Ebbeck v Neridovsky

[2005] NSWSC 780

CITATION:	Ebbeck v Neridovsky [2005] NSWSC 780
HEARING DATE(S):	18, 19 and 21 Apil 2005
JUDGMENT DATE :	2 August 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	(1). I order that there be judgment for the Defendants against the Plaintiffs in the sum of $250,000. (2). I order that there be judgment for the Plaintiffs against the Defendants in the sum of $250,000. (3). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs.

CATCHWORDS:	Contract. Specific performance of deed. Parties entitled to judgment against each other for $250,000. Stay of execution upon judgment until party breaches terms of deed. Whether parties or either of them is in breach of deed. Commercial or marketing strategy or other transaction. Business name. Requirement for registration.
LEGISLATION CITED:	Business Names Act 2002 (Commonwealth)
CASES CITED:	Amev-UDC Finance Limited v Austin (1986) 162 CLR 170 Dunlop Tyre Company Limited v New Garage and Motor Company Limited [1915] AC 79
PARTIES:	GREGORY ALLEN EBBECK and KERRIE JEAN EBBECK (Plaintiffs) JOHN IVAN NERIDOVSKY and ALLA NERIDOVSKY (Defendants)
FILE NUMBER(S):	SC 4276/01
COUNSEL:	Mr. C. Leggat (Plaintiffs) Mr. A. Gruzman (Defendants)
SOLICITORS:	Elrington Boardman Allport (Plaintiffs) Mark Evans (Defendants)

LOWER COURT JURISDICTION:

- 23 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 2 August 2005

4276/01 - GREGORY ALLEN EBBECK and ANOR – v – JOHN IVAN NERIDOVSKY and ANOR

JUDGMENT

1 HIS HONOUR: At the conclusion of a contested hearing Young CJ in Eq on 16 September 2002 granted relief, by way of declaration and specific performance, in respect to a deed into which the parties had entered on 24 May 2002 in settlement of a dispute between them. His Honour’s order, which was entered on 29 October 2003, included, as order 3, an order that either party might approach the Master for directions as to the implementation of the orders for specific performance.

2 Subsequently the Defendants John Ivan Neridovsky and Alla Neridovsky, on 24 February 2004 filed a notice of motion by which they sought the following substantive relief,

1. Judgment be entered for the Defendants against the Plaintiffs in the sum of $250,000.
2. The stay of proceedings created by Clause 17 of the Deed entered into between the parties on 12 April 2002 be removed.
3. The Court declare that the Plaintiffs have engaged in commercial or marketing strategy or other transaction using the name Doonbiddie in breach of the agreement reached between the parties on the 12th April 2002.

3 On 9 March 2005 the Plaintiffs, Gregory Allen Ebbeck and Kerrie Jean Ebbeck, filed a notice of motion by which they sought the following substantive relief:

1. Judgment be entered in accordance with covenants numbered 15, 16 and 17 contained in Deed dated 12th April 2002 made between Defendants of the first part and the Plaintiffs of the second part.
2. Declaration that the Defendants have engaged in a commercial or marketing strategy or other transaction using the name “Doonbiddie” in breach of the covenants of the said Deed.
3. Order that the Plaintiffs are at liberty to enforce the judgment in their favour against the Defendants.

4 It is those notices of motion which have come before me for hearing.

5 (I would here interpolate that the subject Deed was executed by the Plaintiffs on 12 April 2002, but may not have been executed by the Defendants on that date. Subsequently an original counterpart duly signed and executed by the Defendants was dated 24 May 2002. The Plaintiffs between 12 April 2002 and 24 May 2002 asserted that they were not bound by the Deed which they had executed on the earlier date. It was that assertion which gave rise to the proceedings in which Young CJ in Eq delivered judgment on 16 September 2002. Apart from the dates which they bear, the two documents are identical.)

6 It may possibly be argued that the effect of the foregoing order 3 made by Young CJ in Eq is to vest the Master with all jurisdiction to deal with the matter. Nevertheless, from an abundance of caution, an order was on 21 December 2004 made by Simpson J, sitting as Vacation Judge, that the whole of the proceedings be heard by a Master.

