The Change Group International PLC v City Exchange Mart Pty Ltd

FEDERAL COURT OF AUSTRALIA
The Change Group International PLC v City Exchange Mart Pty Ltd [2013] FCA 1048

Citation: The Change Group International PLC v City Exchange Mart Pty Ltd [2013] FCA 1048

Parties: THE CHANGE GROUP INTERNATIONAL PLC and THE CHANGE GROUP AUSTRALIA PTY LIMITED ACN 087 042 993 v CITY EXCHANGE MART PTY LTD ACN 113 024 203, RAO ARIF YASIN and INDRAVADAN SHAH

File numbers: NSD 618 of 2011

Judge: EDMONDS J

Date of judgment: 18 October 2013

Catchwords:
TORTS – passing off – retail unit get-up – whether respondent’s services were passed off as being the applicants’ services or associated with the applicants’ services – elements of passing off – relevance of intention in the cause of passing off – whether Jones v Dunkel inference can be drawn – whether applicant established sufficient reputation – difficulty of establishing reputation of foreign currency exchange services – reputation not established by applicant

CONSUMER LAW – misleading or deceptive conduct – ss 52 and 75B of the Trade Practices Act – ss 18 and 75B of the Competition and Consumer Act – get-up of retail units – whether the respondents, by use of external signage, are likely to mislead or deceive persons familiar with the applicants’ services – whether “a not insignificant number” of persons in the Australian community have been misled or are likely to be misled – no misleading or deceptive conduct

CONTRACTS – breach of contract – whether respondents breached duty to “well and faithfully serve” or use “best endeavours to promote the interest and welfare” of applicants’ business – whether causing a company to be incorporated while employed by applicant to carry on competing business after termination of employment constitutes breach – whether respondents breached duty not to use trade secrets and confidential information – strategy comprised of knowledge gleaned whilst working for applicants and from general observation – no breach of employment agreements

EQUITY – breach of fiduciary duty of fidelity – whether regard can be had to the cumulative effect of steps taken by respondents to establish a future competitor during their employment with the applicant – whether respondents used any confidential information – no breach of fiduciary duty of fidelity

Legislation: Trade Practices Act 1974 (Cth) ss 52, 53, 75B, 80, 82
Competition and Consumer Act 2010 (Cth) s 75B, Sch 2 – ss 18, 29, 232, 236
Evidence Act 1995 (Cth) s 80
Anti-Money Laundering And Counter-Terrorism Financing Act 2006 (Cth)

Cases cited:
Apand Pty Ltd v Kettel Chip Co Pty Ltd (1994) 52 FCR 474 cited
Australian Securities and Investment Commission v Hellicar [2012] 286 ALR 501 cited
Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1 cited
Brock v Terrace Times Pty Ltd (1982) 40 ALR 97 cited
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 followed
Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 cited
Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 cited
Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 cited
ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 followed
Creative Brands Pty Ltd v Franklin [2001] VSC 338 cited
Dare v Pulham (1982) 148 CLR 658 cited
Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326 cited
Digital Pulse Pty Ltd v Harris (2002) 40 ACSR 487 cited
Domain Names Australia Pty Ltd v au Domain Administration Ltd (2004) 139 FCR 215 cited
Edmonds v Donovan (2005) 12 VR 513 cited
Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431 discussed
Hansen Beverage Company v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 cited
Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169 cited
Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 cited
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 discussed
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 cited
Interlego AG v Croner Trader Pty Limited (1992) 39 FCR 348 cited
Jack Brabham Engines Ltd v Beare [2010] FCA 872 cited
Jones v Dunkel (1959) 101 CLR 298 discussed
Kettle Chip Co Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152 cited
Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 cited
Manildra Laboratories Pty Ltd v Campbell [2009] NSWSC 987 approved
Manly Council v Byrne and Anor [2004] NSWCA 123 cited
Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 81 IPR 354 cited
Optical 88 Limited v Optical 88 Pty Ltd (No 2) (2010) 275 ALR 526 approved
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited
Powell v Birmingham Vinegar Brewery Co Ltd (1896) 13 RPC 2 cited
R & C Products Pty Ltd (t/a Samuel Taylor) v Sterling Winthrop Pty Ltd (1993) 27 IPR 223 cited
Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 followed
Sterling Winthrop Pty Ltd v R & C Products Pty Ltd (1994) ATPR 41-308 cited
Thai World Import & Export Co Ltd v Shuey Shing Pty Ltd (1989) IPR 289 cited
Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 cited
W D & H O Wills v Philip Morris (1997) 39 IPR 356 cited
Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272 cited

