Walter Mercado Salinas.

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April 2012

Online retailing - a new era of agile commerce

During 2011, the growth of online retailing attracted considerable media attention. The incumbent bricks and mortar retailers preoccupied themselves with an ill-conceived and ultimately unsuccessful campaign against overseas retailers 'muscling in' on their territory. In contrast, smaller domestic start-ups recognised and met growing consumer demand for online purchasing and were awarded with astonishing growth.

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March 2012

Expert Matters - Is that a fact?

According to the "opinion rule", witnesses must state facts, not give opinions. They must speak only to what was directly observed or perceived by them. Experts, on the other hand, can give opinions based on their specialised knowledge. This case considers whether the evidence given by a lay witness was opinion, statements of fact or unparticularised statements of fact.

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February 2012

Franchising- consolidation and corporatisation to fuel further growth

Franchising in Australia is a $200 billion industry comprising around 1,000 franchise systems and approximately 69,000 operating units. Income streams vary according to the sector in which the franchisor operates and the terms of the specific franchise agreements.

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December 2011

Retail pharmacy - ready to take its
medicine?

The network of 5,250 retail pharmacies is the only health professional network that has grown in regional and rural Australia over the past decade and contributes $12.4 billion per annum to GDP. The industry has long enjoyed regulatory protection and government support but the spiralling cost of healthcare has prompted the government to introduce reforms aimed at reducing the rate of growth.

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November 2011

Forensics Matters - advanced interview techniques

In business we are often involved in controlled conversations. Sales meetings, negotiations, interviews with staff and various stakeholders. In these controlled conversations we ask questions seeking information which is important to us concerning the particular issue or issues. To maximise the outcomes we need to develop our skills in question formulation, listening and analysis.

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October 2011

Damages Matters -  What is the value of a chance?

Welcome to the first Damages Matters publication. Written by members of the KordaMentha Forensics team specialising in Dispute Analysis and Forensic Accounting, Damages Matters provides insights into key issues in the field of Dispute Analysis and business valuations. In this edition, we discuss general approaches to assessing damages and consider the quantification of economic loss for lost commerical opportunities.

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September 2011

Forensics Matters - Audit negligence - who is to blame when it all goes wrong?

Audit firms continue to be the target of professional negligence litigation following a corporate collapse, but what liability do audit firms have for neglience? Is it really as straightforward as blaming the audit firm for any unforseen corporate collapse?.

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September 2011

SMEs - in a world of pain

Small to medium sized enterprises remain the engine room of economic activity throughout Australia. Accounting for more than a third of GDP, Australia's 1.2 million SME's employ over five million Australians. The vast majority are so called micro SMEs that employ less than 20 people and are most susceptible to economic turbulence.

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August 2011

Expert Matters – When the dust settles (part 2)

The our last edition of Expert Matters, we considered a recent High Court case regarding the admissibility of expert evidence. In this article, Ben Mahler (a Manager in our Singapore office) discusses Justice Heydon’s separate judgement in the matter. This judgement considers the rationale, authority and principles behind three common law rules for the admissibility of expert evidence and their relationship with section 79 of the Evidence Act.

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July 2011

Expert Matters – When the dust settles (part 1)

In a recent High Court appeal, the full bench concurred on a matter relating to the admissibility of an expert’s evidence at trial. The majority (of six) found that an expert’s evidence had to show the relevance of their specialised knowledge to the opinion they were providing, and that their opinion is wholly or substantially based on that specialised knowledge. We review Justice Heydon’s comments in the next edition of Expert Matters, and in this edition focus on the background of the case and the majority decision.

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July 2011

Forensics Matters – Bribery charges against RBA subsidiaries

Forensics Partner, Richard Bennison, speaks to ABC News on bribery and corruption. On 1 July 2011, bribery charges were laid against two of the Reserve Bank of Australia’s subsidiaries, Securency International Pty Ltd and Notes Printing Australia Limited, as well as six individuals involved with the organisations. This is the first prosecution under Australian foreign bribery legislation that came into force in 1999.

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July 2011

Forensics Matters - Centro: Do non-executive directors require accounting knowledge?

