Metstech Pty Ltd v Park - [2022] NSWSC 1667

Supreme Court

New South Wales

Medium Neutral Citation: Metstech Pty Ltd v Park [2022] NSWSC 1667
Hearing dates: 6 – 27 May 2022; final submissions 22 July 2022
Date of orders: 5 December 2022
Decision date: 17 November 2022
Jurisdiction: Equity - Commercial List
Before: Rees J
Decision:
Parties to bring in short minutes to give effect to these reasons, see [676].

Catchwords:
CONSPIRACY TO INJURE BY UNLAWFUL MEANS – electronics engineers and funder establish company to develop new products – designer is employee and shareholder – shareholder agreement imposes obligations for trade secrets and confidential information – Taiwanese manufacturer engaged – products launched and gain international interest – directors fall out over money – funder jettisoned from board and bank accounts – funder open to buy out – fellow directors prefer to ‘phoenix’ – raise false invoice by designer – register false security interest – appoint administrator without notice – set up new company without funder – continue to exploit company’s products and customer base – funder proposes deed of company arrangement (DOCA) – directors frustrate DOCA – delete data – ‘warehouse’ trademark and domain name – revoke shareholders agreement – release designer from obligations – assert products designed by Taiwanese manufacturer all along.
COPYRIGHT – mining telecommunications – employee designs electronic devices – related company claims R&D grant – employee claims Taiwanese manufacturer undertook design work – use of ODMs and OEMs – employer seeks delivery up of PCB assemblies, schematics and documentation – employee denies works exist – expert evidence and contemporaneous documents suggest otherwise – principles at [554]-[566] – copyright vests in employer – copyright not assigned to related company – orders made for delivery up.
COPYRIGHT – software – software developer writes software for no fee and becomes employee and shareholder – implied licence – exclusive licence –whether changes after became employee were “original” at [616]-[618] – licence included right to alter software at [227]-[230], [621]-[623] – licensee entitled to delivery up of source code.
TORT – conspiracy to injure by unlawful means – damages the gist of the action at [650]-[659] – plaintiffs do not plead or adduce evidence of damage – fusion fallacy – conspiracy claim fails on this basis.
CORPORATIONS – oppression – Corporations Act 2001 (Cth), ss 232, 233 – minority shareholder entitled to buy-out majority shareholders.
CONFIDENTIAL INFORMATION – TRADE SECRETS – shareholders agreement imposes duties of confidentiality – directors and employee also bound by equitable obligations of confidence – company entitled to delivery up, damages and/or account.

Legislation Cited:
Circuit Layouts Act 1989 (Cth)
Copyright Act 1968 (Cth), ss 10, 32(1), 29(1)(a), 35, 131A(1), 131C, 131D, 196
Corporations Act 2001 (Cth), ss 232, 233, 437A, 437D
Court Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(a)
Evidence Act 1995 (NSW), s 140(2)
Income Tax Assessment Act 1997 (Cth), div 355
Industry Research and Development Act1986 (Cth), s 27A
Judiciary Act 1903 (Cth), s 39(2)

Cases Cited:
Aardwolf Industries LLC v Riad Tayeh [2020] NSWSC 299
AB v Curry (No 3) [2015] NSWSC 1677
Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 37 IPR 542
AG Australia Holdings Limited v Burton [2002] NSWSC 454; (2002) 58 IPR 327
Anacon Corp Ltd v Environmental Research Technology Ltd [1994] FSR 659
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636
Ausmart Services Pty Ltd (In Liq) v Zheng [2019] FCA 2162
Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297; [2011] FCAFC 151
Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd [2002] FCA 528
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
BCI Finances Pty Ltd (In Liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227
Beck v Montana Constructions Pty Ltd (1963) 5 FLR 298
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Briginshaw v Briginshaw (1938) 60 CLR 336
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Centrestage Management Pty Ltd v Riedle (2008) 170 FCR 298; [2008] FCA 938
Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184
Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587
Commissioner of Taxation v Iannuzzi (No 2) [2019] FCA 1818
Dais Studio Pty Ltd v Bullet Creative Pty Ltd (2007) 165 FCR 92; [2007] FCA 2054
David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294
EdSonic v Cassidy (2010) 189 FCR 271; [2010] FCA 1008
F45 Training Pty Ltd v Body Fit Training Company Pty Ltd [2020] NSWSC 1879
Fatimi Pty Ltd v Bryant [2004] NSWCA 140
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672
Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWSC 453
Gruzman Pty Ltd v Percy Marks Pty Ltd (1989) 99 FLR 116; (1989) 16 IPR 87
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
HT v R (2019) 269 CLR 403; [2019] HCA 40
IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458; [2009] HCA 14
In the matter of Anna Bay Resort Pty Ltd [2022] NSWSC 331
International Furnaces Ltd v Reaves [1970] RPC 605
Jones v Dunkel (1959) 101 CLR 298
JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20; (2016) 329 ALR 625
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173
Lumen Australia Pty Ltd v Frontline Australasia Pty Ltd [2018] FCA 1807; (2018) 137 IPR 189
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101
Milltec Australia Pty Ltd v Burnes [2006] NSWCA 13
Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692; (1987) 5 ACLC 222
Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 389-90; [1993] HCA 66
N P Generations Pty Ltd v Feneley (2001) 80 SASR 15; [2001] SASC 185
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281
Re a Company (No 00709 of 1992); O’Neill v Phillips [1999] 2 All ER 961; [1999] UKHL 24
Redrock Holdings Pty Ltd v Hinkley [2001] VSC 91; (2001) 50 IPR 595
Ronchi v Portland Smelter Services Ltd [2005] VSCA 83
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd [2018] QSC 98
Slea Pty Ltd v Connective Services Pty Ltd(No 9) [2022] VSC 136
Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) 194 FCR 142; [2010] FCAFC 149
Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310
University of Sydney v Objectivision Pty Ltd [2019] FCA 1625; (2019) 148 IPR 1
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
Victoria University of Technology v Wilson [2004] VSC 33; (2004) 60 IPR 392
Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459
Wilson v Basson [2020] NSWSC 512
Wright Prospecting Pty Ltd v Hamersley Iron Pty Ltd (No 3) [2013] NSWSC 1069
Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458; (2012) 299 ALR 621

Texts Cited:
Bently, Lionel, et al, Intellectual Property Law (5th ed, 2018, Oxford University Press)
Brennan, David, Copyright Law (2021, Federation Press)
Ricketson, Staniforth and Chris Creswell, Law of Intellectual Property (2001, Thomson Reuters)
van Caenegem, William, et al, Intellectual Property in Australia (7th ed, 2022, LexisNexis)
van Caenegem, William, Intellectual and Industrial Property Law (3rd ed, 2019, LexisNexis)
Wigmore, John Henry, Wigmore on Evidence (3rd ed., 1940, Little, Brown and Co.)

Category: Principal judgment
Parties: Metstech Pty Ltd (First Plaintiff)
Auxilia Holding Pty Ltd as trustee for the Auxilia Holding Trust (Second Plaintiff)
Chad Jefferson (Third Plaintiff)
Auxilia Investments Pty Ltd (Fourth Plaintiff)
John Geldhart Park (First Defendant)
Old Name Pty Ltd (Second Defendant)
Chung-Chieh Chou (Third Defendant)
Welldesign Electronics Pty Ltd (Fourth Defendant)
Tracy Ann Sibthorpe (Fifth Defendant)
Graeme Corbett (Sixth Defendant)
Chlobo & Bluey Pty Ltd as trustee for the Super Dooper Super Fund Corbett Family (Seventh Defendant)
Christopher Martin (Eighth Defendant)
CMS Family Investments Pty Ltd (Ninth Defendant)
Rorque Poisson (Tenth Defendant)
Metstech (Trading) Pty Ltd (Eleventh Defendant)
10Telco Pty Ltd (Twelfth Defendant)
Metstech IP Pty Ltd (Thirteenth Defendant)
Representation:
Counsel:
Mr A Fernon SC / Mr D Meyerowitz-Katz (First, Second, Third, Fourth Plaintiffs)
Ms D Woods (First, Second, Eight, Ninth Defendants)
Mr V Bedrossian SC / Mr H Zhao (Third, Fourth Defendants)
Mr R Poisson (In Person) (Tenth, Eleventh Defendants)
Solicitors:
SWS Lawyers (Plaintiffs)
Sessions Legal (First, Second, Eighth, Ninth Defendants)
Broaden Legal (Third, Fourth Defendants)

File Number(s): 2020/290942
Publication restriction:
Pursuant to the order of the Court of 17 November 2022, this judgment was supressed in its entirety until further order: see [675].
On 7 December 2022, this judgment was published as revised, removing references to confidential information and trade secrets: see [677]. The unrevised judgment continues to be subject to the suppression order of 17 November 2022.

Judgment

SUMMARY
PARTIES, WITNESSES AND DOCUMENTS
ONUS AND INFERENCES
INTRODUCTION TO THE TECHNOLOGY
Leaker feeder systems
Designing an electronic device
Using ODMs and OEMs
WHAT HAPPENED
Metstech
Designing new products: splitter and BDA
Leaving it to third parties?
Mr Chou becomes full-time employee
Metstech IP
Design process continues
Mr Chou quits temporarily
Successful test of BDA
Jefferson becomes largest shareholder
First product launched: BDA
Yokao
Development of headend
Developing software
Successful demonstration of leaky feeder system
R&D application
Mr Corbett joins Metstech
Use a design house?
Moving to manufacture
Customer interest
Maths box
Further R&D grant
Partnering with Challenge
Software licence?
Shareholders Deed of Agreement
Manufacture underway
Orders coming in
A successful pilot
Mr Chou gets licences in order
SA distributor and MineCo
Second offer to Martin
ChampWin
Software problems
Offer from Challenge
Working on firmware
Share issue to Martin
Martin employed by Metstech
Trademark application
Martin gets shares in return for software?
Amy Cheng
Disharmony among directors
G Suite account
A trip to Taiwan
Jefferson removed from bank accounts
Jefferson removed as managing director
US Co
Disclosure of ODM?
Potential buy-out of Jefferson
Calling in a ‘fixer’
Challenge loses patience
A false invoice and security interest
A ‘snap’ voluntary administration
Moving data
Phoenix activity
A conspiracy?
First creditors meeting and Newco
A DOCA proposal
Deleting data
Administrator’s views
Attempt to thwart DOCA proposal
Second creditors meeting
‘Warehousing’ the trademark and domain name
Administrator’s warning
Getting Chou ‘away’ safely
Phoenixing continued
Completion of data deletion
Deed of Company Arrangement
These proceedings
WHO OWNS THE COPYRIGHT?
Metstech products and documentation
Principles
Consideration
Metstech or Metstech IP
Software
TRADE SECRETS AND CONFIDENTIALITY
Shareholders agreements
Equitable obligations
Consideration
Equitable defence
CONSPIRACY TO INJURE BY UNLAWFUL MEANS
OPPRESSION
Principles
Consideration
Remedy
COSTS
ORDERS
ADDENDUM

Judgment

HER HONOUR: The first plaintiff, Metstech Pty Ltd, designs and distributes telecommunications systems for use in underground mines. The thirteenth defendant, Metstech IP Pty Ltd, was intended to hold the intellectual property.
The plaintiffs contend that copyright in Metstech’s products is, in fact, held by Metstech. Further, the defendants – being former directors and employees of Metstech and their corporate entities or advisers – were involved in a tortious conspiracy to injure the plaintiffs and Metstech IP by unlawful means, by transferring the business and assets of Metstech and Metstech IP to other entities with the intention that the plaintiffs would hold a lesser or no interest in the "Metstech" business and the plaintiffs’ loans to the companies would not be repaid. The plaintiffs also seek equitable remedies in respect of the defendants’ breach of their obligations of confidence, either under the shareholders agreements for Metstech and Metstech IP or generally.
The central factual dispute is whether – as the plaintiffs contend – Metstech’s products were designed by its employee, and thus it holds the copyright. The employee in question, the third defendant, Chung-Chieh (Jason) Chou, denies this. Thus, a particularly granular analysis of the contemporaneous documents is required, which does not make for easy reading. To assist, a brief summary of this judgment follows.