7 It will be appreciated that the order for specific performance of the Deed included orders in respect to the following clauses of the Deed:

14. It is the intention of the parties that neither party use the name or prefix “Doonbiddie”, “Doonbiddie Genetics”, “Doonbiddie Poll Herefords” or “Doonbiddie Poll Hereford Stud”.
15. To facilitate the parties intentions the parties agree that judgment be entered in favour of the Neridovskys against the Ebbecks in the sum of $250,000.00
16. The parties agree that judgment be entered against the Neridovskys and in favour of the Ebbecks in the sum of $250,000.00
17. That enforcement of the judgment referred in Clauses 15 and 16 above be stayed until one or other of the parties either personally or as an officer of a corporation or director or shareholder of a corporation engages in a commercial or marketing strategy or other transaction using the name or prefix Doonbiddie, Doonbiddie Poll Herefords, Doonbiddie Genetics or Doonbiddie Poll Hereford Stud. Where herein used the word “name” shall mean a name registered or required to be registered under the Business Names Act and the word “prefix” shall have the meaning ascribed to that word by the regulations of the Australian Poll Hereford Society.

8 Nevertheless, neither the Plaintiffs nor the Defendants have exercised their respective rights under the Deed to enter judgment against the opposing parties in the sum of $250,000.

9 Each of the notices of motion which is presently before me for hearing seeks judgment for the moving parties in the sum of $250,000.

10 However, it would appear that no further order of the Court, beyond the order for specific performance made by Young CJ in Eq on 16 September 2002, is required to entitle the Plaintiffs and the Defendants respectively to enter judgment against the other parties in the sum of $250,000.

11 Upon a strict construction of the terms of the Deed, the appropriate procedure would have required the Plaintiffs to have entered judgment against the Defendants in the sum of $250,000 and to have consented to a stay of execution upon that judgment, and for the Defendants to have entered judgment against the Plaintiffs in the sum of $250,000 and to have consented to a stay of execution upon that judgment. The present applications would then appropriately have been an application by the respective parties for a dissolution of the foregoing stay of execution upon the judgement against such parties.

12 Nevertheless, neither party has raised any objection to the procedure which has been adopted, that the Court should entertain an application by each party for the entry of judgment against the opposing parties in the foregoing sums. More appropriately, however, as I have already observed, each of the parties should, pursuant to the order of Young CJ in Eq of 16 September 2002, have entered judgment against the opposing parties and the present application to the Court should have been for the dissolution of the stay of execution upon such judgments.

13 I shall, however, proceed in accordance with the procedure adopted by the parties.

14 It is asserted by each of the parties that the opposing parties have breached clause 17 (relating to the engaging in a commercial or marketing strategy or other transaction of the nature described in that clause), with the consequence that the stay contemplated by clause 17 no longer be in effect; or, accepting the procedure which the parties have chosen to adopt, that each party is entitled to enter judgment against the opposing parties in the foregoing sum of $250,000.

15 At the hearing the parties were in agreement that it was appropriate that the totality of the evidence in respect to each of the two notices of motion should be presented to the Court and that all such evidence should be treated as being presented in respect to each of the two notices of motion.

16 The Defendants (whose notice of motion was anterior in time to that of the Plaintiffs) assert that the Plaintiffs, in the terms of clause 17 of the Deed, had engaged in “a commercial or marketing strategy or other transaction” using the name Doonbiddie. The Defendants relied upon the following matters alleged in respect to the conduct of the Plaintiffs as activating the provisions of clause 17 of the Deed.

Ownership of Registered Business Name, “Doonbiddie Genetics”

17 The Plaintiffs were the owners of the registered business name, “Doonbiddie Genetics”, which had been first registered on 17 July 2001, and which continued to be maintained by them up to and including at least 1 April 2003. It is asserted by the Defendants that the Plaintiffs were carrying on business under that name.

Sign Outside Plaintiffs’ Property

18 It was the evidence of Christian Michael Allen that on 28 July 2002 he was driving a motor vehicle along Mount Rankin Road, Mount Rankin, when he saw a sign containing the words, “Doonbiddie The Ebbeck Family”. A photograph of that sign and of a contemporaneous daily newspaper dated 28 July 2002 was in evidence as annexure A to Mr. Allen’s affidavit. That sign was erected on a tree in close proximity to the entrance driveway to the rural estate of the Plaintiffs at 131 Mount Rankin Road and in view of the residence of the Plaintiffs upon that estate.