The recent ASIC case against directors of Centro has highlighted the responsibilities required of directors, as the Court found that Centro Properties had failed to disclose current liabilities and guarantees in its 2007 financial statements.

In this article, Sally Davitt and Therese Poh discuss what the judgement suggests for the requirements of non-executive directors’ understanding of financial concepts.

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March 2011

Forensics Matters – Look before you leap

It is common for the financial aspects of litigation, that is, the calculation of loss and damage, to take second place to the liability aspects of the case. While it is understandable why so much emphasis is placed on determining the chances of winning the case, not considering the loss and damage in the early stages could be likened to considering only gambling odds without considering the likely payout. However, when we gamble we determine the stakes, while the costs of running litigation can be difficult to determine in advance.

A better approach, in our opinion, is to look at liability, loss and damage as integrally joined parts that should not be separated. In this article Magda Di Vincenzo discusses the benefits of assessing potential loss and damage in the early stages of litigation.

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January 2011

Expert Matters – What is a fact?

Rees v Lumen Primary School [2010] VSC 514. Identifying assumed and accepted facts is crucial to enable the jury or judge to test and draw their own conclusions of the relevant disputed facts; otherwise the expert risks merely supporting the facts with his opinion of the facts. It is important that opinion evidence only be based on the experts specialised knowledge area, as any assumptions expressed outside the experts dedicated field risks being misleading or confusing to the jury or judge, and such will not be tolerated by the court.

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January 2011

Child care – an industry in transition

Over the past 20 years, the Australian child care market has undergone a period of substantial change, from a sector with around 4,100 centres in 1991 (the majority of which were community ‘not for profit’ services), to a sector with around 14,000 centres and with a larger number of private providers.

Whilst the demand outlook for child care services is positive, thanks to the continuing strength of the Australian economy and an increasing participation in the labour force by women, the outlook for private ‘for profit’ operators is far from rosy.

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December 2010

Retail Roundup

Higher interest rates and rising household expenses are continuing to limit the scope for discretionary spending. In the quarter to September 2010 seasonally adjusted, retail sales increased by 0.7% compared to the prior comparable period. The food sector was again the strongest performing segment with growth of 1.1%. In comparison, the clothing and soft goods sector declined by 1.1% during the same period.

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December 2010

Forensics Matters – Foreign Corrupt Practices Act (FCPA)

Foreign Corrupt Practices Act (FCPA) Corporate Compliance Program: New guidance on minimum expectations. Earlier this year, we published an article on “FCPA – are financial institutions next on the chopping block?”, which discussed the enforcement actions involving financial institutions and provided a summary of lessons learned from prior FCPA enforcement cases. In this article, Penelope Lepeudry and Abigail Cheadle update and provide new guidance on minimum expectations when implementing a corporate compliance program.

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December 2010

Retail – Industry Roundup

Higher interest rates and rising household expenses are continuing to limit the scope for discretionary spending. In the quarter to September 2010 seasonally adjusted retail sales increased by 0.7% compared to the prior comparable period. The food sector was again the strongest performing segment with growth of 1.1%. In comparison, the clothing and soft goods sector declined by 1.1% during the same period. The RBA’s decision to raise the cash rate to 4.75% on 2 November 2010 is expected to further impact discretionary spending in the run up to the critical Christmas trading period.

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December 2010

Forensics Matters - Why grope in the dark?

One of the issues frequently facing those assessing loss and damage is whether to take advantage of hindsight – knowledge of facts which occurred after the date of the breach or wrong.

While relevant at all times, this issue becomes especially important in times of rapid economic change such as we are currently experiencing.

In this article Magda Di Vincenzo considers how changes in commodity prices, interest rates, exchange rates and movements in the stock market all have the potential to affect assessments of loss.

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November 2010

Forensics Matters - New challenges in the digital workplace

New challenges tracking digital footprints in the modern workplace: investigating misconduct and fraud in the digital age. Human behaviour hasn’t changed that much over the centuries. It’s inevitable that employees will continue to steal and act improperly or contrary to workplace policy. Employers continue to anticipate and react to the risks and adverse situations arising from any detrimental conduct of their workforce. Importantly for investigators, while employee behaviour has not changed the technology underpinning workplace efficiency has dramatically changed and enabled new and innovative methods to commit fraud or transfer intellectual property to competitive practice. In this article Nigel Carson considers two scenarios in which technology affects the investigation of workplace misconduct.