SUMMARY

The first defendant, John Park, is an electronics engineer. Through his work in communication systems in mines, Mr Park met electronic engineers, Phil Clifton and Mr Chou. They considered that the technology in use was outdated and had ideas as to how it could be modernised. Mr Park saw a business opportunity and turned to the third plaintiff, Chad Jefferson, to provide funding. Mr Park also sought to bring a software developer, the eighth defendant, Christopher Martin, into the business. Mr Martin was not then interested but was willing to write software if needed. Metstech was formed. As Mr Clifton later stated, “We believe that this will be the next major evolution in underground construction communications … Jason and I have been dreaming about creating this product for many years. We are finally in a position to make it happen.”
As a general manager of the new company, Mr Park proceeded to run the business with a degree of informality which is now unhelpful. In particular, there were no contracts of employment nor contracts between Metstech and other companies which worked with Metstech to develop its products.
Key to developing Metstech’s products was employee, Mr Chou, of whom Mr Clifton later stated, “Jason is the finest telecommunications/RF Engineer I have ever met or had the pleasure to work with and gratefully learn from”. Mr Chou designed Metstech’s products. Mr Chou was reimbursed for expenses such as components and software by rendering invoices from his family company, Welldesign Electronics Pty Ltd, to Metstech. Welldesign is the fourth defendant and then a shareholder in Metstech and Metstech IP. Mr Park offered Mr Chou additional financial returns by way of manufacturing rights, although this does not appear to have been further discussed or finalised. Rather, an informal practice developed whereby Mr Chou billed Metstech for manufactured products through Welldesign at a mark-up.
Mr Martin developed software for Metstech on a speculative basis. In March 2018, Mr Jefferson was keen to complete the software development but Mr Martin was then preoccupied with other business and legal problems. He provided Mr Jefferson with the source code so that Metstech could use the software and alter it if needed to achieve the desired result. Mr Martin had no involvement in the software development for almost a year, before he re-engaged with Metstech. In July 2019, Mr Martin became an employee of Metstech and continued to update and revise the software.
In 2018, shareholders agreements were executed for Metstech and Metstech IP. These imposed confidentiality obligations on the shareholders and directors, including Mr Park, Mr Chou and Welldesign. These obligations continued to bind the shareholders until they unanimously agreed to terminate the agreements or the company was wound up or its business or all shares were sold. Absent these circumstances, a shareholder continued to be bound by confidentiality after ceasing to be a shareholder.
Over five years, Metstech designed and developed its products with the financial support of Mr Jefferson and, in later years, Challenge Networks Pty Ltd, which had agreed to pay $750,000 for 20% of the shares in both companies. When Challenge insisted on paying the manufacturer directly rather than Welldesign, invoices were rendered by ChampWin Technology Co Ltd instead. Whilst this company was thought to be the manufacturer, it was another family company of Mr Chou. Mr Chou now says that both Welldesign and ChampWin were the ‘front’ for another Taiwanese company, Yo Kao Technology Co Ltd, who in fact designed Metstech’s products.
Metstech’s products began to receive substantial interest from Australian and overseas companies. The tenth defendant, Rorque Poisson, was a business consultant later brought in by Mr Park; he was told by two customers – a large telecommunications company and a major mining company – that the Metstech system was “the best on the planet”.
As the financial constraints on Metstech began to ease with the receipt of substantial orders, disharmony emerged amongst the directors. Directors other than Mr Jefferson sought a salary ‘catch up’. Mr Jefferson resisted this until his loans to the company were repaid. Mr Jefferson’s loans to the companies then stood at some $700,000. Mr Park removed Mr Jefferson from the companies’ bank accounts without warning and staged a ‘coup’ at a board meeting, replacing Mr Jefferson as managing director.
Challenge Networks also became impatient to complete its acquisition of shares and to have a director appointed to the board, having already outlaid the bulk of the share price to fund Metstech’s operations. Mr Park made enquiries to resolve the difficulties posed by Mr Jefferson and Challenge by placing Metstech into administration and pursuing the development and sale of Metstech’s products through a new company with an American customer (US Co). The palpable ingratitude of Mr Park is difficult to overlook: Metstech had been funded – and he had been paid a salary – for three years by Mr Jefferson and, more recently, by Challenge. When the hard graft of design and development was largely behind them, with “blue sky” ahead, Mr Park had no qualms in ‘ditching’ those who had made that possible.
Mr Park approached Mr Poisson and plans were hatched. At Mr Park’s suggestion, Welldesign raised a false invoice to Metstech for some $246,000. Mr Poisson registered a false security interest over the assets of Metstech, with a view to giving Welldesign the ability to wind up the company and free the shareholders from restrictions in the shareholders agreement in respect of trade secrets and confidential information.
With 45 minutes notice, Mr Martin called a meeting of directors and Metstech was placed into voluntary administration. Despite the administrator’s warnings, the directors other than Mr Jefferson continued to deal with Metstech’s clients and make plans to sell Metstech’s products through new companies, including Metstech (Trading) Pty Ltd. Metstech Trading was incorporated by Mr Poisson, who stood to prosper from these plans. In seeking to enlist Mr Chou and his wife’s support in this new venture, Mr Park proposed that the new company would licence intellectual property from Welldesign, this being the first suggestion that intellectual property rights did not belong to Metstech.
Challenge and Mr Jefferson funded a deed of company arrangement (DOCA), which Mr Park, Mr Corbett, Mr Chou and Mr Martin sought to frustrate. At a meeting of directors of Metstech IP, they purported to invalidate the shareholders agreements of both companies. They deleted Metstech’s data. The trademark and domain name of Metstech IP was ‘warehoused’ with a colleague of Mr Poisson’s, with a view to the trademark and domain name being used by the new company. More specifically, Mr Smith of 10Telco raised a false invoice to Mr Corbett’s company, which Mr Corbett paid. Mr Smith used these funds to buy the domain name and trademark. Mr Poisson prepared the documents.
In order to protect Mr Chou and Welldesign from claims which may be brought in respect of intellectual property rights, Mr Chou resigned as a director of Metstech IP and sold his shares to Mr Martin and Mr Corbett. At a meeting of Metstech IP convened on an hour’s notice, Metstech IP purported to resolve to execute a deed of release with Mr Chou and Welldesign, releasing them from the confidentiality obligations imposed under the shareholders agreements.

After entry into the DOCA, Mr Park and his colleagues continued to pursue their plans to exploit Metstech’s technology and products in a new company. Metstech Trading registered a similar domain name and applied for a trademark with a similar logo. Discussions continued with Metstech’s customers, including seeking their investment in the proposed new corporate arrangements. These efforts continued even after commencement of these proceedings and interlocutory injunctions. The defendants now say that Mr Chou did not design Metstech’s products. In any event, they contend that the products are not unique but derivative and Metstech’s information and documents are not confidential, nor for that matter in their possession.
In the result, I am satisfied that the plaintiffs are entitled to most, but not all, of the relief that they seek. Mr Chou designed Metstech’s products and prepared the associated documentation to enable the products to proceed to manufacture. The disputed works must have been created and insofar as they are original literary or artistic works (or both) and to the extent that they still exist, the employer owns them. Mr Chou created such works in the course of his employment, with the consequence that copyright in the works vests in the employer, Metstech. Copyright in the software, however, continues to vest in Mr Martin, subject to an exclusive licence to Metstech to use and alter the software. The defendants are obliged to deliver up the copyrighted work. Given the terms of the software licence, Mr Martin is obliged to deliver up the source code.
The contractual obligations in the shareholders agreements continue to apply, together with equitable obligations of confidence, entitling the plaintiffs to injunctive relief and, at their election, either an account of profits or damages. Given the oppressive conduct of the affairs of Metstech IP, a buy-out order is appropriate, entitling Mr Jefferson to buy-out Mr Park and Mr Martin. The tortious claim of conspiracy, however, fails for want of evidence of pecuniary loss.

