Crimson SRL and Anor v Claudia Shoes Pty Ltd and Ors (No.3) - [2007] FMCA 1555

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CRIMSON SRL & ANOR v CLAUDIA SHOES PTY LTD & ORS (No.3)

[2007] FMCA 1555

TRADE PRACTICES – Misleading and deceptive conduct – passing off – whether stores operated by a third party – whether allegations put to fifth and sixth respondents – whether fifth and sixth respondents knowingly involved in contravention – whether incorporation of foreign corporation proved – application of s.190(3) of the Evidence Act 1995.

Evidence Act 1995, ss.190(3), 190(4)
Fair Trading Act 1987 (NSW), ss.42, 44
Trade Practices Act 1974, ss.52, 53, 75B

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
H v Schering Chemicals (1983) 1 WLR 143
Murine Eye Remedy Co v Eldred [1926] VLR 425
Pearce v Button (1986) 65 ALR 83

First Applicant:

CRIMSON SRL

Second Applicant:

LYNCH FASHION MARKETING PTY LTD (ACN 010 466 485)

First Respondent:

CLAUDIA SHOES PTY LTD
(ACN 050 235 491)

Second Respondent:

CLAUDIA ASSERAF

Third Respondent:

SALAMAN ASSERAF

Fourth Respondent:

YL IMAGE HOUSE PTY LTD
(ACN 113 824 230)

Fifth Respondent:

XIAO LIN DONG

Sixth Respondent:

YI LI QIAN

File number:

MLG 1432 of 2006

Judgment of:

Riley FM

Hearing dates:

25 & 26 July 2007

Date of last submission:

26 July 2007

Delivered at:

Melbourne

Delivered on:

14 September 2007

REPRESENTATION

Counsel for the Applicants:

Michael Wise

Solicitors for the Applicants:

Middletons

Counsel for the Fourth, Fifth & Sixth Respondents:

Mr Young

Solicitors for the Fourth, Fifth & Sixth Respondents:

Dixon Holmes du Pont Lawyers

DECLARATION

The fourth respondent has:
(a)in trade or commerce engaged in misleading and deceptive conduct or conduct that was likely to mislead and deceive contrary to the provisions of s.52 and s.53(c) of the Trade Practices Act 1974; and
(b)committed the tort of passing off.
The fifth respondent has:
(a)in trade or commerce engaged in misleading and deceptive conduct or conduct that was likely to mislead and deceive contrary to the provisions of s.42 and s.44(e) and (f) of the Fair Trading Act 1987 (NSW);
(b)aided, abetted, counselled or procured the contraventions by the fourth respondent of s.52 and s.53(c) of the Trade Practices Act 1974; and
(c)been directly or indirectly knowingly concerned in, or party to, the contraventions by the fourth respondent of s.52 and s.53(c) of the Trade Practices Act 1974.

ORDERS

The fourth respondent, whether by itself, its servants, agents or any of them howsoever, and the fifth respondent, be restrained from:
(a)selling, offering for sale, or exhibiting in public imitation PianuraStudio garments to which the PianuraStudio label has been attached without the authority of the first applicant (“the infringing garments”);
(b)advertising, marketing or promoting the infringing garments;
(c)disposing of possession of the infringing garments other than in accordance with order 2 below;
(d)passing off or enabling to be passed off its business or goods for the business or goods of the applicants or either of them or the business or goods of or endorsed or approved by the applicants or either of them.
The fourth and fifth respondents, whether by themselves or by their servants, employees or agents howsoever deliver up to the second applicant all infringing garments in their possession, custody or control.
The fourth and fifth respondents pay the applicants damages to be assessed.
The applicants and the fourth, fifth and sixth respondents file and serve submissions on costs on or before 4:00pm on 20 September 2007.
The applicants and the fourth, fifth and sixth respondents file and serve submissions on costs in reply on or before 4:00pm on 26 September 2007.
The applicants file and serve the affidavits upon which they intend to rely in relation to the question of damages on or before 26 September 2007.
The fourth and fifth respondents file and serve the affidavits upon which they intend to rely in relation to the question of damages on or before 15 October 2007.
The proceeding be listed for a final hearing on the assessment of damages on 1 November 2007 at 10:00am in Melbourne.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1432 of 2006

CRIMSON SRL

First Applicant

LYNCH FASHION MARKETING PTY LTD (ACN 010 466 485)

Second Applicant

And

CLAUDIA SHOES PTY LTD (ACN 050 235 491)

First Respondent

CLAUDIA ASSERAF

Second Respondent

SALAMAN ASSERAF

Third Respondent

YL IMAGE HOUSE PTY LTD (ACN 113 824 230)

Fourth Respondent

XIAO LIN DONG

Fifth Respondent

YI LI QIAN

Sixth Respondent

REASONS FOR JUDGMENT

Background

The first applicant is said to be a company incorporated pursuant to the laws of Italy and the designer and supplier of an exclusive range of high-end women's clothing and fashion accessories under the label PianuraStudio. The second applicant is a company incorporated in Australia and the exclusive distributor in Australia of PianuraStudio products.
The applicants allege that the fourth respondent, a corporation, at times including August 2006 and January 2007, imported and offered for sale and sold counterfeit PianuraStudio garments at its two shops known as Yili Boutiques and, in doing so, has breached s.52 and s.53 of the Trade Practices Act 1974 (“the TPA”) and committed the tort of passing off. The applicants further allege that the fifth and sixth respondents, who are the directors of the fourth respondent, also imported and offered for sale and sold counterfeit PianuraStudio garments and, in doing so, have breached s.42 and s.44 of the Fair Trading Act 1987 (NSW) (“the FTA”), and, contrary to s.75B of the TPA, aided, abetted, counselled or procured, and were directly or indirectly knowingly concerned in or party to, the contravention by the fourth respondent of s.52 and s.53 of the TPA.
Summary judgement on liability has been separately given against the first, second and third respondents. They have no known connection to the fourth, fifth and sixth respondents.
The fourth, fifth and sixth respondents deny the allegations. They say they ceased to operate the shops well prior to the alleged importations and sales. They say that, pursuant to a management agreement, Mr Jin Liang Jia operated the shops. The fourth, fifth and sixth respondents do not dispute that counterfeit PianuraStudio garments were sold at the Yili Boutiques and do not dispute that the alleged conduct constituted misleading and deceptive conduct and passing off. However, they do say that the fifth and sixth respondents were not knowingly concerned in any misconduct and did not aid, abet, counsel or procure any misconduct. They also say that, because the alleged misconduct was not put to the fifth and sixth respondents, the court cannot find that the fifth and sixth respondents engaged in the alleged misconduct. Finally, the fourth, fifth and sixth respondents say that the incorporation of the first applicant has not been proved.