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October 2010

Agribusiness – Industry Roundup

Listed agribusiness news predominantly reflected corporate transactions with a number of Australian agribusiness companies announcing either asset sales or capital raisings. Listed companies also began to report with greater frequency the negative impact on earnings of the higher Australian dollar.

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September 2010

Manufacturing – Industry Roundup

Welcome to the September 2010 edition of our Manufacturing Roundup. The Manufacturing industry remains cautious due to the highly uncertain global economic outlook. Following sustained growth in July, manufacturing activity weakened in the latter two months of the quarter, with businesses weighing the impacts of a slowing Chinese economy together with a delicate economic recovery in the United States. The Australian Performance of Manufacturing Index (PMI) fell 4.4 points to 47.3 in September, dropping below the 50 point mark separating expansion from contraction for the first time this year.

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September 2010

Expert Matters – The counsel of perfection

It is now well established, through principles set out in the Makita case1, that if evidence tendered as expert opinion evidence is to be admissible, it must (amongst other things) be agreed or demonstrated that there is a field of 'specialised knowledge' and the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'. However this case, and other cases dealing with expert evidence, makes it clear that Makita principles are a counsel of perfection. As Sydney Forensics partner John Temple-Cole discusses, a Court may find an expert’s evidence admissible, notwithstanding that it 'strictly speaking' does not live up to Makita principles. However, an expert’s report with such failings would appear to run an increased risk of being given little, if any, weight by the Court. .

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August 2010

Agribusiness – Industry Roundup

There was limited listed agribusiness news this month as listed companies cleared the decks during profit season last month. The Bureau of Meteorology’s August Drought Statement reported that dry conditions continued for the south west region of Western Australia, with many areas recording record low rainfall contributing to the second driest start for a year since 1900. New South Wales, Queensland and Victoria have had the wettest start for a year in over a decade, although continued rain is needed to clear the long term rainfall deficits caused by the multi‑year drought.

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August 2010

333 – TMA Turnaround Survey

The 333 – TMA Survey: Insights from the Australian Turnaround Industry.

The survey is the first of its kind in Australia, offering a unique insight into the causes, challenges, responses and successes of corporate turnaround activity during the recent financial crisis. It focussed on ‘real’ problem solving and gaining a deeper understanding of what works and what doesn’t work. The survey analysed over 100 attempted or successful business turnarounds across multiple industries, and included responses from all key stakeholders including management, financial stakeholders and advisors.

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August 2010

Expert Matters – An unfortunate consequence

The use of experts is, quite rightly, a process that should be closely managed by the Courts, who decide the process, scope and admissibility of expert evidence. In this issue of Expert Matters, Therese Poh examines two separate cases which demonstrate the dynamic nature of the Court’s management of expert evidence.

These cases deal with the admissibility of further expert evidence in proceedings after the Court had already admitted expert evidence on a similar topic.

The common thread of these two cases is the interest the Court has in upholding judicial fairness towards both parties. At the early stages of proceedings, intentional or unintentional mishaps relating to expert evidence can often be accommodated by allowing further evidence, even if this has the 'unfortunate consequence' of incurring additional costs. .

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August 2010

Expert Matters - When is an expert not an expert?

When thinking of expert evidence many of us think of opinions on complex financial or scientific matters in respect of which, without the expert evidence, the Court would not be able to arrive at a decision. This matter shows that this may not always be the case and provides insights into the role of an expert and what constitutes admissible expert evidence.

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July 2010

Agribusiness – Industry Roundup

Welcome to the latest edition of our Agribusiness Industry Roundup. Listed agribusiness news reflected difficult trading conditions, as illustrated in the results announced for AAC, Farm Pride Foods, Gunns, Tandou and Websters.

The Bureau of Meteorology’s July Drought Statement reported that despite above average rainfall for most of Australia, the south west region of Western Australia continued to experience dry conditions, recording its third driest start to a year since 1900. In contrast, Queensland recorded its wettest start of year since 1980 despite having very dry weather during May and June. Consequently, Western Australia is the only remaining region still recording short term (up to 18 months) rainfall deficits.