The Land newspaper

19 An article published in The Land newspaper on 13 June 2002 contains a photograph of the Plaintiffs (and another person), the caption to such photograph being as follows,

Multiple buyer at the Moorlands Hereford dispersal, Greg Ebbeck, Doonbiddie Wonderview Poll Hereford stud, Bathurst (left), is pictured with his wife Kerrie and Michael Glasser of Elders VP, Albury.

This article is under the bold heading, “Moorlands sale reaps $1.15m”.

The Bulls of the Breed 2002

20 In the publication, The Bulls of the Breed 2002, is a page headed, “International Link Sire for the World Hereford Genetic Evaluation Program”, appearing above a photograph of an animal, with details under that photograph including (what is apparently the name of the animal), “Doonbiddie Hustler”. Amongst the other details the following appears under the name “Doonbiddie”,

Greg & Kerrie Ebbeck

131 MT. Rankin Rd.

Bathurst, NSW

Australia 2795

Phone: [phone]

Fax: [phone]

The details shown on that page and beneath the photograph of the bull include, “From the Doonbiddie Program… a program that has been producing superior genetics for the Polled Hereford World for over 25 years”.

Website of the Australian Poll Hereford Society

21 The website of the Australian Poll Hereford Society Limited contains the following extract under the classification, “Poll Hereford Member Details”, in respect to the heading “Doonbiddie”

Prefix: Doonbiddie

Identifier: B1248

Membership Type: Life

Name: DOONDIDDIE

Address: 1025 O’CONNELL PLAINS ROAD
THE LAGOON
BATHURST NSW
Postcode: 2795

Telephone: [phone] Claude

02 6337 1808 GREG

0418 286 661 GRE (Mobile)

02 6337 1806 (Fax)

Herd Letters: EFF

Society: APHS

Heifer Show, August 2002

22 At a heifer show held in August 2002 Elisha Faith Ebbeck, who is a daughter of the Plaintiffs, entered a cow in the name Ebbx Doonbiddie Joybelle. The name EBBX DBW 4J JOYBELLE W10 was registered with the Australian Poll Hereford Society.

Advertisement in Poll Hereford Annual 2002

23 The first Plaintiff in late 2001 placed a prominent advertisement, including the word “Doonbiddie”, for publication in the Poll Hereford Annual 2002.

24 The Plaintiffs (whose notice of motion was subsequent to that of the Defendants) assert that the Defendants, in the foregoing terms of clause 17 of the Deed, had also used the name “Doonbiddie”.

25 The Plaintiff relied upon the following matters alleged in respect to the conduct of the Defendants as activating the provisions of clause 17 of the Deed.

Ownership of Registered Business Name, “ Doonbiddie Poll Hereford”

26 From 12 April 2002 until 24 January 2003 the Defendants maintained the registered business name, “Doonbiddie Poll Hereford”.

Advertising Signs

27 From 12 April 2002 until 5 May 2002 the Defendants maintained two large advertising signs bearing what was referred to as a Poll Hereford logo and incorporating the words “Doonbiddie” and “Poll Herefords” at their rural estate, Apsley Downs. One sign was located at the main entrance to that estate and another was located near the eastern boundary thereof.

Poll Hereford Show: Buckets and Blower

28 On 24 August 2003 the Defendants permitted various chattels, being water buckets, feeding buckets (also referred to as feeding bins) and a blower bearing the name “Doonbiddie” to be displayed at the Poll Hereford Show conducted at the Hawkesbury Showground.

29 Evidence was given in respect of the foregoing assertions made respectively on behalf of the Defendants against the Plaintiffs and on behalf of the Plaintiffs against the Defendants.

30 It will be necessary, in due course, that I examine the evidence offered by the respective parties concerning each of those assertions and the denials or explanations offered concerning each such assertion.