The issues

Accordingly, the issues for determination are:
a)whether Mr Jia operated the two Yili Boutiques in and around August 2006;
b)whether the alleged misconduct was put to the fifth and sixth respondents;
c)whether the fourth, fifth or sixth respondents engaged in the alleged misconduct;
d)whether the fifth and sixth respondents were knowingly concerned in, or aided, abetted, counselled or procured, the alleged contravention; and
e)whether the incorporation of the first applicant has been proved.

The history of the matter

It is common ground that the sixth respondent initially operated the Yili Boutiques. She said that, on or about 24 June 2000, a company by the name of Yi Li's Fashion Pty Ltd began trading at shop G32 Centrepoint in Sydney. The sixth respondent was the sole director of that company. However, a company extract shows that Yi Li's Fashion Pty Ltd was not incorporated until 26 March 2002. I take it that the sixth respondent began operating the Centrepoint shop in June 2000 on her own account.
On or about 18 May 2001, the sixth respondent registered the business name Yili Boutique with herself as the proprietor. On or about 1 May 2002, Yili's Fashion Pty Ltd began trading at a shop in St Ives. The sixth respondent operated the two shops from the time they started trading until at least April 2005. Yili's Fashion Pty Ltd was deregistered on or about 14 March 2004 for failing to file annual returns with ASIC. On or about 4 April 2004, the business name Yili Boutique expired. However, the sixth respondent continued to operate the two Yili Boutiques at least for a time.
The applicants did not dispute the sixth respondent’s affidavit evidence that from late 2003, she started a real estate investment business in China which required her to travel frequently between Australia and China. In about June 2004, the sixth respondent, her husband and her daughter moved to Shanghai to live, but she continued to operate the two shops.
The sixth respondent said, and it is disputed, that the situation became unworkable and, in late March or early April 2005, she suggested to Mr Jia, a family friend, a de facto transfer of the business to him. The sixth respondent said that, on 7 April 2005, she, Yili's Fashion Pty Ltd (notwithstanding that it was by then deregistered) and Mr Jia, entered into a management agreement. A certified translation of the agreement is as follows:
Agreement
Party A: Jia Jin Liang
Party B: Qian Yili; Yili’s Fashion Pty Ltd
This agreement is signed on
After friendly negotiation between Party A and Party B, the agreement about the operation of “YILI BOUTIQUE” has been reached as follows:
1. YILI BOUTIQUE consists of two shops: G32 Center Point, Gallery Level, 100 Market Street, Sydney 2000 and shop 89, St Ives Shopping Village;
2. Due to several reasons, Party B couldn’t operate these two shops any longer and decided to allow Party A to operate these two shops under this agreement.
3. Party A agrees to operate the above-mentioned two shops
Both parties’ rights and responsibilities:
4. Party B guarantees the extension of Lease Agreements of the above-mentioned two shops until Party A notifies not to keep operating the above-mentioned shops 45 days before the Lease Agreement of the above-mentioned two shops expires.
5. Party B guarantees the current profit-generate facilities of the above-mentioned two shops until Party A notifies not to keep operating the above-mentioned shops 45 days before the Lease Agreement of the above-mentioned two shops expires.
6. Party A agrees to operate the above mentioned two shops individually, take full responsibility for profit and loss of the business.
7. Party A agrees to pay the operation expenses, debts and full responsibilities of the above-mentioned two shops individually. Party B doesn’t take any obligations or responsibilities.
8. Party A agrees to give 10% of the annual profit of the above-mentioned two shops OR no less than A$20,000 each shop each year to Party B.
9. If Party A breaches any of the terms in this agreement, Party B will terminate this agreement without taking any responsibilities for breach.
10. Party A has the right to terminate this agreement without the compensation for Party B if Party B breaches Term 4 & 5 of this agreement, unable to supply the valid Lease Agreement and profit-generated facilities.
11. This agreement is in effect on the date of sign.
Party A’s signature: JIA JIN LIANG
Party B’s signature: QIAN YILI
YILI’S FASHION PTY LTD
07/04/05
The sixth respondent said that after the agreement was entered into, she stopped operating the two shops completely and spent only four or five weeks a year on average in Australia.
The fifth respondent is the former wife of the sixth respondent’s husband and the mother of his daughter. The daughter now resides with the sixth respondent. The fifth respondent said that, in early April 2005, the sixth respondent told her what was planned for the business and asked her to keep an eye on the shops’ monthly net profit situation and to set up a new company to enable the credit card merchant facility to continue. The fifth respondent said that the sixth respondent offered her $600 a week to keep an eye on the profit situation and that she accepted the proposal.
On or about 14 April 2005, the fourth respondent was incorporated. The fifth and sixth respondents were directors of the company. The fifth respondent was the secretary and owned 30% of the shares and the sixth respondent owned 70% of the shares. The application form states that the registered office of the fourth respondent is “G32 Gallery Level, Centrepoint 100 Market Street Sydney” and that the company occupies those premises.
In her affidavit, the fifth respondent said that she had caused the fourth respondent to be incorporated with her and the sixth respondent as directors. In cross examination, the fifth respondent initially said that she had filled out the application form to register the fourth respondent. However, after saying that she did not know whether she was a 30% shareholder, she said that it was not her hand writing or signature on the application form and that she had just gone to the registration office with the sixth respondent. Strangely, the application form was not signed but the fifth respondent is named as the applicant in a box above the box in which a signature should have appeared.
The fifth respondent said in her affidavit that at about the time the fourth respondent was incorporated, she caused the credit card merchant facility used at the two shops to be changed from Yi Li's Fashion Pty Ltd to the fourth respondent.
On or about 19 July 2005, the fifth respondent completed the form for the business name Yili Boutique to be registered in the name of the fourth respondent. In the form, the fifth respondent described the fourth respondent as the applicant. She gave the Centrepoint address as the address for service of notices on the fourth respondent and the address of the fourth respondent's principal place of business. In answer to the question, “Do you have other places of business?” the fifth respondent gave the address of the St Ives shop.
In the form, the fifth respondent gave her name as Eileen Dong and said that she could be contacted at the Centrepoint store. She said her daytime telephone number was the number of the Centrepoint store. The fifth respondent also said in the form that the fourth respondent intended to trade under the business name, Yili Boutique. In cross examination, the fifth respondent said that she could not actually be contacted at the Centrepoint store and she just filled in the form that way because Mr Jia had said that he had some problem with business registration and asked her to do it for him.
The fifth respondent said that she had had no involvement with Yili Boutique prior to April 2005. She said that, since April 2005, she had attended the shops once or twice a month to check the profit figures. She then said that she went once a month to check the figures. She said that, to check the figures, Mr Jia showed her a piece of paper with figures written on it. She said that she did not take a copy or write down what he told her. She said that she did not write any letters about what Mr Jia had told her but just remembered the figures.
The sixth respondent said that she agreed to pay the fifth respondent $600 per week or $30,000 per year to look over the books of Yili Boutique. (The minimum amount payable to the fourth respondent under the alleged agreement was $40,000 per year.) The sixth respondent said that part of the reason she paid the fifth respondent that money was because the fifth respondent was the ex-wife of the sixth respondent's husband and the mother of his daughter. The sixth respondent said that she did not pay the fifth respondent every week but when she did the payments were made in cash. The sixth respondent did not produce any record evidencing any payment to the fifth respondent by either the fourth or the sixth respondent.
The fifth respondent said that she last visited the shops to check the figures in February 2007. Since then, she said she has been unable to find Mr Jia. She said that she does not know who is running the shops now. She said the shops were still trading but under a different name. When asked what name they were trading under, the fifth respondent said she saw a sign in the city saying blocked for renovation. She then said that the shops were not trading and it looked like they had shut down. She then said that her answers were confined to the Centrepoint store and that she did not go to the St Ives store. Photographs were tendered by the applicants indicating that the Yili Boutique in Centrepoint had new premises one level down and was closed at the time of the hearing, apparently for a fit out.
When asked whether she was still receiving $600 per week from the sixth respondent, the fifth respondent said, “We have this agreement, but roughly it's the story, yes.” The fifth respondent said that she had not told the sixth respondent that the Centrepoint store had gone out of business because it was Mr Jia's problem as long as he paid the rent. She said that the sixth respondent paid her $600 per week “from her own kindness”. The fifth respondent denied having had any involvement with the garments the subject of this proceeding.
It is not disputed that counterfeit PianuraStudio garments were sold at the two Yili Boutiques in or around August 2006. On 31 August 2006, a receipt for a purchase of counterfeit PianuraStudio garments was issued in the name of “Yili's Boutique G32 C’POINT” and a credit card receipt for that purchase was issued in the name of the fourth respondent.
On 18 September 2006, Mr Watson, the solicitor for the applicants, sent a letter of demand to the fourth respondent at the Centrepoint shop. On 20 September 2006, Mr Watson received a telephone call from a person who identified herself as Eileen. She said that she had received the letter of demand. Eileen then went on to say that she would pass the letter on to her lawyers and they would provide a response by 1pm the same day. No response was forthcoming.
On 10 November 2006, the application in this proceeding was filed in Melbourne. The receipts issued on 31 August 2006 were exhibited to an affidavit sworn by Mr Watson on 18 December 2006. On