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July 2010

Increasing the options

Time and cash are major constraints when dealing with distressed businesses. A common mistake is to accept these constraints as fixed variables. In our latest paper we outline how the number and quality of available restructuring options can be increased by 'buying' time. Most cash management improvements are the result of work from multiple people within the organisation – mostly from outside the finance department and the Boardroom. We discuss how to build the right team, establish control and obtain visibility. From here, we describe how to use the playbook and explore all the options to improve short term cash flow. 'Missing the dips', 'Moving the line up' and 'Trending the line up' are the primary strategies available to identify and implement cash flow improvement initiatives.

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July 2010

Retail – Industry Roundup

It would appear recent consecutive interest rate rises, together with other weakening macro factors, are beginning to directly impact discretionary spending. Whilst seasonally adjusted retail sales increased by 1.4% during the March 2010 quarter (compared to the prior comparable period), the growth was primarily driven by the Food sector (growth of 2.2%) which masked a 0.2% contraction in the Household Goods sector. Consumer confidence fell sharply in May (7% decline according to the Westpac-Melbourne Institute Consumer Sentiment Index) and the increase in the minimum wage by $26 per week is likely to increase pressure on retailers’ bottom line.

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July 2010

Forensics Matters – FCPA financial institutions

Welcome to the second edition of Forensics Matters. We have introduced a new publication, Expert Matters which will concentrate on trends, cases and issues with the use of expert witnesses, whilst Forensics Matters will provide insights into key trends, events and issues in the fields of forensic accounting and investigations, fraud risk management, E-Discovery and computer forensics. This edition concentrates on two issues; bribery and corruption allegations for companies and secondly, some issues relevant when considering allegations of so-called 'churning' of investors’ accounts. .

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July 2010

Expert Matters – A or B? I choose C

In this issue of Expert Matters Sally Burnham, Associate Director, considers a recent case where a judge could not decide which of the competing views expressed by the parties’ respective experts was correct, and the circumstances in which the judge can rely upon the evidence of the parties to resolve a difference of opinions between experts. The appeal also considered the issue of whether the economic damages awarded were based on the material in evidence. .

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June 2010

Agribusiness – Industry Roundup

Listed agribusiness news reflected ongoing concerns around rural conditions with profit warnings from Elders and Nufarm attributed to soft demand for rural products. The Bureau of Meteorology’s June Drought Statement reported lower than average rainfall across Australia with south western areas of Western Australia particularly affected. However, despite rainfall in June being below average, conditions remain good across much of eastern and northern Australia given rainfall in the first half of 2010.

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June 2010

Manufacturing – Industry Roundup

Manufacturing activity expanded strongly in April before slowing in May and June, with the Australian Performance of Manufacturing Index (PMI) falling to 52.9 points (albeit remaining above the 50 point mark separating contraction from expansion). In addition to an overview of recent trends and developments in the manufacturing sector, we focus on the cash implications of taking advantage of growth opportunities and discuss a number of tactics manufacturers can adopt to mitigate this.

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May 2010

Aged Care Industry Paper

The Australian government has made a number of recent policy changes designed to improve the quality of care provided in residential aged care facilities. These policy changes, coupled with the shortage of available credit, has resulted in many operators experiencing intense operational and financial pressure. Over the last six to twelve months we have seen a significant increase in the number of residential aged care operators in default of lending covenants.

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May 2010

Agribusiness – Industry Roundup

Listed agribusiness news reflected a mixed bag with profit upgrades and strong profit results from Australian Vintage and Graincorp offset by profit warnings and lower earnings from AWB and Elders. Above average rainfall was recorded across northern and central areas of Australia, with the Murray Darling Basis experiencing its wettest start to a season since record keeping commenced in 1900. However, the rainfall outlook to August 2010 reflected a strong shift towards drier conditions as a result of higher temperatures in the Pacific and Indian Oceans.