PARTIES, WITNESSES AND DOCUMENTS

The third plaintiff, Chad Jefferson, is a surveyor and businessman. He is a director of Metstech and Metstech IP. Mr Jefferson is also a director and shareholder of the second plaintiff, Auxilia Holding Pty Ltd, and the fourth plaintiff, Auxilia Investments Pty Ltd. Auxilia Holding is a shareholder in Metstech and Metstech IP while Auxilia Investments is a creditor of both companies, having effectively ‘bank rolled’ their operations in the early years.
Mr Jefferson gave evidence and was cross-examined. He was keen to answer questions and did so in an open and clear manner, making reasonable concessions. Mr Jefferson appeared to have a good recollection of events and was unshaken in any material respect. I accept his evidence.
The plaintiffs also relied on the evidence of Graeme Corbett. Through his company, Chlobo & Bluey Pty Ltd, Mr Corbett was a former shareholder in Metstech and Metstech IP, while his wife was a director of both companies. Mr Corbett was a pleasant fellow who made fair concessions and was a credible witness.
The plaintiffs also called officers and employees of Challenge Networks Pty Ltd – which ‘bank rolled’ Metstech’s operations in later years – being director, Simon Lardner and engineers, Gehan Manuel and Mark Gasseling. No issues of credit arose. I accept their evidence. The plaintiffs also relied on the expert evidence of Dr George Georgevits, who was a knowledgeable and authoritative expert. I accept his evidence.
The first defendant, John Park, is an electronics engineer and former director and employee of Metstech. The second defendant, Old Name Pty Ltd, is Mr Park's family company. Mr Park remains a director and secretary of Metstech IP. His company continues to hold 40 shares (25%) in Metstech IP.
Mr Park gave evidence and was cross-examined at great length. He was keen to give his version of events and volunteered self-serving remarks. He was, on occasion, non-responsive and, on other occasions, evasive and argumentative. Mr Park was prone to speeches. Some of Mr Park’s evidence seemed unlikely, for example, that he did not care who Mr Chou was getting to design Metstech’s products, where intellectual property rights was clearly a subject dear to Mr Park’s heart. On occasion, Mr Park referred to conversations not in his three affidavits. Mr Park maintained a position at odds with contemporaneous documents. The disconformity between Mr Park’s evidence and contemporaneous documents is endemic.
Mr Park appeared to laugh at various questions or when giving an answer, in an apparent effort to make the question appear to have been ridiculous. Mr Park did not take responsibility for anything but blamed others; he sought to ‘verbal’ Mr Jefferson whenever he could. He destroyed documents. He appears to have breached restraining orders made in the early days of these proceedings. Ultimately, I have not accepted Mr Park’s evidence unless corroborated by contemporaneous documents, the evidence of another reliable witness, or where his evidence was against interest.
The third defendant, Chung-Chieh (Jason) Chou, is an electronics engineer and a former director and employee of Metstech and a former director of Metstech IP. Mr Chou specialises in radio frequency (RF) engineering. He trained in Taiwan and, in 2005, moved to Australia with his wife, Yi-Jia (Isabella) Chen. In 2007, Mr Chou and Ms Chen incorporated Welldesign Electronics Pty Ltd, the fourth defendant, which undertook electronics design in RF communication. Welldesign was a former shareholder in Metstech and Metstech IP. Ms Chen is the director of Welldesign, while Mr Chou and Ms Chen are equal shareholders.
Mr Chou had a translator on stand-by if needed but was able, by and large, to give evidence in English. Mr Chou can read English well. It is apparent that other Metstech directors or employees – Phil Clifton then Mr Corbett and Christopher Martin and, to a lesser extent, Mr Park – acted as an interface between Mr Chou and others, apparently by reason of his English-speaking abilities and his focus on highly technical matters: see also at [345]. Mr Lardner also observed this pattern, as did Rorque Poisson, who believed that Mr Martin essentially acted as a mediator for Mr Chou.
Mr Chou’s evidence was given in most emphatic and fervent terms; he was keen to speak at length. Mr Chou was, on occasion, fiery and argumentative and made a few speeches although, on other occasions, was non-responsive or evasive: see, for example, at [241]. Mr Chou’s evidence that he did not know the fee, and had never discussed a fee, with an ODM (an Original Design Manufacturer) was unlikely. On occasion, Mr Chou’s version of events was clearly at odds with contemporaneous documents and, when pressed as to the difference between his evidence and the document, Mr Chou’s answer was usually preceded with “Not really”, which, over the course of his cross examination, was generally an indication that what followed was going to be difficult to accept.
It did appear that, outside matters of engineering, Mr Chou had little interest in what was going on at the time. Mr Chou denied reading important emails from the administrator appointed to Metstech in any detail; I accept his evidence in this regard. Mr Chou did not understand, nor apparently care, about the legal niceties of Australian law; he was focussed on securing the financial interests of his family. His actions at the time of a deed of company arrangement (DOCA) were probably guided by his solicitor, his wife and the other defendants. He does not appear to have complied with court orders for disclosure. I have approached his evidence with caution.
Ms Chen was also cross-examined. Ms Chen has a law degree from Taiwan but, at the time of these events, her role appeared to have been to run the family household and keep the books of the family business. Ms Chen had little knowledge of accounting or computers. When problems emerged with Metstech, it appears that Ms Chen took charge of the matter on behalf of her husband and their family companies. Ms Chen sought to secure the best outcome for their family interests with the assistance of their solicitor, Sean Li.
Ms Chen appeared generally honest and very concerned, indeed, quite emotional about money, but then said she was not interested in being paid $90,000, which was unlikely. Ms Chen said she read parts of emails but not other parts which were problematic; this was also unlikely. On occasion, Ms Chen’s evidence was extremely guarded and very protective of her and her husband’s position in these proceedings. This resulted in some evasion and, on occasion, inconsistent answers: Ms Chen initially disclaimed knowledge of ChampWin Technology Co Ltd but later agreed that her husband established the company (Mr Chou said he did so on his wife’s advice) and she had as much involvement in the company as she had in Welldesign. I have approached her evidence with caution.
The eighth defendant, Christopher Martin, is a software developer experienced in network and software engineering. He is a former employee of Metstech. The ninth defendant, CSM Family Investments Pty Ltd, is his company. Mr Martin’s company is a former shareholder of Metstech and remains a shareholder of Metstech IP, holding 32 shares (20%). Mr Martin was never a director of either company. To some extent, Mr Martin appears to have been independent from the directors of Metstech and Metstech IP as, while they were ‘at war’ with each other, he was entrusted with taking the minutes of meetings.
Mr Martin was an energetic and quickly spoken witness who gave fulsome answers and was obviously knowledgeable and enthusiastic about his work. He did make gratuitous remarks in support of his case. Mr Martin was emphatic about the terms on which he was prepared to work for Metstech. Mr Martin appeared to have a good and actual recall of events and was generally fair in the answers he gave, including making plain when he did not know something. Mr Martin frankly agreed that he did not know much about the duties of a director. He was firm when saying that he did not agree to transfer his intellectual property in the software in return for shares in Metstech and Metstech IP. Some of his evidence appeared unlikely, for example, that he did not give instructions to solicitors to send a letter on his behalf. Overall, he appeared honest and credible but I will defer to the contemporaneous documents. Sadly, those documents depart significantly from Mr Martin’s version of events in several material respects.
The tenth defendant, Rorque Poisson, is a business consultant. The eleventh defendant, Metstech (Trading) Pty Ltd, is his company. Mr Poisson represented himself and his company. He appeared open, honest and straightforward. He gave evidence in a clear manner and made reasonable concessions. I have generally accepted his evidence, which was, on occasion, adverse to his interests. In particular, Mr Poisson accepted that he registered a charge when he understood there was, in fact, no security interest. That said, the corporate strategies which Mr Poisson promoted to the defendants were highly questionable and his approach to these proceedings was generally to accept, I think, that the ‘game was up’ and to try and resolve these proceedings as painlessly as possible. I have not accepted some of Mr Poisson’s more benign explanations of events.
Finally, Heath Smith is a director of the former twelfth defendant, 10Telco Pty Ltd, against whom these proceedings settled. He was obviously reluctant to attend at court but appeared straightforward. Mr Smith agreed that he rendered a false invoice in order to try and get a bad debt paid. Mr Poisson used Mr Smith as a ‘pawn’; Mr Smith agreed that he did not read the documents but just did what Mr Poisson said. I accept his evidence in that regard.
The documentary evidence is substantially incomplete, in particular, as the defendants took steps to delete Metstech’s data and emails: see [438]. The surviving documents are riddled with technical terms and abbreviations, many of which have been translated by Mr Manuel and Mr Gasseling. Understanding what the parties were talking about in any particular email or communication was not always easy. I have endeavoured not to place too much weight on individual documents, where the technical language was not entirely clear. Overall, however, the emails convey a consistent impression of the tasks being undertaken by Metstech’s directors and employees during the course of product development.

ONUS AND INFERENCES

Drawing on my judgment in In the matter of Anna Bay Resort Pty Ltd [2022] NSWSC 331 at [11]-[17], the burden of proof rests on the plaintiffs. The standard of proof is the civil standard, being proof on the balance of probabilities but qualified having regard to the gravity of the questions to be determined: section 140(2), Evidence Act 1995 (NSW); Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (per Dixon J). Further, at 361: “The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.”
Whilst the plaintiffs bore the onus in proving that Mr Chou designed the products in question, “where material evidence is peculiarly within a party's knowledge, it may be sufficient for the opposing party to adduce slight evidence of a matter in issue”: Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWSC 453 at [26] (per Beazley P), citing Lord Mansfield CJ’s maxim in Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 at 970. As Gleeson J likewise summarised in BCI Finances Pty Ltd (In Liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227 at [125]:

All evidence “is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”: Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. This maxim also bears upon the appropriateness of deciding whether a fact has been proved when only limited evidence is available. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [14], [15], Hodgson JA (with whom Beazley JA agreed) said:
[I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision …
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so …

Of course, the principle from Blatch v Archer does not alter the onus of proof, nor the position that “the circumstances in which … the absence of evidence may be taken to account are confined by known and accepted principles …”: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The Court may draw inferences to choose between competing versions of events. As Buchanan J explained in Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297; [2011] FCAFC 151 at [31]: (citations omitted)

Inference does not mean conjecture, even in a civil case. In civil proceedings the inferential process “may fall short of certainty, [but] must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture” … A court is not authorised to choose between guesses, even on the ground that one guess seems more likely than another or others.

See also Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [84]-[88] (per Spigelman CJ).

A party’s failure to produce documentary evidence to corroborate their account, where they might be expected to be in possession of such documents, may give rise to an inference that such documents as they may be expected to have would not support their account: Jones v Dunkel (1959) 101 CLR 298 at 320 (per Windeyer J), citing with approval Wigmore on Evidence (3^rded., 1940, Little, Brown and Co.), (“the failure to bring before the tribunal some circumstance, document or witness …”); Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [134] (per Callinan J); Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at [44] (per Eames JA, with whom Buchanan JA agreed, noting that “the Jones v Dunkel principle can equally apply to missing documents as to missing witnesses”); Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 at [131]–[132]; Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd [2018] QSC 98 at [112].

INTRODUCTION TO THE TECHNOLOGY

It may assist to say something about the products which Metstech was endeavouring to design – products to be used in a ‘leaky feeder system’ – and the steps involved in designing an electronic device.

Leaker feeder systems

A ‘leaky feeder system’ is a communications system designed to be used underground, where electromagnetic signals cannot penetrate. Leaky feeder systems can provide reliable long distance two-way radio communications between locations that would otherwise be out of radio range of each other. Mobile phones may also be used, using wireless broadband communication technology known as long term evolution (LTE).
Leaky feeder systems use leaky coaxial cable to radiate a radio frequency (RF) signal into a predefined area and pick up wanted RF signals from that area. Because RF signal leaks out along the feeder, miners equipped with compatible two-way radios can pick up the desired signal at any location along the leaky feeder system route. A simple example of a leaky feeder system can be seen in drawings prepared by Metstech:

The “Headend” is the controller for the system. At any point on the leaky feeder system, signals travelling away from the headend are referred to as downstream signals, while signals travelling towards the headend are referred to as upstream signals. The “BDA” is a bi-directional amplifier. A “Splitter” is installed where the tunnels split. The “End of Line” (EOL) is a terminator.

Dr Georgevits described the components in a typical leaky feeder system. First, a leaky coaxial cable (often referred to in the evidence as a leaky coax) running the full length of the tunnel where communications are required. Leaky coaxial cable has regular slots in the outer conductor or shield to permit RF signals to radiate out of the cable and also couple into the cable from outside, as shown in the photograph:

Second, a headend containing a controller and a BDA that is connected to the first length of leaky coax. Metstech’s controller provides an obvious example, as seen in the below photographs, both externally and internally:

The Metstech headend controller contains a Raspberry Pi single board computer, which can be purchased ‘off the shelf’ and are popular with computer hobbyists. (The software for this device was designed by Mr Martin; ownership of this copyright in this software is in dispute). Dr Georgevits explained that the prime function of the Metstech headend controller is to monitor the status of the BDA amplifiers by periodically polling them.
The controller also contains an RF power combiner, the purpose of which – for downstream signals – is to combine the LTE signals and two-way radio signals and feed these to the leaky coax at the head end. For upstream signals, the LTE and two-way radio signals are extracted from the leaky coax as an RF stream and separated, after which they are connected to the relevant terminal equipment. The controller also acts as a DC power injector, powering the first few BDAs downstream from the head end. A power supply is required to supply DC power to the control unit.