31 I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.

32 It will be appreciated that the asserted breach of clause 17 of the Deed is constituted not merely by one or other of the parties using the name or prefix Doonbiddie, Doonbiddie Genetics or Doonbiddie Poll Hereford Stud. Clause 17 contains a number of elements. Breach of that clause requires that the conduct complained be conduct by such party either personally or as an officer of a corporation or director or shareholder of a corporation; that the conduct be engaged in in a commercial or marketing strategy or other transaction; and that the conduct consist of the using of one or more of the specified names or prefix. Each of the words “name” and “prefix” is defined in clause 17.

33 It will be seen therefore that the mere use of the identified name or prefix is not conduct proscribed by clause 17. Rather, considerably more is required to constitute a breach of that clause, namely, engaging in a commercial or marketing strategy or other transaction, and, in so doing, using the name or prefix, where the name is a name registered or required to be registered under the Business Names Act 2002, and where the prefix has the meaning ascribed to that word under the regulations of the Australian Poll Hereford Society Limited.

34 It was submitted on behalf of the Plaintiffs that in the circumstances where it is alleged that there has been contravention by one or other of the parties of clause 17 of the Deed, it is appropriate to construe that clause as operating only when strict compliance with the terms of the clause arises, and, in particular, when there is strict compliance with that part of clause 17 which limits the conduct by reference to the Business Names Act or to the definition of “prefix” in the regulations of the Australian Poll Hereford Society Limited. In this regard the Plaintiffs rely upon the decision of the House of Lords in Dunlop Tyre Company Limited v New Garage and Motor Company Limited [1915] AC 79 at 86-88 per Lord Dunedin and Amev-UDCFinanceLimited v Austin (1986) 162 CLR 170. The Plaintiffs further submitted that in arriving at the proper construction of clause 17 it is appropriate to presume that the parties intended that there would be an element of proportionality between the conduct giving rise to the payment of $250,000 and the actual damage arising from such conduct.

35 I shall now proceed to consider the various matters alleged by each party in respect to the conduct of the other party as activating the provisions of clause 17 of the Deed. I shall deal firstly with the allegations of the Defendants concerning the conduct of the Plaintiffs.

Ownership of Registered Business Name, “Doonbiddie Genetics”

36 It was not in dispute that the Plaintiffs were the owners of the registered business name “Doonbiddie Genetics”, from 17 July 2002 until at least 1 April 2003.

37 However, it was the evidence of Gregory Allen Ebbeck (to whom I shall refer as “Mr. Ebbeck”) that there had never been any use of that business name. Mr. Neridovsky accepted in cross-examination that the mere holding or ownership of a business name did not amount to the conducting of a business.

38 I am not satisfied that the conduct of the Plaintiffs in merely owning the registered business name, “Doonbiddie Genetics” throughout the foregoing period constituted a breach of clause 17 of the Deed.

Sign Outside Plaintiffs’ Property

39 The Plaintiffs did not dispute that a sign of the nature appearing in the photograph Exhibit 3 was nailed to a tree in close proximity to the entrance to the Plaintiffs’ estate in Mount Rankin Road, Mount Rankin. Evidence filed on behalf of the Plaintiffs themselves clearly established that the sign was attached to the tree by Mr. Ebbeck’s octogenarian father, Mr. Claude Ebbeck, in the presence of Mr. Ebbeck in about June or July 2002 (see affidavit of Michael James Todd, 12 December 2004). In addition, under cross-examination, Mr. Ebbeck’s daughter, Miss Elisha Faith Ebbeck, said that it was her grandfather who “put up the sign”. It was the evidence of Mr. Ebbeck that at the relevant period his father, although residing in Bathurst, maintained a workshop upon the Plaintiffs’ property, where he was present on most days. No evidence was offered by Mr. Claude Ebbeck concerning his conduct in respect to the sign. However, it is abundantly clear that the erection of the sign was effected with the co-operation and consent of the Plaintiffs.

40 The sign remained in place until it was removed shortly after 16 September 2002, upon the decision of Young CJ in Eq as to the efficacy of the Deed.