20 December 2006, an injunction was issued restraining the fourth respondent from, among other things, importing, offering for sale or selling any garment under or by reference to the name of PianuraStudio.
Geoffrey Lynch, a director of the second applicant, gave evidence that on 10 January 2007 he attended the Yili Boutique at Centrepoint and bought a counterfeit PianuraStudio garment which was sold in breach of the injunction issued on 21 December 2006. Mr Lynch gave evidence that there were two people working in the store. Mr Lynch said in oral evidence that he approached one of the two people working in the store and said, “May I speak to the manager?” The person said either that the manager is Elaine or Eileen and said that she is over there. In his affidavit, he had said that the manager was identified as Elaine. Mr Lynch said that he walked over to the person he was directed to and explained that he was the distributor for PianuraStudio garments in Australia and that an injunction had been issued against Yili Boutiques and that he would be contacting his lawyers. Mr Lynch said that the person said nothing in reply and looked completely shocked.
Mr Lynch gave evidence that the person he saw in the Centrepoint Yili Boutique on 10 January 2007 was one of the two women sitting in court and he identified her as the one on the left. That person is the fifth respondent.

In cross-examination, Mr Lynch maintained that the woman he had identified in court had been pointed out to him as the manager of the Centrepoint store on 10 January 2007. He said that at the time of swearing his affidavit, he had recollected that the manager had been named Elaine. He said that he could not recall if the other woman in the shop who he had spoken to was of oriental appearance. He said that he was sure he recognised the manager. He said he had spoken to Elaine or Eileen for a couple of minutes and saw her in the store about half an hour later when he went to check whether the counterfeit PianuraStudio garments had been removed from display.
On 15 January 2007, the fourth, fifth and sixth respondents filed an application asking that the proceedings in so far as they related to them be dealt with separately from the proceedings in relation to the first, second and third respondents and seeking that the proceedings be transferred to Sydney in so far as they related to the fourth, fifth and sixth respondents. In support of that application, Mr Junn, the solicitor for the fourth, fifth and sixth respondents, swore an affidavit on

15 January 2007 in which he said that:
1. … I have the care and conduct of these proceedings on behalf of the Fourth, Fifth and Sixth Respondents.
2.     I am authorised to make this affidavit in support of an application to be filed by the Fourth, Fifth and Sixth Respondents.
…
6.     The Fourth Respondent operates two retail stores in Sydney. …
…
7.     All of the witnesses for the Fourth, Fifth and Sixth Respondents in these proceedings reside in New South Wales. In particular, the officers, management, and staff of the Fourth Respondent reside in New South Wales. (emphasis added).