Third, a BDA is an amplifier designed to be inserted into a transmission line that carries power or signals. The purpose of the BDA is to compensate for losses incurred by the required signals as they travel along the leaky coax feeder. The BDA does this by amplifying the wanted signals that are travelling in both directions along the feeder; the BDA is designed to selectively amplify signals only in the desired frequency bands of operation. BDAs are placed at regular intervals along the length of the coax to make up for line and radiation losses for signals travelling in both directions, thus ensuring that sufficient signal strength is maintained along the coax. This can be seen in the following photograph:

Internally, the BDA has a baseboard into which printed circuit boards (PCBs) are slotted. A photograph of Metstech’s BDA, both externally and internally, may be seen below:

PCBs are a base that mechanically supports and electrically connects electronic components using conductive tracks, pads or other features etched in sheet layers of copper laminated onto or between sheet layers of a non-conductive material such as fibreglass.
The BDAs must be set up so that the signal transmitted by the first BDA in each band is reproduced at the same power level by all the other BDAs downstream, in a procedure called downstream balancing: each BDA downstream from the head end is set up locally using a laptop computer running the required BDA setup software and connected to the BDA by a Bluetooth link. The same procedure is repeated for the reverse direction, called upstream balancing.
Fourth, a splitter is a passive RF device which divides the input signal into two or more equal output downstream signals. Whenever the leaky feeder system design requires a branch point, a splitter is inserted in-line to feed equal downstream signals into each branch of the leaky feeder system.
In addition, the splitter may perform the function of a combiner for upstream signals. When an upstream signal encounters an output port of a splitter, the upstream signal from the first branch combines with the signal from the second branch and is fed out of the splitter’s input port. A photograph of Metstech’s splitter/combiner, both externally and internally, follows:

Fifth, a terminating unit or EOL Device is connected at the end of each branch of the leaky feeder system tree. The function of the EOL Device is to provide a connection point for a signal generator so that the gain of each BDA can be set in the upstream direction, to block the DC power present on the leaky coax and to provide a connection point for each end of run termination, such as a resistive load or an antenna. The end of line termination is required to prevent the end of the coax generating signal reflections, which would travel back up the coax in the upstream direction and interfere with wanted upstream signals. A photograph of Metstech’s EOL, both externally and internally, follows:

Sixth, a leaky feeder system requires power supplies, power cabling and power injected devices that supply power to all BDAs installed along the length of the coax. Each BDA contains the required electronics to separate the DC power from the coax without adversely affecting the upstream and downstream signals. A power injector enables DC power to be injected in-line into the leaky coax cable and feed DC power to BDAs that are connected in-line. A photograph of Metstech’s power injector, both externally and internally, follows:

Finally, the term “multiple-in-multiple-out” (MIMO) is a term used for two-way radio systems that make use of more than one antenna to transmit and receive signals. Where two antennas are used, this is known as the 2 X 2 MIMO, which may be used in a leaky coax system by running two leaky coax cables in parallel, with each cable acting as an antenna for both the send and receive paths. The aim of this technology is to provide better service for users throughout the coverage area of the leaky coax system. “Maths Boxes” is a technique used to enable a single leaky coax cable to form a 2 X 2 MIMO system.
As will be seen, the controller, BDA, power injector, splitter, EOL and “maths box” were components of Metstech’s leaky feeder system.

Designing an electronic device

Notwithstanding that leaky feeder systems and BDAs have been available on the market for many years, Dr Georgevits considered that those designing a BDA today “would need to start almost from scratch. Because different applications require different designs of BDAs and also, as time goes by, the availability of components changes. So with more modern electronics, amplifiers perform much better, they require less power, they have different requirements. There's all these issues that you have to cover so … it's not simply a matter of just plucking one out of the air and saying all right, well we started there.” Likewise, designing the splitter and filters is “a very non-trivial task”.
The first step is to develop “Functional Specifications”, which define what the device is intended to do, how well it is required to do it and the environment in which it is intended to work. This step requires in-depth knowledge of the industry and involves a high level of innovation and creativity to create a successful new product. Mr Chou referred to this step as concept design. Mr Chou agreed that he did the concept design for Metstech’s products.
The second step is “Electrical Design and Design Prototyping”, that is, to realise the functional specification into a physical device. This task is carried out by an electrician designer, who designs and constructs a circuit that meets the requirements of the functional specification. It is a routine task but nonetheless requires a high level of technical expertise and familiarity with electronics, together with the appropriate tools and software. In Dr Georgevits’ view, “these tasks were all of a routine nature and although they may have involved a significant amount of work, they did not involve significant innovation.”
Perhaps in contrast, Mr Chou said that “for the real things” like a schematic or PCB, he needed to outsource to a company with the tools to do these services for him for a fee. Likewise, Mr Park did not see any complexity or difficulty arising from the functional specifications for Metstech’s BDA but rather in the selection of components, the layout of the electrical, electronic and RF components and ensuring that impedance and interference were removed, that is, the electrical design aspect of production development. I prefer the evidence of Dr Georgevits, who was a knowledgeable, dispassionate and impressive witness, unaffected by credit issues.
An electrical schematic is normally created and optimised using a circuit simulation software package such as Altium Designer. As Dr Georgevits explained, a schematic is a two-dimensional graphical circuit representation using standard electrical component symbols and interconnections to show the functionality and connectivity between electrical components. An electrical schematic diagram can be drawn by hand but more often by computer software, especially for more complex designs.
Once the simulated circuit performance is satisfactory, a PCB layout is generated using PCB design software. A PCB layout is a computer generated graphical file that shows the position of all components on the PCB together with the interconnecting tracks, interconnects and overlays. For simple designs, a PCB layout can be created automatically from the electrical schematic file. For more complex designs, a PCB layout may be automatically generated by computer software.
A bill of materials is also completed, usually by the PCB layout software. Most circuit design software packages can do these functions automatically, although some manual intervention is usually required for complex circuits or circuits with RF applications where interference, shielding, signal trace impedance and line termination considerations become critical.
The PCB layout file is then given to the PCB manufacturer, who uses it to generate the necessary control files that the PCB manufacturing equipment uses to make the PCB. Dr Georgevits provided an example of a typical PCB layout graphical representation (on the left) and the corresponding manufactured PCB (on the right):

The required components are then sourced and a design prototype is built and performance tested against the requirements of the functional specification. If one or more performance parameters is not met, the design will need to be modified and re-tested in an iterative process until all required performance parameters are met. The design then needs to be documented, including updated versions of the schematic, PCB layout and bill of materials. Test points need to be incorporated at critical points in the circuit. Test and calibration procedures and signal levels at these test points need to be documented.
The third step is “Production Prototyping”, where the design prototype is optimised for production in terms of physical component layout, type and location of input and output connectors, housing, cost of production, ease of manufacture and troubleshooting. Several samples of the PCB will need to be manufactured, populated with components, calibrated and tested against the required performance specifications; this is an iterative process and needs to be repeated until all the performance and other physical specifications are met.
The fourth step is manufacture. Component supplies need to be found and sufficient quantities of the components purchased for a trial small production run of, say, 20 units. These units should be field trialled to ensure that there are no unforeseen problems. When any issues associated with the field trial units are resolved and the design altered and retested, if necessary, a larger production run can be considered

Using ODMs and OEMs

The steps involved in designing an electronic device can be carried out in-house or outsourced. As Mr Lardner lamented, “Australia, sadly, almost had no manufacturing capability anymore. So, our intellectual property is what we essentially sell as a country and as companies. … a company … designs things and the actual nuts and bolts and putting it together may be outsourced, just like Apple does with its iPhones.”
Here, two acronyms warrant specific explanation, being ODM and OEM, albeit neither have a fixed or universally agreed meaning in the industry.
ODM means Original Design Manufacturer, which Dr Georgevits explained is an entity that designs and manufactures component parts or sub-assemblies into completed products. The products are often branded with the names of other entities who distribute the finished product. An ODM can design products to a client’s functional specifications; the design information must be kept confidential by the design house and must only be used for the benefit of the client. When the design is completed, ownership of the design is normally retained by the client, subject to the contractual arrangements between the client and the design house.
This is to be contrasted with an OEM or Original Equipment Manufacturer, which is an entity that purchases components from other manufacturers or suppliers and uses them to assemble their own finished products that are then sold under the brand name of the OEM. OEMs also make parts and sub-assemblies that are resold to other companies who assemble them into their own finished products. An issue in this case is whether Metstech used an ODM or OEM and for what purpose.

WHAT HAPPENED

Mr Park is married to Mr Jefferson’s cousin. Through his work in communication systems in mines, Mr Park met electronic engineers, Phil Clifton and Mr Chou. They considered that the technology being used was outdated and had ideas as to how it could be modernised. Mr Park saw a business opportunity and turned to Mr Jefferson to provide funding. Mr Park suggested that a company be formed to develop products to fill a gap in the market. As Mr Clifton later stated, “We believe that this will be the next major evolution in underground construction communications … Jason and I have been dreaming about creating this product for many years. We are finally in a position to make it happen.”

Metstech

In October 2014, Metstech was incorporated. Mr Park thought of the name, based on the acronym “METS” using in the industry, meaning “mining electronic technology services”. Mr Park and Mr Jefferson were appointed directors and their companies, Old Park and Auxilia Holding, were allotted one share each. Mr Park’s daughter designed a logo.
Mr Park invited Mr Chou, Mr Martin and Mr Clifton to become shareholders and directors. Mr Martin declined but offered to assist when needed and suggested that they hold his shares for him, if and when he joined the company full-time. Mr Chou and Mr Clifton became directors and, through their various corporate entities, equal shareholders with Mr Park and Mr Jefferson.
Mr Park wrote a business plan. The business owners of Metstech were described as Mr Jefferson (managing director and operations manager), Mr Park (general manager and business development), Mr Clifton (senior communications engineer and project director) and Mr Chou (senior system delivery engineer / design engineer). A fifth owner, Mr Martin, was “under negotiation” and would either join as a contractor or shareholder, with his role to be technology officer.
According to the business plan, Metstech planned to develop a channelized BDA, which was “seen as having global opportunities”. As for the company’s “Intellectual property strategy”, the business plan noted “We are currently investigating the possibility of a patent for the BDA system”.
Of the “business owners”, Mr Chou might be thought to have been particularly important to achieving this objective. Mr Chou was described in the business plan as having “been employed by some of the big names in telecommunications and leaky feeder system manufacturers. … spending time in the Asian tunnelling industry”. Mr Clifton later stated, “Jason is the finest telecommunications/RF Engineer I have ever met or had the pleasure to work with and gratefully learn from”.
Metstech opened a bank account. On 18 November 2014, Auxilia Investments transferred $10,000 into the account, with the description “Mets Loan”. On 17 December 2014, Auxilia Investments transferred another $20,000 into Metstech’s bank account, with the description “Loan Metstech”. These were the first of many loans made by Auxilia Investments to Metstech which, as is evident from bank statements, paid the wages of Metstech’s employees, including Mr Park and, later, Mr Chou and, later still, Mr Martin. In addition, as the design and development of Metstech’s products progressed, Auxilia Investments advanced funds to Metstech to pay for components, necessary software and manufactured products.
In December 2014, Metstech was engaged by Motorola as a reseller of commercial radios. Mr Jefferson explained that, initially, half of the company’s efforts were directed to designing a new product and half to selling Motorola products “to fund the development of the product”. It is apparent, however, from the first business plan that Metstech’s raison d’etre was to develop new products which may be worthy of intellectual property protection.

Designing new products: splitter and BDA

Mr Chou was then working part-time for Metstech while also working for another company, AMPcontrol Ltd. On 20 January 2015, Mr Park reported to Mr Clifton, after “Spen[ding] a very productive couple of hours” with Mr Chou, that they had decided to buy some “development boards for the UHF/VHF BDA” and develop three BDA units for demonstration to Motorola, “we will then decide if we want to OEM”. It will be recalled that an OEM is an entity that purchases components from other manufacturers or suppliers and uses them to assemble a finished product, as opposed to an ODM, which also designs the product. It is unclear whether Mr Park was considering using, or being, an OEM. In any event, Mr Chou provided a link to a website to purchase development boards from the United States.
In February 2015, Auxilia Holding purchased a property in Mayfield East for Metstech’s operations. Auxilia Investments transferred a further $34,200 into Metstech’s bank account as loans. In March 2015, Mr Jefferson also registered a new company, Centurion Survey Pty Ltd, which also began to operate from the Mayfield premises. In April 2015, Auxilia Investments transferred a further $20,000 into Metstech’s bank account as a loan.
On 24 March 2015, Mr Clifton sent mechanical drawings to Mr Park in respect of “Development Work For Underground Radio Product”. Mr Clifton reported: (emphasis added)

Jason has done a fair bit of PCB layout already … With the current tools now on hand we can begin the … proof of concept testing. … This would be a very interesting product for us to master. … This would help hide the technology from competitors until we can master throughput and finish our own BDA.