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May 2010

Retail – Industry Roundup

The retail sector, like others in the Australian economy, has rebounded from the sharp declines experienced during the global financial crisis. However, discounting and a sense of caution remain. In addition to an overview of recent trends and developments in the retail sector, we discuss some of the labour cost management strategies that can be employed to mitigate the erosion of margins in difficult retail market conditions. In particular, we focus on how margin erosion can be reclaimed through better labour cost management and explain how customer service improvements can be achieved, even with a lower cost base.

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May 2010

Expert Matters – Expert overkill

Joint expert conferences are becoming increasingly common when Courts are confronted with conflicting expert views. In this issue of Expert Matters, Therese Poh (Executive Analyst) of KordaMentha, examines some of the implications for an expert 'report in reply' in situations involving multiple experts, including that: Matters involving multiple experts may not always lead to reports in reply being admissible. .

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May 2010

Expert Matters – Experts immune from the law

Expert witnesses often provide opinions that are invaluable in assisting Courts reach fair judgments. Unfortunately, there are instances where the impartiality and independence of an expert is challenged. As a result of both their contributions and failures, the role of experts has changed, and will continue to change, as time, the law, and public opinion evolves. This issue of Expert Matters considers two recent cases that suggest that the days of special protection being afforded to experts may be numbered. .

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April 2010

Agribusiness – Industry Roundup

Welcome to the latest edition of our Agribusiness Industry Roundup. Listed agribusiness news was limited during March 2010 although the run of bad profit news continued with AWB and NuFarm announcing profit downgrades whilst Elders announced an external review of forestry operations. Rainfall was positive. The Bureau of Meteorology’s March Drought Statement reported above average rainfall across eastern Australia with the Murray Darling basin recording the seventh wettest start to the year since records commenced in 1900.

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March 2010

Agribusiness – Industry Roundup

The Bureau of Meteorology’s March Drought Statement reported above average rainfall across eastern Australia over March 2010 with the Murray Darling basin recording the seventh wettest start to the year since records commenced in 1900. This rainfall has largely eliminated rainfall deficits over the last two years, although longer term rainfall deficits remain. However, Western Australia saw short term rainfall deficits due to the central area of the state being largely missed by rainfall during the period.

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March 2010

Manufacturing – Industry Roundup

Manufacturing activity expanded modestly in the first two months of the quarter and then eased in March 2010, with the Australian Performance of Manufacturing Index (PMI) falling 3.6 points to 50.2 points, slightly above the 50 point mark separating contraction from expansion. The fall was due to declines in production, employment and inventories combined with slower growth in new orders. With modest sales reported both in the domestic and global markets and the negative impact of the high AUD and rising interest rates, easing in the manufacturing sector is expected to continue.

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February 2010

Agribusiness – Industry Roundup

The Bureau of Meteorology’s February Drought Statement reported that widespread rainfall across most of eastern Australia had eliminated short term rainfall deficits with only mid western areas of Western Australia reporting rainfall deficits, reflecting a drier than normal summer. Although the rainfall in February 2010 has eliminated most medium rainfall deficits, long term deficits still exist for the lower Murray Darling Basin.

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January 2010

Agribusiness – Industry Roundup

The Bureau of Meteorology’s January Drought Statement reported that widespread rainfall across most of Queensland and the Northern Territory in January 2010 had eliminated most rainfall deficits in those areas. However, serious long term rainfall deficits remained for the south east of New South Wales and southern coastal regions of Victoria.

News from listed agribusiness companies was slow in January 2010 apart from CSR’s announcement regarding potential takeover offers from China’s Bright Foods and takeover activity surrounding Tandou.

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December 2009

Australian Corporate Health Index

The 333 Australian Corporate Health Index is a pulse check that assesses the health and resilience of corporate Australia. Based on members of the ASX All Ordinaries Index between 2003 and 2009, it uses changes in the Altman Z-Score as a measurement of corporate health. As the Altman Z-Score is the most widely used and most commonly understood predictor of financial failure, the 333 Australian Corporate Health Index is able to provide insight into the current level of health and resilience in corporate Australia.

