“13. The Honourable Court’s attention is drawn to the following:
(a) The Town Councillors have given evidence of the facts and circumstances then existing and their reasons for making the decisions which they did – both in respect of the appointment of contractors and their payments. This evidence has not been rebutted.
(b) In second-guessing what the Town Councillors should have done, the Plaintiffs have built their case entirely on their attempts at giving the evidence their own specious interpretation or by subjecting the Defendants to the standards of perfect hindsight using hypothetical scenarios that ignored the actual circumstances that the Town Councillors faced at the time.
(c) The Plaintiffs have not shown that the Town Councillors’ decisions resulted in actual losses to AHTC/AHPETC. The purported losses which are claimed in the 2 Suits are losses alleged by the Plaintiffs or their accountants on the basis of figures plucked from the documentation. This was done without ascertaining whether these alleged lower cost figures were in reality achievable at the material time.
(d) Much of the Plaintiffs’ cross-examination proceeded on unpleaded matters. These matters relate to material facts which must be pleaded. The Court should therefore disregard the Plaintiffs’ submissions based on its unpleaded case. It is for the Plaintiffs to plead the necessary particulars. The instances where the Plaintiffs have proceeded on unpleaded facts have been identified in the Defendants’ submissions. These instances include an alleged “conspiracy” to remove CPG and appoint FMSS as the MA in order to advance the interests of the WP and its supporters.”