The emphasis of Mr Clifton’s email was on designing something new and unique, such that there was a need to “hide the technology from competitors.” Mr Clifton suggested that an internal metal brace be developed using a 3D printer to make a model for manufacture; “As you can see the PCB and enclosures are pretty much finished, in order to create the internal [brace] we will need to create working models.” It would thus appear that, using the demonstration boards obtained from the United States, Mr Chou and Mr Clifton had made significant progress in developing the design of the BDA, including PCB layout, and the next stage was “proof of concept testing”.
On 15 April 2015, Mr Park asked Mr Chou to provide a brief description of developments, and supplied a table to be completed. Mr Chou promptly replied: (emphasis added)

The attach file is the updated table that what I am doing now.
The company need to buy Altium Designer for schematic/pcb layout (that reduce legal issue for the design file).
And Rhino 3D cad for 2D/3D design too. I had embed C compiler license so can use in our base band controller without legal issue.
We may need purchase Delphi for development our PC software and Android/IOS APP later.

The table attached to Mr Chou’s email included a list of 15 products, together with the “current position”, “next step”, “cost to production”, estimated cost of product and timeframe.

The first product in the table was a splitter. According to the table completed by Mr Chou, the current position was “board developed, need to develop enclosure with 3D printer”. The next step was “com[m]it to manufacture. Design encl[osu]re and manufacture”. Cost to production was estimated to be less than $15,000 with an estimated timeframe of six weeks.
The second product in the table was a Pre-Amp. The current position was “design complete”. The next step was to “build PCBs”. Cost to production was $30,000 with a timeframe of three months. The third product was a Data Modem (WiFi board): the command test software was finished, a link test was the next step. The balance of the products were at the schematic design stage, with some circuit simulations completed; a PCB layout was listed as the next step.
Dr Georgevits said this email was an example of correspondence indicating that Mr Chou was undertaking electrical design and prototyping work. Here, Mr Chou listed a set of electrical design tasks he was working on at the time and the stage that each task was at. Mr Chou also stated that Metstech needed to buy software. If the splitter was already completed, then Mr Chou either had access to unlicensed versions of the required software and performed the work himself or arranged for an ODM to perform the work that he could not undertake himself. Mr Chou told Mr Park that he had access to Altium, “He said he had a friend.” Mr Chou’s ability to complete these tasks with the necessary software was not in doubt; Mr Park considered that, if Mr Chou had an Altium Designer full licence, “then he could develop components with that without any question.”

Leaving it to third parties?

According to Mr Park, about a fortnight later, he met with Mr Jefferson, Mr Clifton and Mr Chou. Mr Jefferson said that he did not want to spend the amounts needed to buy the development software and asked if there were other options. Mr Chou said that he could do a deal with third parties to design with them, using their software, to ensure that the products were legal and to keep the costs low. Mr Chou said he knew many companies in Taiwan that he could work with to produce the products on their software and equipment. Mr Park, Mr Jefferson and Mr Clifton are said to have agreed that Mr Chou’s suggestion was the best option at that stage.
Mr Jefferson denies this. Rather, Mr Jefferson said he told Mr Chou on numerous occasions, “I will fund whatever purchases you need for the development of the Metstech product”. There is contemporaneous evidence which corroborates Mr Jefferson’s account: see [116], [240], [251]. Mr Jefferson said he was willing to pay for necessary costs associated with the development of the product, having already purchased the Mayfield site and advanced significant sums through Auxilia Investments.
The conversation described by Mr Park is not referred to by Mr Chou in his affidavits. Mr Clifton did not give evidence. I have generally preferred the evidence of Mr Jefferson to that of Mr Park but, in any event, the contemporaneous emails provide little support for Mr Park’s version of events. There is contemporaneous evidence that Mr Chou requested Metstech to buy software, which it did, funded by Mr Jefferson: see [251]-[252], [259]. There is no reference in the contemporaneous documents to a proposal that Mr Chou would do the design work with others.

Mr Chou becomes full-time employee

It became clear that Mr Chou could not maintain other employment and devote the required time to Metstech. Mr Chou resigned from AMPcontrol to work fulltime for Metstech, designing and manufacturing amplifiers. Mr Chou commenced employment with Metstech in May 2015.
On 28 May 2015, Mr Park asked Mr Chou and Mr Corbett for further information in advance of a meeting with the Global Head of LTE for an IT company, who “wants to know how our project will connect to his to deliver LTE underground. So I need information …” On 29 May 2015, Mr Chou provided a diagram.
On 5 June 2015, Mr Chou enquired of Mr Clifton and Mr Jefferson:

And for the prototype development’s cost that like PCB, components.
How to pay bill to these cost? Do I pay with my personal company in advance and send invoice to Metstech? I need to know the procedure, otherwise all development are based on simulation and paper work now, not help for real things com[i]ng out.

It would appear from this email that Mr Chou was continuing to work on the “Electrical Design and Design Prototype” phase described by Dr Georgevits.

Initially, at least, Mr Chou proceeded to submit bills to Metstech for payment, being invoices from companies based in China or Taiwan for components used in the manufacture of prototypes for Metstech products. The first such invoice was from a Hong Kong company dated 18 June 2015 for US$6,600. On 23 June 2015, a Chinese company rendered an invoice to Metstech, apparently for components. Payment was made using funds deposited by Auxilia Investments to Metstech’s bank account. It is apparent that Metstech’s payment of these invoices was not always immediate and Mr Chou was quick to follow up payment. Mr Chou was not always forthcoming in providing invoices for payment: at [115], [116].
On 18 June 2015, Mr Chou provided drawings to Mr Clifton entitled “Leaky Feeder to N-type” and “3WAY”. An N type RF connector was used to connect the leaky feeder cable to other components. In the Metstech BDA system, the N connector was installed to connect the cable to the headend controller, BDAs and splitters. “3Way” is another name for a splitter. The drawing of the splitter bore the name and logo of Metstech. Mr Chou advised Mr Clifton that the file “is the new enclosure 3D model that you can send to them to get the quote.”
Mr Clifton forwarded the drawings to a Taiwanese company, Bencent Tzeng Industry Co Ltd, requesting a quote for tooling and an initial product run of the splitter. Mr Clifton also provided a photograph of a standard splitter from an existing manufacturer and explained, “we have chosen to change the standard design”. Mr Clifton proceeded to described the new design features, “This is important.”
Mr Clifton requested a small number of units for testing in the field, “After a field trial we may update the design if needed.” It appears that, for the splitter, the third step in designing an electronic device, as explained by Dr Georgevits, was then underway, being Production Prototyping. It is also apparent from Mr Clifton’s email that Metstech’s splitter had an unusual or different design from existing products. Bencent Tzeng Industry Co Ltd rendered an invoice on 23 June 2015 for US$2,279.36, presumably to attend to the task requested by Mr Clifton.

Metstech IP

In June 2015, Metstech IP was incorporated. Presumably by this point the directors of Metstech considered that there was, or soon would be, intellectual property worthy of protection. Mr Park, Mr Jefferson, Mr Chou and Mr Clifton became directors and shareholders of Metstech IP through their various corporate entities.
Metstech IP opened a bank account. Metstech IP registered the domain name metstech.com.au, although Metstech paid the invoices of the entity hosting the website. All employment and other expenses continued to be incurred by Metstech.
Mr Park said Metstech IP was formed with the sole purpose of owning all intellectual property separately to Metstech, which was to be the business’s trading entity, employer and contracting party with customers. The plaintiffs accept that it was intended that Metstech IP would hold the intellectual property associated with Metstech’s business; what intellectual property the company in fact held is contentious.

Design process continues

On 5 July 2015, Mr Chou sent his fellow directors some photographs of the splitter enclosure “for our Leaky system”. Presumably, the item had been made by Bencent Tzeng Industry Co Ltd, as requested. Mr Chou advised, “Will publish the pcb and build few working samples for test”. In cross-examination, Mr Chou said that he used the word “publish” to mean manufacturing PCBs in the factory. On 15 July 2015, Mr Chou forwarded an invoice from a Chinese company for US$485, apparently for various components, and requested Mr Park to attend to payment.
On 31 July 2015, Mr Chou sent his fellow directors a document containing diagrams, descriptions and specifications. Mr Chou advised, “I just finished the design and the attach file is the module draft datasheet for your reference.” (emphasis added).
On 12 August 2015, Mr Clifton emailed Evolution Mining, requesting a meeting to discuss Metstech providing communications services. Amongst the services offered, Mr Clifton referred to “NEW!!” products being developed by Metstech, including a hybrid leaky feeder cable – “We believe this is the future of underground leaky feeder systems” – and radio bi-directional amplifier. Mr Clifton also advised, “We have begun testing”.
By August 2015, however, Metstech had become somewhat distracted by efforts to generate income, in particular, by undertaking radio installation work for Tritton Resources Pty Ltd. Metstech installed a radio system at Tritton’s copper mine in western New South Wales. Mr Clifton was responsible for the project. Mr Chou also attended the mine a couple of times. On 29 September 2015, Mr Park emailed Mr Jefferson and Mr Chou, requesting a meeting “to discuss the immediate, short and long term options for the company”. Mr Park encouraged his fellow directors to re-focus their attention on developing new products rather than installing products designed by others. Mr Park stated: (emphasis added)

The initial project at Tritton will not reduce the liability in the company, subsequent projects with Tritton (main site upgrade) will give us a good profit since we have sunk significant funds into developing, this profit will not be maximised unless we can finalise the development of [various components] …
Technology/Value
Once we have the [first component] we have value in the company, once we have [second component] then we have significant value, this will increase again with the [further features added to these components]. We need to focus our energies on development.

Mr Park noted in his email that the company had access to several technical staff, including Mr Chou and Mr Martin, as well as significant opportunities including Australian telecommunication and IT companies and a number of mines sites, “Basically, in 25 years of business development I have not had a pipeline like this, as long as we do not fuck it up”. Moving forward, Mr Park said they needed to focus on development and, “Basically until we have our own product we should minimise funding deployments.”
Mr Park repeated the need to develop new products in an email to Mr Clifton on 14 October 2015, copied to Mr Jefferson and Mr Chou: (emphasis added)

BDA is due to be published this week. … even with a rework we expect this product this quarter. … We need to focus on the IP development.
We do need a full BOM [bill of materials] so we can clearly understand the costs. …

It would appear from Mr Park’s email that the development of the BDA was nearing completion, with Mr Park calling for preparation of a bill of materials. Dr Georgevits identified this task as forming part of “Electrical Design and Design Prototyping”.
On 19 October 2015, Mr Park also reported to a colleague (in the field of robotics) of “where everything is up to”: (emphasis added)

• The Next Gen BDA is submitted to pcb this week, we are very confident that [it will support particular features] which is where we see a big opportunity. …
• [A further] sub-board has been designed, this will be built and tested once the BDA is in production.

As I understand it, Metstech was continuing to design other PCBs to be inserted in the BDA, to give the leaky feeder system the ability to transmit mobile data.