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December 2009

Forensics Matters – A new standard for Forensics

Lawyers and barristers working with forensic accountants, and in particular where the accountant is acting as an Expert Witness1, should be aware that there is a new standard for forensic accountants for ensuring quality and ethics in their work. APES 215 Forensic Accounting Services ('the Standard') aims to adopt a mandatory high water mark and has drawn on the requirements of court guidelines and rules of various Australian jurisdictions. .

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October 2009

Agribusiness – Industry RoundUp

The Bureau of Meteorology's latest Drought Statement reported above average rainfall across most of Australia in October 2009 with northern New South Wales and the Queensland interior receiving heavy falls. A serious short term rainfall deficit for the four months from July to October 2009 has emerged.

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September 2009

Agribusiness Industry Roundup

News from listed agribusiness companies reflected ongoing restructuring and deleveraging of agribusiness companies with AWB and Elders announcing major capital raisings to reduce debt. The Bureau of Meteorology's latest Drought Statement reported that a wetter than usual september across southern and central Australia had eased rainfall.

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August 2009

Agribusiness Industry Roundup

The Bureau's rainfall outlook for the period from September to November 2009 reflected a strong shift in the likelihood of drier weather across eastern Australia although the south west of Western Australia is expected to experience higher than average rainfall. News from listed agribusiness companies reflected a run of poor results and profit warnings with only a few companies such as Graincorp or Tassal reporting an improved outlook.

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July 2009

Agribusiness Industry Roundup

The Bureau of Meteorology's latest Drought Statement reported that rainfall acorss the south east of Australia during July 2009 had reversed the short term rainfall deficits that had been impacting on Victoria and South Australia during 2009. The Bureau's rainfall outlook for the period from August to October 2009 reflected a strong shift in the likelihood of drier than normal weather.

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June 2009

Agribusiness Industry Roundup

News from listed agribusiness companies was to the downside in June 2009 with profit warnings from Australian Agricultural Company, Websters and Warrnambool Butter Company. The Bureau's rainfall outlook for the period from August to October 2009 reflected a strong shift in the likelihood of drier than normal weather.

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June 2009

Retail Industry Roundup

The recent growth in retail sector sales is primarily attributable to the Federal Government's stimulus package. The Clothing and Soft Goods and Food retailers have been the main beneficiaries of the handouts with Household Goods retailers continuing to struggle.

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May 2009

Agribusiness Industry Roundup

The Bureau of Meterology's latest Drought Statement reported that rainfall was very much below average across Australia during May 2009. Victoria and the south west of Western Australia are suffering from severe short term rainfall deficits and have recorded its third driest start to a year since 1900.

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April 2009

Agribusines Industry Roundup

News from listed agribusiness companies was generally pessimistic in April 2009 with a number of profit downgrades being released. The appointment of voluntary administrators to Timbercorp Limited also dominated agribusiness news given the number of investors impacted by Timbercorp's failure and the anticipated fallout on other MIS operators.

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March 2009

Agribusiness Industry Roundup

The Bureau of Meterology's latest Drought Statement reported unusual rainfall patterns for March 2009 with above average rainfall for much of central and south eastern Australia but below average rainfall for most of northern Australia. Despite this, Victoria still recorded its third driest January to March period on record.

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March 2009

Retail Industry Roundup

Total Retail sales increased a seasonally adjusted 0.2% in January 2009 to $19.2 billion. Clothing and soft goods sector increased 0.8% in January with PCP growth over 6%. The RBA left interest rates on hold at 3.25% in March 2009 citing domestic demand (having not weakened as much as other countries) and strength of the domestic financial system as reasons for the decision.

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February 2009

Agribusiness Industry Roundup

Listed agribusiness companies generally had a poor half year reporting season, as losses and profit warnings outweighed the better prospects of companies such as ABB and Graincorp on the basis of their expected benefits from improved cropping conditions and the lower Australian dollar. Australian Vintage and Furturis were notable listed companies that were impacted by heavy operating losses.

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January 2009

Agribusiness Industry Roundup

Shares in a number of listed agribusiness companies showed the impact of the worldwide economic downturn with substantial impairment charges flagged by Australian Vintage and Warrnambool Cheese and Butter flagging lower profitability due to lower world dairy prices and Gunns forecasting lower exports due to the downturn in the Japanese economy.

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