41 The Plaintiffs attempted to excuse their conduct in respect to the sign, and submitted that the erection of the sign could not, or should not, activate the provisions of clause 17 of the Deed. They relied upon the fact that it was not Mr. Ebbeck personally who nailed the sign to the tree, but that it was his father, and suggested that there was no evidence that Mr. Claude Ebbeck was acting as Mr. Ebbeck’s employee or at the direction of Mr. Ebbeck, and that, in such circumstances it could not be said that Mr. Ebbeck was “engaging” in the proscribed conduct. As I have already observed, the affidavit of Mr. Todd, filed on behalf of the Plaintiffs, expressly identifies Mr. Ebbeck as being present during the conversation between Mr. Todd and Mr. Claude Ebbeck and reveals that the sign was transported in Mr. Todd’s utility through the front gate of the Ebbeck estate to a tree near the roadway, upon which tree the sign was then attached by Mr. Claude Ebbeck. I am entirely satisfied that the attachment of that sign to the tree outside the entrance to the Ebbeck estate was conduct in which the Plaintiffs engaged.

42 It was suggested on the part of the Plaintiffs that Mr. Claude Ebbeck had, arguably, some form of legal or equitable interest in the prefix “Doonbiddie”. Whether or not he did have such an interest (and he gave no evidence to assert such an interest), that fact, even if established, does not in any way detract from the conduct of the Plaintiffs in regard to the sign.

43 It was also submitted on behalf of the Plaintiffs that Mount Rankin Road is not a through road and carries no traffic other than that of local residents.

44 It must be appreciated that upon their rural estate the Plaintiffs maintain Poll Hereford cattle and that such cattle are maintained by them in the course of their business enterprises.

45 It is a logical (indeed, the only) inference that the sign was intended to advertise the commercial activities of the Plaintiff regarding their cattle. It is immaterial that there may have been fewer persons passing by the sign than there would have been had the sign been erected on a busy highway.

46 I am satisfied that the conduct of the Plaintiffs in allowing the sign to be erected and in allowing the sign to remain in place for a period of two or three months had the purpose of advertising the name “Doonbiddie” in association with the Plaintiff’s business. I am satisfied that that conduct constituted the engaging by the Plaintiffs in a commercial or marketing strategy or other transaction using the name “Doonbiddie”.

47 It was, however, submitted on behalf of the Plaintiffs that even if the sign was part of a commercial or marketing strategy of the Plaintiffs, the conduct did not come within the other limbs of clause 17, in that the use of the sign did not fall within the circumstances requiring registration under the Business Names Act. The Plaintiffs did not hold the business name “Doonbiddie”, and it was submitted that they did not operate a business under that name; nor did they carry on a business in such a manner as to be required by the Business Names Act to register it under the name “Doonbiddie”.

48 I can see no reason or purpose in the use by the Plaintiffs of the name “Doonbiddie” appearing above the words “The Ebbeck Family” unless it be to suggest that the Ebbeck family was conducting a business under that name. If so, then by section 4(1) of the Business Names Act the Plaintiffs were under a legal obligation that the business name should be registered in their names.

49 I am satisfied that the foregoing conduct of the Plaintiffs in respect to the sign “Doonbiddie The Ebbeck Family” constitutes conduct of the nature proscribed by clause 17 of the Deed.

The Land newspaper

50 There was nothing to suggest that the Plaintiffs were in any way responsible for the photograph appearing the The Land newspaper on 13 June 2002 or for the wording of the caption thereunder or the heading thereover. Mr. Ebbeck said that he had not seen the photograph or the article wherewith it was published until he saw them annexed to Mr. Neradovsky’s affidavit of 13 December 2003. I do not consider that the published matter complained of can in any way constitute conduct of the nature proscribed by clause 17 of the Deed. Whether or not the Plaintiffs sought to have the caption corrected is irrelevant to whether or not what was published contravenes the provisions of clause 17.

The Bulls of the Breed 2002

51 The relevant entry appearing in the publication The Bulls of the Breed 2002 prominently displays the contact details of the Plaintiffs in advertising a champion “Doonbiddie” bull.

52 It is quite apparent that this advertisement constitutes a commercial or marketing strategy using the name “Doonbiddie”, not only in the contact details of the Plaintiffs appearing under that name, but also in association with the animal “Doonbiddie Hustler” (illustrated on that page), and in association with the reference to the “Doonbiddie Program” appearing on that page.