The fifth and sixth respondents did not file defences until 20 April 2007. The defences that were eventually filed made general denials. In its defence which was also filed on 20 April 2007, the fourth respondent denied the allegations in the statement of claim and said:
10(a) it does not operate the Yili Stores…; and
(b)its sole involvement in the business conducted by the Yili Stores is by virtue of an arrangement with the operators of the Yili Stores whereby the Yili Stores use a credit card merchant facility held by the fourth respondent to facilitate credit card purchases at the Yili Stores. (emphasis added)
On 4 May 2007, the fourth, fifth and sixth respondents filed a pleading summons. The application was listed for hearing on 18 May 2007. At about 4pm on 16 May 2007, a notice to produce documents at the hearing on 18 May 2007 was served on the fourth, fifth and sixth respondents. The documents required to be produced included all documents relating to the operation of the Yili Boutiques. No documents were produced at the hearing on 18 May 2007. Mr Junn swore an affidavit on 17 May 2007 saying that, after service of the notice to produce on 16 May 2007, he had tried to seek instructions from the fourth, fifth and sixth respondents. He then said, “As at the time of swearing this affidavit, I have not been able to establish contact with them the principals of which now reside in China.” (emphasis added).
On 18 May 2007, the applicants and the fourth, fifth and sixth respondents were ordered to file and serve their affidavits of documents, which were then overdue, on or before 25 May 2007. The application filed on 4 May 2007 and the further hearing of the notice to produce were otherwise adjourned to 30 May 2007. On 24 May 2007, the applicants filed a notice of motion returnable on 30 May 2007 seeking summary judgement against all of the respondents.
On 28 May 2007, the fifth respondent swore one affidavit of documents on behalf of the fourth respondent and another on her own behalf. The jurat in each case indicated that the affidavit was sworn on 28 May 2007 but did not say where it was sworn. The listed documents included a document described as “Document in Chinese” dated 7 April 2005 but no financial documents.
At the hearing of the summary judgement application on 30 May 2007, the fourth, fifth and sixth respondents chose not to adduce any affidavit evidence despite being given a further opportunity to do so. Instead, they argued that there were certain technical deficiencies in the claim including inadequate proof of the incorporation of the first applicant. The court reserved its decision.
On 31 May 2007, the applicants wrote to the court enclosing certain authorities and making certain submissions in relation to the proof of incorporation of a foreign company. By facsimile dated 5 June 2007, the court asked the fourth, fifth and sixth respondents to advise by 4pm on 6 June 2007 if they intended to make any submissions in response to the applicants’ letter and, if so, they were asked to do so by 4pm on

8 June 2007. No response was received by either of those dates.
On 12 June 2007, the parties were advised that judgment would be handed down the next morning. Also on 12 June 2007, an affidavit sworn on 8 June 2007 by Mr Junn was filed in the registry. It was delivered to my associate after the parties had been advised that judgment would be handed down the following morning.
Mr Junn swore in his affidavit that, “The respondents’ witnesses in relation to that Chinese document are all in China.” The affidavit exhibited a document in Chinese and an uncertified translation. The document and the translation both had the date 7 April 2005. The translation indicated that the document was an agreement approximately in the terms set out at paragraph 9 above.
In view of that document, the court did not hand down judgement on 13 June 2007, but gave the fourth, fifth and sixth respondents a further opportunity to file any affidavit evidence on which they wished to rely by 20 June 2007. On that date, an affidavit sworn by a Chinese-English translator exhibiting a certified translation of the Chinese document was filed. On 21 June 2007, the fifth and sixth respondents each filed an affidavit. On the basis of that evidence, summary judgment was not given against the fourth, fifth and sixth respondents. The matter proceeded to trial on 25 and 26 July 2007 in Sydney.
At the trial, the fourth, fifth and sixth respondents called only the fifth and sixth respondents as witnesses. There was, ultimately, no claim that the fifth respondent had lived in China at any material time. Nor was there any evidence from Mr Junn seeking to correct his claim that both principals of the fourth respondent lived in Sydney or the later claim that they both lived in China.
In evidence in chief, the sixth respondent said that since April 2005 she had visited the Centrepoint Yili Boutique once or twice a year. She said that she had met some of the staff there and thought their names were Nareen, Sharee and either Irene or Eileen.
The sixth respondent said that Mr Jia was the first to contact the solicitor, Mr Junn, and that she thought this occurred prior to Christmas 2006. The sixth respondent said that she first spoke to Mr Junn, the solicitor, on about 10 January 2007. The sixth respondent said that she gave Mr Junn instructions to say in his affidavit sworn on 15 January 2007 that the fourth respondent operates two retail stores in Sydney. However, she later said that she told Mr Junn when she first spoke to him in January 2007 that the fourth, fifth and sixth respondents did not operate the two Yili Boutiques. It is not suggested that the fourth respondent operated any other stores.
When asked if the fifth respondent ran the Yili Boutiques, the sixth respondent said she was not sure, maybe Mr Jia ran the shops, and maybe the fifth respondent ran the shops. She said that she had not spoken to Mr Jia since March 2007. She said that she did not provide the Chinese document to Mr Junn until about May 2007 although she had a copy of it with her in China.
The sixth respondent said that the fourth respondent had no business other than receiving 10% of the profits of the two Yili Boutiques or $40,000 per year, whichever was more. She said the fourth respondent was registered for GST but that she left it to Mr Jia to lodge business activity statements for the fourth respondent. Notwithstanding that a notice to produce required the fourth, fifth and sixth respondents to produce their business activity statements from 1 July 2002 onwards, they produced no such document relating to the period after April 2005.
The sixth respondent said that she thought Mr Jia might have lodged income tax returns on behalf of the fourth respondent. The sixth respondent said that a new bank account was opened for the receipt of the payments from the credit card facility in the name of the new company, namely, YL Image House Pty Ltd, the fourth respondent. However, notwithstanding that the notice to produce required the production of bank statements for all accounts operated by the fourth, fifth and sixth respondents, no bank statements for the new account were produced.
The sixth respondent said that, since April 2005, Mr Jia had paid her only once. She said he went to China and paid her the equivalent of about $A40,000 in cash in Chinese yuan. The sixth respondent said that she had not issued a tax invoice to Mr Jia but thought she might have a receipt for that payment in China. However, the sixth respondent did not discover or produce any such receipt.
Both of the fifth and sixth respondents said in their affidavits that they had not imported or manufactured any of the garments the subject of these proceedings nor had any dealings with those garments.
The sixth respondent said in oral evidence that prior to April 2005, the two Yili Boutiques generated a total net profit of about $110,000 per year. She said that her arrangement with Mr Jia was for him to pay her the higher of $20,000 per shop per year or 10% of the net profits of the two shops.
In evidence in chief, the fifth respondent gave her occupation as housewife. In cross-examination, the fifth respondent agreed that in her affidavit she had described herself as a business woman. She said this was a business matter and it sounded more reasonable to describe herself as a business woman. She said she had been a business woman in the past but was no longer.
She denied speaking to Mr Lynch on 10 January 2007 or having a conversation with anyone along the lines described by Mr Lynch. She said that the staff at the Centrepoint store have names like Elaine, Sheree and Nerine. She said most of the staff were Asian girls. One was Chinese, one was Mongolian and one was from Australia.
The fifth respondent denied that she had telephoned the applicants’ solicitor in response to the letter of demand in September 2006.
The fifth respondent said that she had never spoken to Mr Junn, the solicitor. When reminded that she swore an affidavit in front of him on 20 June 2007, she said that she had spoken to the sixth respondent. When asked whether she had ever met Mr Junn, the fifth respondent said she did not remember. When it was pointed out that he was sitting in court, she said she met him two days ago. She denied that she met him on 20 June 2007. However, when shown her affidavit, before whom it was purportedly sworn on that date, she said that Mr Junn was there when she signed it.
The fifth respondent denied ever having spoken to Mr Junn prior to