On 3 November 2015, Mr Chou provided test results to his fellow directors, having spent a few days trying to build a particular element of a component “to confirm that I can design [it] … The bad thing is that I need [to particular construction work] by myself. I think I can use this … in the BDA …”
On 23 December 2015, Mr Clifton circulated a draft specification for the BDA to Mr Park and Mr Chou. Mr Park replied, “Still waiting on engineer in Taiwan to get back to me. Attached is the [BDA] we would want to use for main deployment”. (As I read the email chain, the “engineer in Taiwan” is a reference to Mr Chou.) Mr Chou circulated “the updated Draft spec”, including to Progility Technologies, the proposed supplier of radios and engineering, together with a technical explanation.

Mr Chou quits temporarily

In October 2015, Auxilia Investments advanced a further $5,000 loan to Metstech but no payment was made to Mr Chou. In November 2015, Auxilia Investments advanced a further $20,000 loan to Metstech; Mr Chou was paid but only $4,000. In December 2015, Auxilia Investments advanced a further $63,000 loan to Metstech and Mr Chou was paid his salary of $5,068. That is, Mr Chou had not been paid consistently, either as to frequency or amount.
This prompted Mr Chou, on 24 December 2015, to tender his resignation. Mr Chou explained: (emphasis added)

I resigned from my previous job and joined Metstech was based on I’ll get pay from Metstech for full time development job. But seemed not like as I thought. … I kept spending my saving to develop products and Metstech on going project cost. …
I am not care any share of this company, so I’ll do some action to return my share when I back Australia, that include Metstech IP …
I would like to simple the things in the future. Just like trade business, Metstech want some thing, I design and build it and charge the reasonable price that all.

Following Mr Chou’s resignation, a number of emails were exchanged. Mr Park asked Mr Chou to reconsider, noting “Chad has paid you and also Tritton are starting to pay bills”. Further:

Chad has been paying Metstech bills out of his own pocket. We have also discussed many times that Chad will pay development costs and you have been asked to supply invoices.
If you want to be paid as contractor then this is possible. The develop[e]d bda’s are now being proposed.

Soon after, Mr Park sent another email, explaining the reasons why Metstech had not paid him regularly and assuring Mr Chou, “You will receive all outstanding back pay from the company.” Going forward, Tritton was expected to place a substantial order, which would place the company in funds. Further: (emphasis added)

For the outstanding development money, I have asked you to please resend the Paypal from Sept when we all met at the office and apologised for missing it. I have also asked you since to please provide paperwork for the pcb’s and development costs. Chad has also advised you that he will directly pay these costs so the development is not delayed.
… It is critical that the BDA is finished and as you previously advised that the BDA’s are brought back by you so we can start the approval process.
We also want to talk with you in regard to manufacturing rights for the product. We are willing to discuss allowing your company to have these rights. …
However, the ip for the products resides in METStech IP. …
I do not think it is in your best interests to “return” your shares in METStech, at this time there are currently big losses in the company. The ip will be worth a money once we have the BDA finalised, approved by the vendors and we have a few installations. …
If you still want to resign I would at least like you to give us notice period, I would like 3 months. … This will give us time to finalise the de[s]igns and Tritton Main Site deployment.
I also need to know the delivery of the current BDA. We also need a pro-forma form the manufacturer to pay. We have never asked or expect you to pay for this.

These emails highlight three matters. First, Mr Chou was entrusted with the task of designing products for Metstech, where “the IP for the products resides in Metstech IP”. There was no mention in these emails, or any preceding document, that the design was being undertaken by a third party such as an ODM.
Second, Mr Park now appreciated the vulnerability of Metstech’s intellectual property rights where the key employee engaged to design the products was threatening to leave the company and had yet to hand over the “paperwork for the PCBs” or the prototype BDA. In cross-examination, Mr Park agreed that Mr Chou was the key to the intellectual property: “without Jason we have nothing and that has always been a massive risk in the business.” In an apparent endeavour to secure Mr Chou’s loyalty to the endeavour which had been begun by Metstech, Mr Park was prepared to offer Mr Chou additional financial returns on Metstech’s products by way of manufacturing rights.
Third, Mr Chou does not appear to have been entirely forthcoming with ‘paperwork’, such that his fellow directors did not know precisely which companies he was dealing with in Taiwan and for what purpose.
The following day, 25 December 2015, Mr Chou relented but sought assurance that his salary would be regularly paid, as well as “spent cost for the project”, which I understand to be a reference to expenses incurred by Mr Chou on Metstech’s design project. Mr Chou advised, “Every development spent I still use Welldesign till I receive first pay,” by which I understand that Mr Chou intended to pay for the development costs using his company, Welldesign, and then seek reimbursement from Metstech rather than have Metstech pay the development costs directly. The downside with Mr Chou’s proposal was that Metstech would continue to have no visibility as to who Mr Chou was dealing with in Taiwan, or for what purpose. Mr Chou concluded his email: (emphasis added)

I’ll still keeping development the BDA system and will finish it by myself.

In cross-examination, Mr Chou said this meant he would go to an ODM to carry out the design work. Further, he did not need to ensure that his fellow directors understood the arrangements that he was entering into in relation to the design of the BDA system as “no one asked me”. I consider this unlikely and do not accept Mr Chou’s evidence. It is apparent that Mr Chou’s fellow directors were keenly interested in how Metstech’s products were developed. The development costs were being paid by the company, funded by Mr Jefferson. Mr Park clearly wished to ensure that the intellectual property rights associated with the products belonged to Metstech, presumably so that shareholders could benefit from exploiting these rights.
After this, Mr Chou’s salary was paid promptly. Cashflow problems appear to have alleviated in January 2016, when Tritton placed substantial purchase orders with Metstech, totalling some $430,000.
Also in January 2016, Metstech produced a Specification Document for the BDA – Version 1.2 – with the footer noting “COPYRIGHT 2016 METSTECH PTY LTD”. It will be seen that, whilst the directors envisaged that the intellectual property associated with Metstech’s products would be held by Metstech IP, the documents produced by Metstech in respect of those products almost invariably claimed copyright in favour of Metstech.
On 18 February 2016, Mr Chou circulated “the spec of Metstech BDA” to Progility Technologies, together with some “blurb”, apparently prepared by Mr Park, regarding the state of development and testing, “Samples of the [BDA] are currently being manufactured. … In three months we expect to release [a BDA with additional features]”. Further, “We are very fortunate that our development team is led by an engineer with [substantial] experience … As a group we have invested significantly into this technology.”

Successful test of BDA

On 29 February 2016, Mr Park emailed Mr Clifton, “Jason advises that the first BDA has been made and tested well”, and requested some “blurb” which he could pass onto potential customers:

So I need info,
BDA produced and tested,
Initial specification and test results.
A blurb advising that three will be available by the beginning of next week for in-house testing …
I also need documenting pre-production timeframe expectations, and Frequency shift update.

Mr Chou provided a document, “The attach file was I had done for your reference.” Mr Park appears to have expected that the sort of documentation described by Dr Georgevits would be available in relation to Metstech’s new products. Mr Chou was able to answer Mr Park’s request promptly, without suggesting that no such documents existed.
On 1 March 2016, further emails ensued between Mr Clifton, Mr Park and Mr Chou regarding test results, ordering components, finding suppliers for the enclosure and labelling. Mr Clifton advised that he would like to “finalise the Splitter Combiner product”. Further:

Initially [the suppliers] will be in Australia until the design work is completed.
I will provide some basic schematics based on the original design.
Do you have enough components on hand to build 4 Metstech splitters without enclosure? …
I am so grateful & impressed with the completion of the first ever [BDA with these features]. The quality of our design … we have a game changer. This will change the market environment …
Great Work!!

Mr Clifton, who was experienced in the industry and a close colleague of Mr Chou, was of the view that the product being designed was unique. It is also apparent that the design of Metstech’s splitter was nearing completion and associated documentation was being prepared.

As for Mr Jefferson’s actions in respect of the G Suite account, Mr Jefferson believed that, notwithstanding the domain was registered to Metstech IP, the domain licence belonged to Metstech because it had been paid for by Metstech. He had legitimate concerns that the other directors of Metstech had been refusing to hand over the company’s records. He was concerned to preserve the data on the G Suite account and had well founded suspicions that the other account holders had been deleting data. Mr Jefferson’s emails to Google describing the precise problem in terms which were not strictly accurate but were broadly true. His efforts were directed to preserving Metstech’s assets, being its data. This defence fails.

CONSPIRACY TO INJURE BY UNLAWFUL MEANS

The plaintiffs claim that the defendants, other than Metstech IP, were involved in a tortious conspiracy to injure the plaintiffs and Metstech IP by unlawful means. The alleged conspiracy is pleaded at length in the Amended Commercial List Statement, with the concluding contention that, in the circumstances, the defendants should be restrained from taking any further steps to give effect to the conspiracy: at [206]. No damages are alleged or particularised. Consistent with the pleading of the conspiracy in the Amended Commercial List Statement, a permanent injunction is sought restraining the defendants from taking any further steps to effect the conspiracy: prayer 7.
An immediate problem emerges. As Lord Diplock explained in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, conspiracy is a civil tort, where the gist of the cause of action is damage to the plaintiff: at 188. It is thus necessary for the plaintiff to plead that it has or will suffer pecuniary loss as a result of the conspiracy: Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd [2002] FCA 528 at [53]-[54] (per Cooper J); McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [134] (per Weinberg J). Failure to allege any relevant damage flowing from the acts of the conspirators, or the inability to prove such damage, may result in the pleading being struck out: Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 389-90; [1993] HCA 66 (per Dawson J).
The plaintiffs submitted that it was sufficient that it had sought orders that an inquiry be conducted into damages and an account be taken so that the plaintiffs could elect their remedy. Such relief is certainly sought, but not in respect of the tort of conspiracy. After prayer 7, the relief sought in the Further Amended Summons turns to relief in respect of “Trade Secrets” or “Confidential Information”. Orders are sought for permanent injunctions, declaratory relief and delivery up. Declarations are sought that any profits received by the defendants in respect of the Confidential Information or Trade Secrets are held on trust. Orders are sought, at the election of the plaintiffs, for an inquiry be conducted into the damages sustained by the plaintiffs or Metstech IP, or an account be taken of revenue received by the defendants in relation to the Confidential Information and Trade Secrets, and that the defendants be required to deliver up books and records to permit an account to be taken. As I read it, these prayers for relief relate to the claims made in respect of Trade Secrets and Confidential Information rather than in respect of the conspiracy. Prayer 13 seeks an order that, on the election of the plaintiffs, the defendants give an account of profits or damages or equitable compensation. Again, this prayer is directed to the plaintiffs’ claims for equitable relief.
The plaintiffs’ submission, and their pleadings, confuse their causes of action. As Handley JA explained in Milltec Australia Pty Ltd v Burnes [2006] NSWCA 13 at [13]:

The claims to a bare declaration and an inquiry as to damages were misconceived. The claim was for damages for a common law tort and the onus on a plaintiff who does not prove his damages, but seeks an inquiry for this purpose, is to establish his cause of action at the trial. A plaintiff is not entitled to an inquiry to discover whether or not he has a cause of action. The rights of the parties must be determined at the trial and any accounts or inquiries which are then ordered “follow merely consequentially”: McGrory v Alderdale Estate Co Ltd [1918] AC 503, 511 and generally Spencer Bower Turner & Handley “Res Judicata” 1996 pp 76-8.