53 In regard to this alleged contravention of clause 17, it is relevant that an asset of the partnership which had formerly obtained between the Plaintiffs and the Defendants was the membership in the Australian Poll Hereford Society Limited in the name “Doonbiddie”. The advertisement complained of clearly arrogated to the Plaintiffs the benefit of a partnership asset in a commercial or marketing strategy or other transaction using that name. There is no suggestion that the permission of the receiver, who had been appointed to the partnership on 31 August 2001 by order of the Court, had been either sought or obtained in respect to the Plaintiff’s use of the prefix and name and partnership asset. It was the evidence of Mr. Ebbeck that the booking deadline for this publication was around late November 2001, that date, however, being a date well after the appointment of the receiver.

54 I am satisfied that the conduct complained of in respect to this publication constituted conduct of the nature proscribed by clause 17 of the Deed.

Website of the Australian Poll Hereford Society Limited

55 It was submitted on behalf of the Defendants that, since Mr. Ebbeck was the authorised signatory in respect to member No. B1248 shown in the records of the Poll Herefore Society between 12 April 2002 and 10 June 2004 and since, in accordance with the regulations of that Society, Mr. Ebbeck was the only person authorised to alter the records of the Society and the information reflecting those records which was appearing on the Society’s website, his failure to effect an alteration of the details associated with the name “Doonbiddie” leads to the inference that there was a commercial or marketing strategy on the a part of the Plaintiffs in not altering those records.

56 However, Mr. Neridovsky in cross-examination conceded that the prefix “Doonbiddie” was a partnership asset. It follows, that after the appointment of the receiver, in August 2001, it was the receiver who had the control of that asset. Mr. Ebbeck under cross-examination said, in effect, that there was nothing that he could have done about the use of that prefix in the records of the Society after the partnership was placed in receivership on 31 August 2001. It was also the evidence of Mr. Ebbeck that he was not even aware of the existence of the Society’s website, and that he did not own or work a computer.

57 I am not persuaded that after the partnership was placed in receivership Mr. Ebbeck had authority to require the Australian Poll Hereford Society to effect any alteration to its website in respect to the name “Doonbiddie”. The responsibility in that regard lay primarily with the receiver.

58 In those circumstances, therefore, the fact that the name “Doonbiddie” appeared on the Society’s website in association with contact details of the Plaintiffs does not in my conclusion constitute conduct proscribed by clause 17 of the Deed.

Heifer Show, August 2002

59 The daughter of the Plaintiffs, Miss Elisha Ebbeck, entered in a Heifer Show held in August 2002 a cow in the name EBBX Donbiddie Joybelle. It was Miss Ebbeck’s evidence that this name was made up by her. Nevertheless, she said that at that time she was aware that the name “Doonbiddie” could not be used.

60 There was, however, at that time no registration or pending registration of a heifer of that name. Subsequently, however, the name EBBX DBW 4J Joybelle W10 was registered on 4 December 2002.

61 On behalf of the Defendants it was submitted that Miss Ebbeck should not be believed in her evidence that the name under which she entered the heifer at the August show was a name which had been made up by her. It was submitted on behalf of the Defendants that that conduct was a commercial or marketing strategy by the Plaintiffs using the name “Doonbiddie”.

62 Nevertheless, there is no evidence that the Plaintiffs were, in fact, aware of the conduct of their daughter in this regard. It must be appreciated that at the relevant time Miss Elisha Ebbeck was aged only fourteen.

63 I am not persuaded that this conduct of Miss Elisha Ebbeck constituted conduct on the part of the Plaintiffs of the nature which was proscribed by clause 17 of the Deed.

Advertisement in Poll Hereford Annual 2002

64 Mr. Ebbeck in late 2001 placed a prominent advertisement, which included the word “Doonbiddie”, in the Poll Hereford Annual 2002. In this regard, he said in cross-examination that he was entitled to use the name “Doonbiddie” after August 2001, when that name became the property of the receiver.