20 June 2007 by telephone or otherwise. The fifth respondent was shown ABW32, being a letter sent in January 2007 from Mr Junn to the applicants’ solicitor saying that his clients, being the fourth, fifth and sixth respondents, were now aware of the injunction. The fifth respondent said that was not correct.
The fifth respondent was shown ABW34, being a letter from Mr Junn dated 1 February 2007 which said, “we confirm that we act for the fifth and sixth respondents”. The fifth respondent said that she did not appoint him as her solicitor at that stage. She said that she appointed him on the date she swore her affidavit, being 20 June 2007.
The fifth respondent said that, although Mr Junn had filed a defence on her behalf on 16 April 2007, she did not ask him to do it and did not know that he was acting for her. She said there was absolutely no question that the first time she ever spoke to or saw Mr Junn was when she swore her affidavit on 20 June 2007. The fifth respondent was then shown her affidavit of documents sworn on 28 May 2007, apparently before Mr Junn. She said that Mr Junn was present when she signed it. She then agreed that she had seen Mr Junn before 20 June 2007.
The fifth respondent denied giving instructions to Mr Junn that she lived in China and confirmed that she lives in Sydney.
The fifth respondent said that the sixth respondent gave her some cash every time she came to Australia and sometimes bought her a present. The fifth respondent said that she was not too fussy about what the presents were worth. She said that she probably should declare the income to the tax office but did not remember and did not know whether she did. When asked whether she could not remember $30,000 a year, she said that she only received it a little bit at a time and it was like family support. She said that she did not declare the income in either her 2005 or 2006 income tax returns. The sixth respondent confirmed that she did not have any document recording the $600 per week payments.
The fifth respondent said that she did not know whether the fourth respondent was registered for GST or put in a tax return. She said that she knew that she was a director of the company and thought she was a 30% shareholder. She said she was not sure because she did not receive any shareholder's income.

Whether Mr Jia operated the two Yili Boutiques

Taking into account all of the evidence, I do not accept that the two Yili Boutiques were operated by Mr Jia for the following reasons.
I do not consider that the fifth respondent is a witness of truth. She denied having met Mr Junn at all, until it was pointed out to her that he was sitting in court. She then said that she had met him two days before the hearing, that is, on 23 July 2007. She denied having met him as early as 20 June 2007 until presented with her affidavit sworn on that date ostensibly before him. She then said that she had first met him on 20 June 2007. When she was shown her affidavit of documents sworn on 28 May 2007, apparently before Mr Junn, she admitted that she had in fact met him on that occasion.
The fifth respondent said in her affidavit that she caused the fourth respondent to be incorporated and said in oral evidence that she had filled in the application form. However, after being asked in cross examination about her shareholding in the fourth respondent, she denied that it was her handwriting on the application form. I do not accept that denial. I consider that the fifth respondent did complete the application form for the incorporation of the fourth respondent but sought to resile from her earlier affidavit and oral evidence in an effort to appear incapable of running a business.
The fifth respondent described herself as a business woman in her affidavit but in oral evidence gave her occupation as housewife. When asked about this, she said that at the time of swearing her affidavit, she simply thought it was more reasonable to describe herself as a business woman. However, she conceded somewhat vaguely that she had been a business woman in the past. I consider that in describing herself as a housewife the fifth respondent was attempting to portray herself as incapable of managing a boutique when in fact she did have business experience.
The solicitor, Mr Junn, said on oath on 15 January 2007, for the purposes of a change of venue application, that the fourth respondent operates two retail stores in Sydney. The sixth respondent, at one point, said that she had given Mr Junn instructions to say that. Mr Junn has never retracted that statement. The sixth respondent claimed that Mr Jia was the first to have engaged Mr Junn as a solicitor. If that were so, it would seem that he would have had a conflict of interest. It was submitted that the fourth, fifth and sixth respondents were simply disorganised and Mr Junn misunderstood his instructions or was misinformed. In view of all the other evidence in the case, I am unable to accept that construction of the events. I consider that Mr Junn's statement on oath on 15 January 2007 to the effect that the fourth respondent operates two retail stores in Sydney was truthful and the denials of that fact by the fifth and sixth respondents were untruthful.
The documentary evidence, other than the Chinese document, indicates that the fourth respondent did in fact operate the two Yili Boutiques. The application for registration as a company, which was filed one week after the date of the Chinese document, states that the fourth respondent occupied the Centrepoint premises. The application for the registration of a business name was filed about three months after the date on the Chinese document. The application form indicates that the fourth respondent intended to trade under the business name Yili Boutique, had its principal place of business at the Centrepoint store and another place of business at the St Ives store.
If the claims of the fourth, fifth and sixth respondents were to be believed, it would mean that false statements were made to ASIC and to the Office of Fair Trading. That of course is possible but, in view of the evidence as a whole, I consider that it is much more likely that the statements made in those documents were true. More particularly, I consider that the fifth respondent told the truth in the application for registration of a business name when she said that she could be contacted at the Centrepoint store and that her daytime telephone number was the telephone number of the Centrepoint store.
There are in evidence credit card receipts showing that Yili Boutique at the very least was trading on 10 January 2007. The fourth, fifth and sixth respondents sought to explain the credit card receipts in the name of Yili Boutique by saying that the merchant facility had been transferred from the defunct Yi Li's Fashion Pty Ltd to the fourth respondent and that a new bank account was opened in its name. If the claims of the fourth, fifth and sixth respondents were true, it may have been that Mr Jia would have been a signatory to the bank account of the fourth respondent or the bank records may have otherwise provided some verification of their claims. However, no bank records of the fourth respondent were produced, though presumably the directors of the fourth respondent would have had no difficulty in obtaining copies from the bank.
The fourth, fifth and sixth respondents argued that the fact that the Chinese document included as one of the contracting parties the defunct Yili's Fashion Pty Ltd added verisimilitude to the agreement. It was said that, if it had been intended to forge the agreement, it would have been put in the name of the fourth respondent. It was submitted that using the name of Yili's Fashion Pty Ltd demonstrated the general disorganisation and lack of attention to the strict legalities that seemed to be endemic to the fourth, fifth and sixth respondents in relation to this case. I accept that the fourth, fifth and sixth respondents may have lacked attention to detail but I do not consider that the use of the name Yili's Fashion Pty Ltd makes the agreement appreciably more credible. It seems to me that it was just a mistake.
Other than the Chinese document, no documentary evidence has been produced to substantiate the claims made by the fourth, fifth and sixth respondents. There is no record of any payment from the fourth or sixth respondents to the fifth respondent. There is no record of any payment from Mr Jia to the fourth respondent or the sixth respondent. It was said that these payments were in cash or, in the case of the payments to the fifth respondent, sometimes by way of gifts. In the light of the totality of the evidence, I am not prepared to accept that explanation.