Whilst it is no longer necessary to bring tortious claims in one division of the Court and claims for equitable relief in another, it is still necessary to establish each claim in accordance with established legal principles. For example, in Fatimi Pty Ltd v Bryant [2004] NSWCA 140, a claim of conspiracy to injure by unlawful means failed where the plaintiff had not proved that it had suffered any damage. As Giles JA summarised the position on appeal, “Since the tort of conspiracy requires proof of pecuniary loss, [the appellant] did not make out the tort”: at [70]; see also [33]-[40] (per Handley JA).
The plaintiffs relied on the observations of Brooking J in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636 at 645: (citations omitted)

Damage is the gist-of the action with … conspiracy. But the plaintiff is not obliged to prove what is sometimes called specific and sometimes called special damage. He will establish his cause of action if he induces the tribunal of fact to infer, from the tendency of the defendant's act in all the circumstances, that the act caused him some damage … It has often been said in these and other reported cases that damages are at large …

His Honour also observed that “damages are at large” means that a sum may be awarded which cannot be justified solely by reference to pecuniary loss, which has either been directly proved or is to be inferred: at 646.

As Mr Park and Mr Martin submitted, his Honour’s observations were made during a hearing as to damages, having separately heard and determined liability: Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637. In his judgment as to liability, Brooking J observed the somewhat unusual manner in which the proceedings were being conducted by the agreement of the parties, at 642:

The plaintiffs have not attempted to prove in any detail the losses they say they have sustained, nor have the defendants gone into evidence on the matter of damages. By consent of both sides, the plaintiffs have gone into evidence on damages only for the purpose of establishing that they have sustained some loss in consequence of the acts complained of, so that a necessary ingredient of the various torts may be found to have been established. …
Damage is an essential element of each of the torts alleged in this action. but with each of the torts, while damage is of the gist of the action, damages are at large in the sense that even though a plaintiff may fail to prove that any particular damage has been occasioned it, the plaintiff will succeed if damage can be inferred, that is to say, if the court is satisfied that what had been done by the defendant must in the ordinary course of business have inflicted damage on the plaintiff...

His Honour proceeded to conclude that he should not infer that the plaintiffs had suffered loss in consequence of some matters, such that the claim for damages failed, but inferred loss in respect of other matters, which then proceeded to the hearing as to damages: at 693.
In these proceedings, no order was made for the separate determination of liability and damages. Nor did the plaintiffs adduce any evidence of damage. Indeed, the defendants submitted that damage was not obvious where, as a result of the DOCA: unsecured claims against Metstech have been extinguished; Mr Jefferson remains a director of Metstech and Metstech IP; and Auxilia Holdings has increased its shareholding in Metstech for the relatively small DOCA contribution of $45,000. Mr Jefferson and Challenge have taken control of Metstech and its business through the DOCA, to the exclusion of the alleged conspirators, who lost their shareholding for, essentially, nil consideration.
The plaintiffs submitted that it did not matter that Auxilia Holding secured additional shares in Metstech through the DOCA where Metstech’s primary assets – being its goodwill and technology – were stripped as a consequence of the conspiracy. Metstech remained largely a shell company without assets to commercialise. The shareholding was of questionable, if any, value. The conspiracy was not wholly implemented as a consequence of interlocutory injunctions ordered by the Court on commencement of the proceedings. Nonetheless, Metstech was deprived of the benefit of its intellectual property where control of that intellectual property was retained by the conspirators, either by Mr Chou alone or together with other defendants. The plaintiffs had clearly suffered loss and damage, being the opportunity to commercialise Metstech’s products and further develop its intellectual property. The plaintiffs sought an order for an inquiry to occur into the quantification of such damage or alternatively for an account of any profits, such election to occur upon the granting of final relief in these proceedings.
Whilst it is permissible to elect between an account and damages in respect of the claims for equitable relief, the same cannot be said for a tortious claim in the absence of orders for separate determination of liability and damages. More importantly, no evidence was adduced of any damage. Nor can I readily infer that damage was suffered where, according to the administrator, Metstech and Metstech IP were insolvent, at least absent the continuing financial support of Mr Jefferson or Challenge. There was no evidence of the value of the intellectual property rights which the defendants sought to exploit outside of Metstech and Metstech IP, although the rights appear to have been valuable given the interest expressed in Metstech’s products and the lengths to which the defendants went to continue to exploit those rights. I accept that, by reason of the defendants’ actions and as a consequence of these proceedings, Metstech’s ability to develop and exploit its intellectual property rights and build its business has been interrupted and potentially harmed, but whether this has caused pecuniary loss is conjecture on my part and not based on evidence. As a consequence, the plaintiffs’ conspiracy claim fails.
Ordinarily, I would proceed to analyse the parties’ submissions in the event that I am wrong about this. However, given the length of this judgment already, I will not do so. I have endeavoured to make the relevant factual findings in the event that an appellate court needs to determine whether there was a conspiracy in the terms alleged.

OPPRESSION

The plaintiffs contended that the defendants had conducted the affairs of Metstech IP in a manner that was oppressive, unfairly prejudicial or unfairly discriminatory to the interests of minority shareholder Auxilia Holdings. The conduct included the actions involved in the conspiracy, assigning the trademark and domain name to 10Telco, deleting the G Suite information held for Metstech IP, and establishing a competing METS-LTE business. In addition, where Challenge had funded Metstech IP in recent years, failing to honour the agreement for Challenge to acquire a 20% interest in Metstech and Metstech IP was said to be unreasonable.
Mr Chou and Mr Poisson did not seek to be heard in respect of the oppression suit. Mr Park and Mr Martin submitted that there was no oppression where Auxilia Holding was impacted no differently than any other shareholder of Metstech IP. Metstech and Metstech IP were not obliged to accede to Challenge’s letter of demand. Metstech IP received valuable consideration for the trademark and domain name. Deletion of redundant emails did not establish detriment to Metstech IP. The METS-LTE business has not acted in competition with Metstech IP. There was no investment from Telco, US Co or SA Distributor, and, in any event, they were not customers of Metstech IP.

Principles

Section 232 of the Corporations Act provides that the Court may make orders under section 233 if:

(a)   the conduct of a company’s affairs; or
(b)   an actual or proposed act or omission by or on behalf of a company; or
(c)   a resolution, or a proposed resolution, of members or a class of members of a company;
is either:
(d)   contrary to the interests of the members as a whole; or
(e)   oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

As Brennan J noted in Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459, in respect of the statutory predecessor to section 232, that it is not oppressive for the directors of a company to make a decision which is manifestly prejudicial to and discriminatory against a member. To amount to oppression, it must also be unfair, that is, so unfair that reasonable directors who considered the disability the decision placed on the member would not have thought it fair to impose it: at 471-473. In an oft-cited passage of Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692; (1987) 5 ACLC 222, Young J explained the position post-Wayde as follows, at ACLR 704; ACLC 233 (some citations omitted):

… in my view as a result of the decisions … in Australia in Wayde & Anor v. N.S.W. Rugby League Ltd it has been accepted that one no longer looks at the word “oppressive” in isolation but rather asks whether objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair. In my view the court now looks at [the section] as a composite whole and the individual elements mentioned in the section would be considered as different aspects of the essential criterion, namely commercial unfairness.

The case law recognises that a closely-held company or “quasi-partnership” has features that form a species of oppression claims. In Re a Company (No 00709 of 1992); O’Neill v Phillips [1999] 2 All ER 961; [1999] UKHL 24, Lord Hoffman, with whom Lords Jauncey of Tullichettle, Clyde, Hutton and Hobhouse of Woodborough agreed, referred to, at 970:

… the standard case in which shareholders have entered into association upon the understanding that each of them who has ventured his capital will also participate in the management of the company. In such a case it will usually be considered unjust, inequitable or unfair for a majority to use their voting power to exclude a member from participation in the management without giving him the opportunity to remove his capital upon reasonable terms. …

In Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672, Spigelman CJ considered that irreconcilable differences in a quasi-partnership company do not of themselves constitute oppression or unfair prejudice but “the destruction of the personal relationship establishes a basis for granting relief in the usual case …” unless the person excluded from participation in management as a consequence of the breakdown was also responsible for it: at [89]–[90], [104]. In Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310, Campbell JA took a similar approach, noting that the emergence of irreconcilable differences may be one of several factors that together lead to a conclusion that oppression is made out: at [199].

Consideration

I am satisfied that the conduct of Metstech IP’s affairs was contrary to the interests of the members as a whole. By endeavouring to invalidate the shareholders agreement and to release Mr Chou and Welldesign in particular, Mr Park, Mr Corbett and Mr Chou were intent to thwart the DOCA proposal and free themselves from restrictions which prevented them from exploiting Metstech’s intellectual property in a NewCo. Similarly, they endeavoured to ‘warehouse’ Metstech IP’s trademark and domain name for future use by the NewCo.
In addition, Mr Park, Mr Corbett and Mr Chou endeavoured to make decisions which were unfairly prejudicial to the interests of Mr Jefferson in particular. Having funded Metstech and Metstech IP since inception, Mr Jefferson was excluded from management, as well as access to both companies’ bank accounts. The agreement to sell Metstech IP’s trademark and logo was particularly oppressive to Auxilia Holding as the largest shareholder.
The conduct fits the description of “unfair”, being so unfair that reasonable directors who considered the disability their decisions placed on the shareholder would not have thought it fair to impose it. This conduct occurred in a closely-held company, where Mr Jefferson was the object of the concerted actions of his fellow directors to destroy the company’s assets and value. Whilst Mr Jefferson had earlier been open to selling his shares to US Co, those plans were abandoned by Mr Park and his colleagues in favour of denuding the company of assets and continuing Metstech’s business in a NewCo, to the exclusion of Mr Jefferson.

Remedy

Auxilia Holding sought a buy-out order, being an order that the oppressed minority buy out the majority: Slea Pty Ltd v Connective Services Pty Ltd(No 9) [2022] VSC 136 at [1649]-[1808] (per Robson J). Such an order may be appropriate where the majority shareholders had engaged in a deliberate pattern of conduct calculated to strip Metstech IP of its assets and divert its business to other entities. Further, the object of the oppressive conduct was to exclude the plaintiffs from the Metstech business. It was said to be appropriate to relieve the oppression by permitting the plaintiffs to remain in that business to the exclusion of the oppressive majority. As to the value of the defendants’ shares, the Court could use $400, being the valuation at which Welldesign sold its shares in Metstech IP to Mr Corbett and Mr Martin, as approved by Mr Park, Mr Chou and Mr Corbett. Alternatively, the Court could use a valuation of $6,000, being the amount that the defendants determined the trade mark and domain licence to be worth.
In the event that I found oppression, Mr Park and Mr Martin did not oppose a buy-out by Auxilia Holding for market value without set-off or deduction as independently assessed.
For the reasons advanced by the plaintiffs, a buy out order is appropriate, where Mr Jefferson buys out Mr Park and Mr Martin. Metstech IP’s only assets of note are its trademark and domain name, these having been retrieved by the plaintiffs following settlement of these proceedings against Mr Smith and 10Telco. Mr Park and Mr Martin were previously content to sell these assets for $6,000 including GST. I accept that they did so in the course of seeking to ‘warehouse’ those assets for later use, and thus the figure may not represent its true value. But nor is the value of the domain name and trademark the same as the value of Metstech IP shares. Metstech IP also has debts. Once the confected goodwill figure of $2.6 million is excluded, Metstech IP has negative net assets of $1.34 million. There is no reason to think that this financial position has improved. On this basis, I consider that the value of Metstech IP’s shares is $1 a share.

COSTS

The plaintiffs have largely succeeded, albeit not in respect of the tortious claim of conspiracy. Mr Martin has enjoyed partial success in respect of copyright in the software and the existence of an exclusive licence, albeit not to the company he suggested and subject to an obligation to deliver up the source code, which he opposed. I note that Mr Poisson was amenable to some of the plaintiffs’ demands shortly after the commencement of these proceedings.