65 It was submitted on behalf of the Defendants that the foregoing conduct of Mr. Ebbeck was contrary to what he had said in his affidavit that he had decided not to use the name “Doonbiddie” after August 2001. Further, it was submitted that that conduct was also contrary to Mr. Ebbeck’s description of the value of the name of “Doonbiddie”, in saying that it “stinks about the industry” and that the name was “mud”. Further, that it was contrary to his efforts to purchase that name from Deloittes (the receiver’s firm) for a substantial sum, quite apart from his continued use of the name in association with his own name and contact details in The Bulls of the Breed 2002 and the Poll Hereford Annual 2002.

66 It was submitted on behalf of the Defendants that the advertisement in the Poll Hereford Annual 2002, like the entry in The Bulls of the Breed 2002, constituted a commercial or marketing strategy by the Plaintiffs which was in contravention of clause 17 of the Deed. For reasons similar to those in respect to The Bulls of the Breed 2002, I am satisfied that the conduct complained of in respect to the Poll Hereford Annual 2002 constituted conduct of the nature proscribed in clause 17 of the Deed.

67 It will be appreciated from the foregoing that of the various breaches of clause 17 of the Deed asserted by the Defendants to have been committed by the Plaintiffs, I consider that the evidence establishes that such breaches were committed only in respect to the sign placed outside the property of the Plaintiffs and in respect to the publication Bulls of the Breed 2002. The other instances of breach asserted by the Defendants were not established by the evidence.

68 I pass now to consider the breaches which the Plaintiff allege were committed by the Defendants.

Ownership of the Registered Business Name, “Doonbiddie Poll Hereford”

69 From 12 April 2002 until 24 January 2003 the Defendants maintained the registered business name “Doonbiddie Poll Hereford”.

70 It was the evidence of Mr. Neridovsky that this business name was not used. Mr. Ebbeck himself in his evidence said that he did not remember the Neridovskys using the name “Doonbiddie” as a trading name.

71 As in the case of the ownership by the Plaintiffs of the registered business name, “Doonbiddie Genetics”, I am not satisfied that the conduct of the Defendants in merely owning the registered business name “Doonbiddie Poll Hereford” throughout the foregoing period constituted a breach of clause 17 of the Deed.

Advertising Signs

72 From 12 April 2002 until 5 May 2002 the Defendants maintained two large advertising signs at their rural estate, Apsley Downs. Those signs bore what was referred to as a Poll Hereford logo and incorporated the words “Doonbiddie” and “Poll Herefords”. One sign was located at the main entrance to Apsley Downs and the other sign was located near the eastern boundary of that property.

73 The Defendants advertised and conducted a sale of Poll Hereford cattle from Apsley Downs on 13 May 2002. It was submitted on behalf of the Plaintiffs that that sale was the reason why the signs appeared outside the Defendants’ property throughout the foregoing periods, and that those signs were part of a marketing strategy of the Defendants for the purposes of that sale.

74 However, it was the evidence of Christian Michael Allen, on behalf of the Defendants, that the signs adjacent to or upon Apsley Downs had the word “Doonbiddie” obliterated by him by means of spray paint at about, but before, the date of the Deed, 12 April 2002. It was the evidence of Mr. Neridovsky that on 20 April 2002 he checked the signs, and saw that the name “Doonbiddie” had been sprayed over, in accordance with the direction in this regard which he had previously given to Mr. Allen.

75 Nevertheless, it was the evidence of Mrs. Karen Bernadette Reid, who at the relevant time was residing with her family near Apsley Downs, that her son Timothy celebrated his seventeenth birthday on 5 May 2002. Mrs Reid had a clear recollection that on that date she and Timothy drove into O’Connell, to purchase supplies for that birthday celebration. On their way to O’Connell they passed Apsley Downs, where Mrs. Reid saw near the main entrance to that property a large advertising sign on which there was the logo of the Australian Poll Hereford Society (consisting of the head of a Poll Hereford bull) and the words “Poll Hereford” and the word “Doonbiddie”. She saw an identical sign near the eastern boundary of Apsley Downs. It will be appreciated that Timothy Reid’s birthday was some three weeks after the date of the Deed, 12 April 2002, and after the date when Mr. Allen said that he had obliterated the word, “Doonbiddie” appearing on the foregoing advertising signs.