It was said that Mr Jia may have lodged business activity statements and tax returns on behalf of the fourth respondent. If that were true, there is no reason to doubt that the Australian Taxation Office would have made available copies of the fourth respondent's business activity statements and the tax returns at the request of its directors. Such documents might have provided some verification of the role of Mr Jia as the operator of the Yili Boutiques, if that claim had been true. However, there was no suggestion that any such documents were sought by the fourth, fifth or sixth respondents and no such documents were produced by them.
Although it was initially claimed that the fifth respondent was paid $600 a week (or $30,000 per year) to check the books of Yili Boutique, the fifth respondent said that she was not given copies of any of the financial records and did not take any copies or make any notes. She said that Mr Jia simply wrote down the relevant figures on a piece of paper and showed them to her. She said that she did not write any letters, including, presumably, to the sixth respondent, setting out the profit figures of Yili Boutique. Especially in view of the other evidence in the case, I find it implausible that a person engaged to check the profit figures of a business entity would have made no record of those figures. Given that the amount allegedly payable to the fourth or sixth respondent depended on the actual amount of the profit figures, I find it implausible that a written statement of the monthly profit figures would not have been provided to the sixth respondent.
It was eventually said that the fifth respondent was paid $600 per week because of a familial relationship and from the kindness of the sixth respondent rather than for the purpose of checking the profit figures. I do not accept this claim. It differed substantially from the evidence that was given first and, because of the terms of the alleged agreement with Mr Jia, it is likely that someone would have needed to check the profit figures. I consider that this claim was an attempt by the fifth respondent to paint herself as a financially unaware housewife rather than as a business woman who was capable of checking profit figures, and, indeed, operating a business.
The claim that the fourth respondent did not operate Yili Boutiques did not emerge until quite late in the history of this litigation. The fourth, fifth and sixth respondents argued that the relatively late claim that the fourth respondent did not operate the business and the relatively late provision of the Chinese document should not be construed as being indicative of recent invention. The fourth, fifth and sixth respondents, it was said, did not purport to produce all relevant documents at an early stage and then produced the Chinese document at a later stage.
A letter of demand was sent to the fourth respondent on 18 September 2006. One of its directors, namely, the fifth respondent, was resident in Sydney. If the fourth respondent had not operated the Yili Boutiques, it could have been expected that the fourth respondent would have said so in September 2006. Instead, the solicitor for the fourth respondent swore an affidavit on 15 January 2007 saying that he was authorised to say that the fourth respondent operated two shops in Sydney.
The fourth, fifth and sixth respondents then took some technical pleading points, disputed the incorporation of the first applicant and declined to file evidence on oath in answer to a summary judgement application until the last possible moment. While it seems to be accepted by the applicants that the sixth respondent has been resident in China, and that may have made it somewhat difficult for her to give instructions, the fifth respondent was resident in Sydney at all material times. In any event, the sixth respondent claimed to have had a copy of the agreement with Mr Jia with her in China. There is no reason that she could not have faxed it to Mr Junn when she says that she first spoke to him on about 10 January 2007. In all the circumstances, the failure of the fourth, fifth and sixth respondents to promptly claim that the fourth respondent did not operate the Yili Boutiques reinforces my view that the claim is not true.
I am not persuaded that Mr Jia exists. The only evidence of his existence emanates from the fifth and sixth respondents. Apart from their assertions, the only evidence of Mr Jia’s existence is what purports to be his signature on the Chinese document. However, that signature was not witnessed. There is, accordingly, no independent person to verify that a person of Mr Jia’s name signed the document.
Neither the fifth nor the sixth respondent gave evidence of any efforts that she had made to locate Mr Jia. The fifth respondent said that she had been to the Centrepoint store in about March 2007 and noticed that it had a sign indicating that renovations were taking place. However, she also said that she had not been to the St Ives store, where it may have been possible to locate Mr Jia, or at least some employees of the business who could have confirmed that Mr Jia operated the Yili Boutiques if that had been true.
The sixth respondent said that Mr Jia had been a family friend for over 15 years. She said that she last spoke to him in March 2007. However, there was no suggestion that the sixth respondent had attempted to contact him at his home address or through his other friends or associates. Additionally, the sixth respondent might, for example, have known the contact details of suppliers who could have given evidence that they had dealt with Mr Jia. The tenants of neighbouring shops could presumably have said that they had regularly seen a person answering Mr Jia’s description at the two Yili Boutiques. There was no evidence along those lines and no indication of any effort to obtain any such evidence.
Nor was there any suggestion that Mr Junn had undertaken any of the usual searches to locate a potential witness. While it may be that Mr Jia would have been uncooperative, the complete lack of effort to locate Mr Jia or anyone who might have been able to verify that he operated the business, and the complete lack of effort to subpoena Mr Jia or his records, suggest that the fifth and sixth respondents did not in truth expect to find any evidence of him because they do not believe that he actually exists or that he operated the Yili Boutiques.
It was submitted that it was for the applicants to track down Mr Jia as he was not in the camp of the fourth, fifth and sixth respondents. However, it is the case of the fourth, fifth and sixth respondents that Mr Jia operated the business. It was for them to substantiate that claim with whatever evidence they could muster. It may be that if Mr Jia had been subpoenaed, he would have been a hostile witness. If so, he could have been cross-examined. Alternatively, he might have told lies or refused to answer questions on the grounds of self-incrimination. We will never know because no subpoena was issued to him.
In any event, I expect that there would have been other ways of establishing the role of Mr Jia, such as with tax office records, bank records, records from suppliers, or the evidence of employees or the tenants of neighbouring shops. Nothing at all was done to substantiate the existence of Mr Jia. In all circumstances, I do not accept that he exists, or, if there is a person with his name, I do not accept that he operated the Yili Boutiques.
It was submitted by the fourth, fifth and sixth respondents that Mr Lynch's identification of the fifth respondent in court was inherently unreliable. It was noted that there was evidence that other people working in the store had names similar to Eileen and were of Asian origin. It was also submitted that the fact that Mr Lynch changed his evidence from saying that the person identified as the manager was named Elaine to saying that she was named Eileen added to the doubts the court should feel about his evidence. If it were not for my views about the other evidence, particularly that Mr Jia did not operate the Yili Boutiques, and that the fifth respondent has not been truthful, I might have been inclined to accept those submissions. However, in the light of my other findings, I accept that Mr Lynch did in fact accurately identify the fifth respondent as the person who was pointed out to him as the manager of the Centrepoint store.
As I do not accept that Mr Jia operated the Yili Boutiques, and as no other option has been put forward, I find that the fourth respondent operated the Yili Boutiques at all material times. I find that the fifth respondent was the manager of the Yili Boutiques at all material times in view of:
a)the sixth respondent’s evidence that either Mr Jia or the fifth respondent ran the Yili Boutiques;
b)Mr Lynch's evidence that the fifth respondent was pointed out to him as the manager of the Centrepoint store on 10 January 2007;
c)the evidence of Mr Watson that a person by the name of Eileen telephoned him in answer to the letter of demand;
d)the fact that the fifth respondent was a director and 30% shareholder of the fourth respondent;
e)the statement in the application for the registration of the business name that the fifth respondent could be contacted at the Centrepoint store;
f)my conclusion that the fifth respondent has been untruthful; and
g)the totality of the evidence.
I accept the evidence of the sixth respondent that she took up residence in China in about April 2005. I consider that the sixth respondent entered into an agreement with the fifth respondent in early April 2005 whereby the fifth respondent was to manage the two Yili Boutiques in return for 30% of the profit, commensurate with her shareholding in the fourth respondent.