Having regard to these matters, I consider it appropriate to order that the plaintiffs costs be paid by Mr Park, Mr Chou and their companies, by Mr Martin and his company but limited to 40% of the plaintiffs’ costs, and by Mr Poisson and his company but limited to 20% of the plaintiffs’ costs.

ORDERS

The plaintiffs have requested that this judgment be supressed until they have had an opportunity to inspect it and notify the Court of any confidential information or trade secrets that should be removed prior to publication. I consider it appropriate to make a suppression order until the parties have had an opportunity to do so.
For these reasons I make the following orders:

Direct the plaintiffs, within seven days, to:

provide proposed orders reflecting these reasons;

identify any portion of this judgment which is said to be confidential; and

notify any errors or omissions.

Direct the defendants, within 14 days, to:

provide any proposed amendments to the plaintiff’s suggested form of orders;

advise which, if any, of the portions of this judgment said to be confidential are not confidential; and

notify any additional errors or omissions.

Restrict publication of this judgment until further order, such order to apply throughout the Commonwealth.

ADDENDUM

Following the delivery of judgment, the plaintiffs identified parts of the judgment as confidential. The defendants did not seek to be heard. Section 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) provides that the Court may make such an order where ‘the order is necessary to prevent prejudice to the proper administration of justice’. Preventing the disclosure of trade secrets constitutes an exception to the principle of open justice. As Hammerschlag J (as his Honour then was) observed in Wright Prospecting Pty Ltd v Hamersley Iron Pty Ltd (No 3) [2013] NSWSC 1069:

[43] One recognised exception to the principle of open justice is where publicity would destroy the subject matter of the proceedings because it will be in the interests of justice that the process for determination of the proceedings not destroy or seriously depreciate the value of the subject matter: see Hogan at [42].
[44] Another exception (based on the same notion — that is, that if an order is not made, unacceptable consequences in the context of the proper administration of justice will flow), is that the law may protect from disclosure trade secrets and personal or commercial information, the value of which, as an asset, would be seriously compromised by disclosure: see Hogan at [38] and [42]; Rinehart at [34]–[37] and the authorities cited there.
[45] The last mentioned exception is covered by s 8(1)(a)…

See also David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 at 305-306 (per Street CJ); HT v R (2019) 269 CLR 403; [2019] HCA 40 at [44]-[46] (per Kiefel CJ, Bell and Keane JJ); Wilson v Basson [2020] NSWSC 512 at [22] (per Ward CJ in Eq, as her Honour then was).

Further, as White J (as his Honour then was) observed in AB v Curry (No 3) [2015] NSWSC 1677 at [19]: “where litigation is brought to protect trade secrets or confidential information, it is usual to redact parts of a judgment so that the very object of the proceedings, being to protect confidential information or trade secrets, will not be defeated by the reasons themselves”. I have acceded to the plaintiffs’ request and, rather than redact the judgment, have re-written the offending portions in an effort to preserve the sense of the judgment whilst preserving trade secrets and confidentiality. I have also made small edits to the summary to correct grammatical infelicities.

**********

Decision last updated: 07 December 2022

Medium Neutral Citation:	Metstech Pty Ltd v Park [2022] NSWSC 1667
Hearing dates:	6 – 27 May 2022; final submissions 22 July 2022
Date of orders:	5 December 2022
Decision date:	17 November 2022
Jurisdiction:	Equity - Commercial List
Before:	Rees J
Decision:	Parties to bring in short minutes to give effect to these reasons, see [676].
Catchwords:	CONSPIRACY TO INJURE BY UNLAWFUL MEANS – electronics engineers and funder establish company to develop new products – designer is employee and shareholder – shareholder agreement imposes obligations for trade secrets and confidential information – Taiwanese manufacturer engaged – products launched and gain international interest – directors fall out over money – funder jettisoned from board and bank accounts – funder open to buy out – fellow directors prefer to ‘phoenix’ – raise false invoice by designer – register false security interest – appoint administrator without notice – set up new company without funder – continue to exploit company’s products and customer base – funder proposes deed of company arrangement (DOCA) – directors frustrate DOCA – delete data – ‘warehouse’ trademark and domain name – revoke shareholders agreement – release designer from obligations – assert products designed by Taiwanese manufacturer all along. COPYRIGHT – mining telecommunications – employee designs electronic devices – related company claims R&D grant – employee claims Taiwanese manufacturer undertook design work – use of ODMs and OEMs – employer seeks delivery up of PCB assemblies, schematics and documentation – employee denies works exist – expert evidence and contemporaneous documents suggest otherwise – principles at [554]-[566] – copyright vests in employer – copyright not assigned to related company – orders made for delivery up. COPYRIGHT – software – software developer writes software for no fee and becomes employee and shareholder – implied licence – exclusive licence –whether changes after became employee were “original” at [616]-[618] – licence included right to alter software at [227]-[230], [621]-[623] – licensee entitled to delivery up of source code. TORT – conspiracy to injure by unlawful means – damages the gist of the action at [650]-[659] – plaintiffs do not plead or adduce evidence of damage – fusion fallacy – conspiracy claim fails on this basis. CORPORATIONS – oppression – Corporations Act 2001 (Cth), ss 232, 233 – minority shareholder entitled to buy-out majority shareholders. CONFIDENTIAL INFORMATION – TRADE SECRETS – shareholders agreement imposes duties of confidentiality – directors and employee also bound by equitable obligations of confidence – company entitled to delivery up, damages and/or account.
Legislation Cited:	Circuit Layouts Act 1989 (Cth) Copyright Act 1968 (Cth), ss 10, 32(1), 29(1)(a), 35, 131A(1), 131C, 131D, 196 Corporations Act 2001 (Cth), ss 232, 233, 437A, 437D Court Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(a) Evidence Act 1995 (NSW), s 140(2) Income Tax Assessment Act 1997 (Cth), div 355 Industry Research and Development Act1986 (Cth), s 27A Judiciary Act 1903 (Cth), s 39(2)
Cases Cited:	Aardwolf Industries LLC v Riad Tayeh [2020] NSWSC 299 AB v Curry (No 3) [2015] NSWSC 1677 Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 37 IPR 542 AG Australia Holdings Limited v Burton [2002] NSWSC 454; (2002) 58 IPR 327 Anacon Corp Ltd v Environmental Research Technology Ltd [1994] FSR 659 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636 Ausmart Services Pty Ltd (In Liq) v Zheng [2019] FCA 2162 Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297; [2011] FCAFC 151 Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd [2002] FCA 528 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 BCI Finances Pty Ltd (In Liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227 Beck v Montana Constructions Pty Ltd (1963) 5 FLR 298 Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 Briginshaw v Briginshaw (1938) 60 CLR 336 Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 Centrestage Management Pty Ltd v Riedle (2008) 170 FCR 298; [2008] FCA 938 Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587 Commissioner of Taxation v Iannuzzi (No 2) [2019] FCA 1818 Dais Studio Pty Ltd v Bullet Creative Pty Ltd (2007) 165 FCR 92; [2007] FCA 2054 David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 EdSonic v Cassidy (2010) 189 FCR 271; [2010] FCA 1008 F45 Training Pty Ltd v Body Fit Training Company Pty Ltd [2020] NSWSC 1879 Fatimi Pty Ltd v Bryant [2004] NSWCA 140 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWSC 453 Gruzman Pty Ltd v Percy Marks Pty Ltd (1989) 99 FLR 116; (1989) 16 IPR 87 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 HT v R (2019) 269 CLR 403; [2019] HCA 40 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458; [2009] HCA 14 In the matter of Anna Bay Resort Pty Ltd [2022] NSWSC 331 International Furnaces Ltd v Reaves [1970] RPC 605 Jones v Dunkel (1959) 101 CLR 298 JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20; (2016) 329 ALR 625 Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 Lumen Australia Pty Ltd v Frontline Australasia Pty Ltd [2018] FCA 1807; (2018) 137 IPR 189 McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 Milltec Australia Pty Ltd v Burnes [2006] NSWCA 13 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692; (1987) 5 ACLC 222 Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 389-90; [1993] HCA 66 N P Generations Pty Ltd v Feneley (2001) 80 SASR 15; [2001] SASC 185 Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281 Re a Company (No 00709 of 1992); O’Neill v Phillips [1999] 2 All ER 961; [1999] UKHL 24 Redrock Holdings Pty Ltd v Hinkley [2001] VSC 91; (2001) 50 IPR 595 Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd [2018] QSC 98 Slea Pty Ltd v Connective Services Pty Ltd(No 9) [2022] VSC 136 Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) 194 FCR 142; [2010] FCAFC 149 Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310 University of Sydney v Objectivision Pty Ltd [2019] FCA 1625; (2019) 148 IPR 1 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 Victoria University of Technology v Wilson [2004] VSC 33; (2004) 60 IPR 392 Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459 Wilson v Basson [2020] NSWSC 512 Wright Prospecting Pty Ltd v Hamersley Iron Pty Ltd (No 3) [2013] NSWSC 1069 Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458; (2012) 299 ALR 621
Texts Cited:	Bently, Lionel, et al, Intellectual Property Law (5th ed, 2018, Oxford University Press) Brennan, David, Copyright Law (2021, Federation Press) Ricketson, Staniforth and Chris Creswell, Law of Intellectual Property (2001, Thomson Reuters) van Caenegem, William, et al, Intellectual Property in Australia (7th ed, 2022, LexisNexis) van Caenegem, William, Intellectual and Industrial Property Law (3rd ed, 2019, LexisNexis) Wigmore, John Henry, Wigmore on Evidence (3rd ed., 1940, Little, Brown and Co.)
Category:	Principal judgment
Parties:	Metstech Pty Ltd (First Plaintiff) Auxilia Holding Pty Ltd as trustee for the Auxilia Holding Trust (Second Plaintiff) Chad Jefferson (Third Plaintiff) Auxilia Investments Pty Ltd (Fourth Plaintiff) John Geldhart Park (First Defendant) Old Name Pty Ltd (Second Defendant) Chung-Chieh Chou (Third Defendant) Welldesign Electronics Pty Ltd (Fourth Defendant) Tracy Ann Sibthorpe (Fifth Defendant) Graeme Corbett (Sixth Defendant) Chlobo & Bluey Pty Ltd as trustee for the Super Dooper Super Fund Corbett Family (Seventh Defendant) Christopher Martin (Eighth Defendant) CMS Family Investments Pty Ltd (Ninth Defendant) Rorque Poisson (Tenth Defendant) Metstech (Trading) Pty Ltd (Eleventh Defendant) 10Telco Pty Ltd (Twelfth Defendant) Metstech IP Pty Ltd (Thirteenth Defendant)
Representation:	Counsel: Mr A Fernon SC / Mr D Meyerowitz-Katz (First, Second, Third, Fourth Plaintiffs) Ms D Woods (First, Second, Eight, Ninth Defendants) Mr V Bedrossian SC / Mr H Zhao (Third, Fourth Defendants) Mr R Poisson (In Person) (Tenth, Eleventh Defendants) Solicitors: SWS Lawyers (Plaintiffs) Sessions Legal (First, Second, Eighth, Ninth Defendants) Broaden Legal (Third, Fourth Defendants)
File Number(s):	2020/290942
Publication restriction:	Pursuant to the order of the Court of 17 November 2022, this judgment was supressed in its entirety until further order: see [675]. On 7 December 2022, this judgment was published as revised, removing references to confidential information and trade secrets: see [677]. The unrevised judgment continues to be subject to the suppression order of 17 November 2022.