76 Mr. Allen under cross-examination insisted that he had a very strong recollection that the spray painting took place before the date of the Deed, and that it was not possible that it had taken place some time later in the year, saying that he had a very strong recollection of making sure that everything was done before the Deed was signed. Nevertheless, Mrs. Reid’s recollection was based upon an occasion concerning the date of which it would be unlikely for a mother to be mistaken in her memory, being the occasion of the birthday of her son. In regard to the obliteration of the word “Doonbiddie” upon the two advertising signs located on Apsley Downs, I prefer the evidence of Mrs. Reid, that that word still remained upon those signs on 5 May 2002. It follows that in respect to those signs the Defendants were in breach of clause 17 of the Deed.

Poll Hereford Show: Buckets and Blower

77 There was considerable evidence given on behalf of the respective parties as to whether or not the buckets and blower which were used by the Defendants at the Poll Hereford Show conducted at the Hawkesbury Showground on 24 August 2002 displayed the word “Doonbiddie”.

78 It was the evidence of Mr. Allen, on behalf of the Defendants, that he had obliterated that word from each of the foregoing utensils shortly after he had obliterated that word from the advertising signs located on Apsley Downs. That evidence was supported by Jeremy McLean Kensit, who said that he had assisted Mr. Allen to obliterate the name “Doonbiddie” appearing on the buckets. It was the evidence of various witnesses, on behalf of the Plaintiffs, being Mrs. Reid, Todd Robert Clements, his sister Aimée Jean Clements, Stephen Jason Sutherland and Miss Elisha Ebbeck, that they had seen the word “Doonbiddie” on those utensils at the Show.

79 It will be appreciated that it is for the Plaintiffs to establish that the word “Doonbiddie” was actually displayed upon the foregoing utensils at the Show on 24 August 2002. It was apparent that none of the foregoing witnesses was deliberately attempting to mislead the Court. Nevertheless, upon the balance of probabilities it appears likely that the word still remained upon the utensils at the time of the Hawkesbury Show.

80 Accepting, however, that the word did appear upon those utensils, the size, positioning and nature of the lettering of the word so appearing, and the location of the utensils themselves, clearly establish that the name had originally been placed upon the utensils for the purpose of identifying ownership on the part of the Defendants, and not for the purpose of being part of a commercial or marketing transaction or enterprise (for example, by way of advertising their activities). Even if the name had not been obliterated, as Mr. Allen in his evidence asserted that it had been, the mere fact that the name remained for the purpose of identifying those utensils as belonging to the Defendants would not of itself bring the presence of those utensils at the show at the Hawkesbury Showground within the conduct proscribed by clause 17 of the Deed.

81 In summary, therefore, I am satisfied that the conduct of the Plaintiffs in respect to the sign on the tree outside their property, and the conduct of the Plaintiffs in respect to the advertisement in The Bulls of the Breed 2002 and in respect to the advertisement in the Poll Hereford Annual 2002 each constituted conduct of the nature proscribed by clause 17 of the Deed. I am satisfied that the conduct of the Defendants in respect to the advertising signs at Apsley Downs constituted conduct of the nature proscribed by clause 17 of the Deed.

82 It follows, therefore, that, accepting the procedure adopted by the parties, the Defendants are entitled to relief of the nature sought in their notice of motion, that is, that there be judgment for the Defendants against the Plaintiffs in the sum of $250,000; further, that the Plaintiffs are entitled to relief of the nature sought in their notice of motion, that is, that there be judgment for the Plaintiffs against the Defendants in the sum of $250,000.

83 I note that during the course of the hearing the Plaintiffs requested that they have an opportunity to make submissions in respect to costs in the light of my decision upon the substantive claims of the parties. Such an opportunity will be given to the Plaintiffs.

84 I make the following orders:

(1). I order that there be judgment for the Defendants against the Plaintiffs in the sum of $250,000.

(2). I order that there be judgment for the Plaintiffs against the Defendants in the sum of $250,000.

(3). I stand the matter over to a date to be fixed by arrangement with my Associate for argument as to costs.

**********