Whether the alleged misconduct was put to the fifth and sixth respondents

It was put to the sixth respondent that:
I suggest to you that this shows that the whole arrangement that you are telling the court about now is rubbish, it didn't happen?
I suggest to you that what has actually happened here is there is no arrangement with Mr Jia and what has happened is you are paying Ms Dong to operate the shops for you?
What I am suggesting to you is that you have tried to give an impression in this defence that the company only provides a credit card facility and it is not true; do you agree with that?
It was put to the fifth respondent that:
I suggest to you that what actually happens is that when Ms Yili went back to China you took over the management of these two stores and you continue to do so?
And I also suggest to you that you are well aware of the stock that is in the stores and that the PianuraStudio garments that were purchased from the stores are illegal copies?
And I suggest to you that on the day in January when Mr Lynch came into the store and asked to speak to the store manager, he spoke directly to you?
In view of these questions, Browne v Dunn is no obstacle to a finding that the fourth respondent engaged in the misconduct. It is also no obstacle to a finding that the fifth respondent was knowingly concerned in or party to the misconduct and engaged in it herself. It was put to her that she was well aware that the PianuraStudio garments bought from the Yili Boutiques were illegal copies.
However, it was not put to the sixth respondent that she had any knowledge of the misconduct. The rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 as follows:
unless notice has already clearly been given of the cross- examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence…(emphasis added)
In the present case, the pleadings made it clear that the sixth respondent was alleged to have been knowingly concerned in the misconduct of the fourth respondent. However, by the time of the trial, the sixth respondent had given evidence that she had been living in China since April 2005. This evidence was apparently accepted by the applicants. It seemed at trial that the applicants did not actively rely on the allegation in the statement of claim that the sixth respondent had been knowingly concerned in the misconduct, although that was maintained in submissions at least as a formal position.
In the circumstances, I do not think that notice had already clearly been given of the cross examiner's intention to rely upon the allegation that the sixth respondent was knowingly concerned in the misconduct and I do not consider that that allegation had been otherwise put to the sixth respondent. However, in any event, for the reasons set out below, I do not consider that there is any proper basis upon which I could find that the sixth respondent was knowingly concerned in the misconduct.

Whether the fourth, fifth or sixth respondents engaged in the alleged misconduct

It was not disputed that the conduct alleged, if carried out by the fourth respondent, would have constituted a breach of the TPA and the tort of passing off. I find that the fourth respondent did offer for sale and sell counterfeit PianuraStudio garments at its two Yili Boutiques at times including August 2006 and January 2007 and in doing so breached s.52 and s.53 of the TPA and committed the tort of passing off. These findings are based on:
a)the findings made above;
b)the fact that the fourth, fifth and sixth respondents did not dispute the substance of the case against them except by claiming that the fourth respondent did not operate the Yili Boutiques and I have rejected that claim; and
c)the oral evidence of Geoffrey Lynch and the affidavits sworn by:
i)
the applicants’ solicitor, Anthony Watson, on 18, 19 and

20 December 2006 and 17 and 28 May 2007;
ii)
Geoffrey Lynch, a director of the second respondent, on

15 January 2007 and 29 May 2007; and
iii)
Karin Blomquist, a director of a fashion distributor, on

22 February 2007.
However, it was also alleged that the fourth respondent imported counterfeit PianuraStudio garments. That seems to me to be a reasonable suspicion. However, no evidence was produced at trial to support that allegation. In the circumstances, I see no basis for a finding that the fourth, fifth or sixth respondent imported counterfeit PianuraStudio garments.
I also see no basis for a finding that the sixth respondent engaged in misleading and deceptive conduct or made a false representation contrary to s.42 or s.44(e) or (f) of the FTA. The sixth respondent appears to have been living in China at all material times. Although she came to Australia for some visits, and admits that she attended the Yili Boutiques about twice a year, there is nothing to suggest that she was involved in the day to day conduct of the stores or had any detailed awareness of the stock on sale or its provenance or was involved in making any representations to anyone about the counterfeit garments.
However, for the reasons given in relation to the next issue, I consider that the fifth respondent did engage in conduct in breach of s.42 and s.44(e) and (f) of the FTA.

Whether the fifth and sixth respondents were knowingly concerned in the alleged contravention or aided, abetted, counselled or procured the alleged contravention

To the extent that the applicants articulated a case against the sixth respondent, it was that it would be proper to infer that the sixth respondent was knowingly concerned in, or aided, abetted, counselled or procured, the misconduct of the fourth respondent because the fourth respondent was a small company with only two directors who were obliged to know what the company was doing. I consider this is an insufficient basis to draw an inference that the sixth respondent had actual knowledge of, or aided, abetted, counselled or procured, the misconduct of the fourth respondent. Notwithstanding the obligation on directors to know what their company is doing, it is well-known that directors are sometimes deceived by their co-directors.
In this particular case, the sixth respondent was living in China at all material times. It seems to me to be inherently unlikely in such circumstances that the sixth respondent would have known about the day-to-day running of the business of the fourth respondent or its sale of counterfeit goods simply as a result of being a director. It is of course possible that the sixth respondent engineered the whole illegal enterprise from China. However, there is no significant evidence to support that theoretical possibility. In all the circumstances, I am not prepared to find that the sixth respondent was knowingly concerned in or party to, or aided, abetted, counselled or procured, the contraventions by the fourth respondent.
On the other hand, I have found that the fifth respondent managed the two Yili Boutiques at all material times. Based on the application for registration of the business name, I find that the fifth respondent could be routinely contacted at the Centrepoint store. As the fifth respondent was the manager of the Yili Boutiques, and as they were quite a small business, I infer that the fifth respondent ordered all of the stock for sale in the Yili Boutiques. I infer that the fifth respondent ordered the counterfeit PianuraStudio garments from someone other than their authorised distributor knowing them to be counterfeit. I find that the fifth respondent was knowingly involved in, and was party to, and aided, abetted, counselled or procured the fourth respondent's contraventions of the TPA.

Whether the incorporation of the first applicant has been proved

The fourth, fifth and sixth respondents did not admit in their defences that the first applicant was incorporated in Italy. Accordingly, it was necessary for the applicants to establish the incorporation of the first applicant. The applicants relied upon a statement in the affidavit of Anthony Brooke Watson sworn on 18 December 2006 that, "the first applicant is an Italian company and owner of the brand of clothing sold under the ‘PianuraStudio’ label around the world.”
The applicants also relied on authority which was said to show that the statement from the affidavit of Mr Watson set out in the previous paragraph was sufficient to prove the first applicant's incorporation in Italy. That authority was Murine Eye Remedy Co v Eldred [1926] VLR 425, H v Schering Chemicals (1983) 1 WLR 143 and Pearce v Button (1986) 65 ALR 83.
Reference was also made to s.190(3) of the Evidence Act1995 which permits the court to waive certain rules of evidence in relation to proof of documents. More particularly, certain rules of evidence may be waived if the matter to which the evidence relates is not genuinely in dispute or the application of the relevant provisions would involve unnecessary expense or delay. In deciding whether to waive the rules of evidence, without limiting the matters that may be taken into account, the court is required by s.190(4) to take into account:
a)the importance of the evidence in the proceeding;
b)the nature of the cause of action or defence and the nature of the subject matter of the proceeding;
c)the probative value of the evidence; and
d)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
In Murine, Dixon AJ in the Supreme Court of Victoria, held that the rules of that court permitted a judge to allow a foreign corporation to prove the fact of its incorporation at trial by an affidavit on information and belief “made by some person who swears he has made all proper inquiries, and stating the sources of his information, and exhibiting such documents as he may rely upon.” In the present case, Mr Watson has not sworn that he has made all proper inquiries, or stated the sources of his information or exhibited any documents concerning the first applicant's incorporation.

Nevertheless, in Pearce v Button (1986) 65 ALR 83, at 97, Lockhart J considered the effect of Order 33 rule 3 of the Federal Court Rules 1979 which is in similar terms to s.190(3) of the Evidence Act1995. His Honour said:
I see no reason why [the rule] should be read down. It should be construed according to its ordinary and natural meaning. … its essential object is to facilitate the proof of matters which are not central to the principal issues in the case. The rule is not confined to dispensing with the rules of evidence to facilitate the proof of merely formal matters, but a judge should be slow to invoke it where there is a real dispute about matters which go to the heart of the case.
In terms of s.190(4), I consider that the evidence about the incorporation of the first applicant is not particularly important in the proceeding in the sense that it does not go to the central or principal issues in the case although it may have an impact on the quantification of damages. The subject matter of the proceeding is counterfeit garments, the cause of action is misleading and deceptive conduct and passing off and the defence is a story that has been almost entirely rejected. The probative value of admissible evidence of the incorporation of the first applicant is not great given that the incorporation of the first applicant is a largely peripheral matter in the context of this proceeding. The court could of course have adjourned the hearing to enable the applicants to obtain admissible evidence of the incorporation of the first applicant but in my view this would have been disproportionate to the benefit to be obtained.
I do not consider that the incorporation of the first applicant is genuinely in dispute in the sense that it could not seriously be doubted that the first applicant has been incorporated. It seems to me that the fourth, fifth and sixth respondents are simply taking a technical point and that they have no reason to doubt that the first applicant has been incorporated. There would obviously have been some expense involved in obtaining admissible evidence of the incorporation of the first applicant and in my view even a small expense would be disproportionate to the benefit of obtaining evidence admissible under the usual rules.
All in all, I am prepared to waive strict compliance with the rules of evidence in relation to the incorporation of the first applicant.

I acknowledge that the evidence of Mr Watson can barely be described as evidence on information and belief. However, in view of the fact that the incorporation of the first applicant is not central to the case and cannot seriously be doubted, I find that the first applicant is a company incorporated in Italy.

Conclusion

There will be declarations and injunctions reflecting these reasons. Additionally, there will be procedural orders for the quantification of damages or an account of profits. I will hear counsel on the question of costs.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Melissa Gangemi

Date: 14 July 2007