Finn P, Fiduciary Obligations (2^nd ed., Law Book Company, 1977)

Meagher R, Heydon JD and Leeming M, Meagher, Gummow and Lehane: Equity, Doctrines and Remedies (4^th ed., Butterworths LexisNexis, 2002)

Date of hearing: 11-15, 18, 21 and 22 March 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 243

Counsel for the First and Second Applicants: Mr JM Hennessy SC and Mr JB Spinak

Solicitor for the First and Second Applicants: ClarkeKann Lawyers

Counsel for the First, Second and Third Respondents: Mr DA Lloyd with Ms R Withana

Solicitor for the First, Second and Third Respondents: John Orford & Associates

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 618 of 2011

BETWEEN:
THE CHANGE GROUP INTERNATIONAL PLC
First Applicant

THE CHANGE GROUP AUSTRALIA PTY LIMITED ACN 087 042 993
Second Applicant

AND:
CITY EXCHANGE MART PTY LTD ACN 113 024 203
First Respondent

RAO ARIF YASIN
Second Respondent

INDRAVADAN SHAH
Third Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

18 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants pay the respondents’ costs as agreed or taxed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 618 of 2011

BETWEEN:
THE CHANGE GROUP INTERNATIONAL PLC
First Applicant

THE CHANGE GROUP AUSTRALIA PTY LIMITED ACN 087 042 993
Second Applicant

AND:
CITY EXCHANGE MART PTY LTD ACN 113 024 203
First Respondent

RAO ARIF YASIN
Second Respondent

INDRAVADAN SHAH
Third Respondent

JUDGE:

EDMONDS J

DATE:

18 OCTOBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

By application filed 12 May 2011, the applicants seek declaratory and injunctive relief against each of the respondents in respect of alleged misleading or deceptive conduct, or conduct that is alleged likely to mislead or deceive, in contravention of the Trade Practices Act 1974 (Cth) (“TP Act”) and/or the Australian Consumer Law (“ACL”) in Sch 2 to the Competition and Consumer Act 2010 (Cth) (“C&C Act”) and in respect of the same conduct as alleged acts of the tort of passing off. The applicants also seek damages or, alternatively, in respect of the alleged acts of passing off, an account of profits.
The applicants also seek declaratory relief and damages against each of the second and third respondents for alleged breaches of fiduciary duty and contract in respect of their erstwhile employment by the second applicant or, alternatively, in respect of the alleged breaches of fiduciary duty, an account of profits or equitable compensation.
The application as filed included The Travel Group Pty Ltd as fourth respondent, Rao Kashif Yasin as fifth respondent and Vijayalaxmi Alajpur as sixth respondent but the applicants discontinued the proceedings against them by notice of discontinuance filed 5 March 2013, approximately one week before the commencement of the hearing.
Background
The Applicants
The first applicant, The Change Group International Plc (“CGI”), was founded in 1992 and by itself and through its subsidiaries provides foreign currency exchange and tourist services in various parts of the world. The corporate group of which it is the ultimate parent company is hereinafter referred to as “The Change Group” or “Change Group”.
CGI’s services are provided through its retail units situated in prominent locations in cities and airports throughout Europe (e.g., in London there are retail units located in areas such as Oxford St, Regent St, Piccadilly, Leicester Square and Covent Garden, and in Paris in such areas as the Champs-Elysee, Opera, Rivoli, Saint-Michel and Saint-Germain), the United States of America (e.g., in New York City there are retail units located in Times Square, opposite the Empire State Building and on 42^nd Street) and Australasia (e.g., in Sydney there are retail units located at Circular Quay, Opera Quays, Pitt St and George St).
The second applicant, The Change Group Australia Pty Limited (“CGA”), is a wholly owned subsidiary of CGI and has been operating in Australia since 2000.
As at 1 July 2005 when the impugned conduct in [1] above commenced, CGA had 11 retail units operating in Australia, eight in Sydney and three in Melbourne, all but one of which were stand-alone units:

CGA UNITS TRADING AS AT 1 JULY 2005

Commencement Date

Location

Closing Date

1. August 2000 452 George Street, Sydney Still trading

2. Late 2001 Imperial Arcade, 168 Pitt Street Mall, Sydney 12/11/2008

3. September 2002 Sydney Airport Departures Check-in H 15/09/2007

4. March 2003 115 Pitt Street, Sydney Still trading

5. December 2003 Darling Park Monorail Station, Sussex Street, Sydney 15/12/2009

6. February 2004 79 Oxford Street, Sydney 1/11/2009

7. July 2004 Sydney Airport Departures Check‑in G 1/07/2007

8. August 2004 222 Pitt Street, Sydney Still trading

9. October 2004 Midtown Kiosk, 184 Swanston Street, Melbourne Still trading

10. November 2004 167 Swanston Street, Melbourne Still trading

11. November 2004 67 Swanston Street, Melbourne Still trading
The Respondents

The second respondent (“Mr Yasin”), and the third respondent (“Mr Shah”) are former employees of CGA and the sole directors and shareholders of the first respondent (“CEM”).
CGA employed Mr Yasin from September 2001 until June 2005 and Mr Shah from October 2003 until May 2005. Messrs Yasin and Shah conceived, incorporated and established CEM as a competing foreign currency exchange business that operates through retail units in Sydney, Melbourne and Brisbane.
On 1 July 2005 CEM commenced trading from its first retail unit at 636 George Street, Sydney with external signage containing elements which the applicants claim is substantially identical with and deceptively similar to the external signage they use for the retail units through which they carry on their foreign currency exchange businesses.
The respondents currently operate 11 retail units, four in Sydney, four in Melbourne, and three in Brisbane, of which eight (those in Sydney and Melbourne) are situated on premises shared with “convenience store” style businesses (sometimes referred to as “implants”), and three (those in Brisbane) are stand-alone retail units. Details of units currently trading and those which have ceased trading are set out below:

CEM UNITS CURRENTLY TRADING

Opening Date Location

1. July 2006 37 Pitt St, Sydney

2. July 2006 419 Pitt St, Sydney

3. September 2006 228 Flinders St, Melbourne

4. November 2006 101 Swanston St, Melbourne

5. December 2007 55 Swanston St, Melbourne

6. August 2008 217 George St, Brisbane

7. November 2009 102 Queen St, Brisbane

8. December 2009 134 Elizabeth St, Melbourne

9. Mid 2010 13-17 Pitt St, Sydney

10. Mid 2010 700 George St, Sydney

11. October 2010 141 Queen St (Shop G-8, Albert Street Mall) Brisbane

CEM UNITS NO LONGER TRADING

Opening / Closing Date Location

1. July 2005 – Feb 2012 636 George St, Sydney

2. Jan 2006 – Nov 2009 244 Pitt St, Sydney

3. Mid 2009 – April 2012 614 George St, Sydney

4. July 2009 – June 2010 523 Phillip St, Gateway Building Sydney

5. June 2010 – April 2011 127 Oxford St Sydney
The Pleadings
Statement of Claim
Applicants’ Services and Reputation

In their Statement of Claim (“SOC”), the applicants plead that CGI, by itself and through its subsidiaries, including CGA, provides foreign currency exchange and tourist services through retail units situated in Europe, the United States of America and Australasia (SOC [10]); that CGA is, and has been since September 2000, the provider of CGI’s services in Australia and New Zealand (SOC [12]); and that CGI’s retail units have, since 1994, had a uniform design and branding, the features of which include external signage made up of the following elements:
(a)A predominant colour scheme comprising CGI’s corporate blue being Pantone 288 and white;
(b)white capitalised lettering;
(c)uniform font type for lettering thereon;
(d)the capitalised word MONEY in large font;
(e)an arrangement of some words vertically;
(f)an absence of any prominent corporate logo; and
(g)an overall look and feel consistent with the above elements: SOC [13]
(hereinafter referred to as “the pleaded Get-up”).
The applicants acknowledge in their particulars to the pleading at SOC [13] that there are a number of retail units (limited to seven) operated by the applicants which do not feature the pleaded Get-up due to planning and landlord restrictions or because they are recently established test marketing units focused on outgoing customers.
The applicants plead that the pleaded Get-up is and has been visible and prominent: (a) in the presentation of the applicants’ retail units; and (b) in the applicants’ advertising and promotion of its services: SOC [14]; and that the applicants’ services have been extensively advertised, promoted and supplied: (a) internationally, since 1994; and (b) in Australia, since 2000, under and by reference to the pleaded Get-up: SOC [15].
The applicants plead that by reason of the matters set out in SOC [9]–[15], they have established goodwill and reputation in each of the elements of the pleaded Get-up and in any combination of those elements: SOC [16]; and, by reason of matters pleaded in SOC [10]–[16], the advertising, promotion and provision of currency exchange and tourist services in Australia by reference to or incorporating the pleaded Get-up or a combination of its elements, signifies or is likely to signify to persons in Australia that such services are: (a) provided by or on behalf of the applicants; and/or (b) provided with the licence of, the sponsorship or approval of, or in some association with, the applicants: SOC [17].
The Respondents’ Conduct
The applicants plead that CEM carries on the business of providing foreign currency exchange and tourist services (although the latter is denied by the respondents) in Australia through retail units: (SOC [18]); and that further or alternatively CEM, Mr Yasin and Mr Shah have jointly or in association with each other conducted the business or businesses of providing foreign currency exchange and tourist services in Australia through retail units: (SOC [19]).
CEM
The applicants plead that CEM’s retail units feature external signage which includes the following elements:
(a)A predominant colour scheme comprising blue and white;
(b)white capitalised lettering;
(c)uniform font type for the lettering thereon;
(d)the capitalised word MONEY in large font;
(e)an arrangement of some words vertically;
(f)an absence of any prominent corporate logo; and
(g)an overall look and feel consistent with the above elements: SOC [21].
SOC [21] describes this as “(the CEM Get-up)”, but as was aptly observed by Perram J in Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 81 IPR 354 at [23]: “[T]he making of an allegation by an applicant that a respondent’s product has a particular get-up, beyond and above it having particular features, serves no purpose”.
The applicants plead that CEM’s services are not provided by or with the licence, approval or sponsorship of the applicants: SOC [22]; that CEM does not have the licence, approval or sponsorship of the applicants to use the pleaded Get-up: SOC [23]; and that CEM’s external signage is substantially identical with and deceptively similar to the pleaded Get-up: SOC [24].
During the course of the hearing, it was conceded, in cross-examination, first by Dr Zackariya-Marikar, the Chairman of CGI and a director of CGA, and second by Mr Carl Bailey, the General Manager Australasia of CGA, that the CEM retail unit at 141 Queen Street, Brisbane was not substantially identical with, nor deceptively similar to, that of the pleaded Get-up.
TP Act/ACL Claims
The applicants plead that by reason of the matters set out in SOC [18], [19] and [21], each of the respondents, or any of them, have represented to persons in Australia, including consumers, that:
(a)their services are the applicants’ services;
(b)their retail units are “branches” of the applicants’ business;
(c)their services are associated with the applicants or the applicants’ services;
(d)their services are provided by or with the licence, sponsorship or approval of the applicants; and
(e)they are CGA or a company associated with the applicants,
(“Representations”): SOC [31], and that each of the Representations is false, misleading or deceptive or likely to mislead or deceive (SOC [35]).
Finally under this head, it was pleaded, further or alternatively, to the extent that the conduct referred to in SOC [31] and [33] was carried out by CEM, that each of Mr Yasin and Mr Shah has, within the meaning of s 75B of the TP Act/s 75B of the C&C Act:
(a)Aided, abetted, counselled or procured the contravention of ss 52 and 53 of the TP Act and/or ss 18 and 19 of the ACL;
(b)induced the contraventions referred to in sub-paragraph (a) above;
(c)directly or indirectly been knowingly involved and concerned in or a party to the contraventions referred to in sub-paragraph (a) above: SOC [38].
Passing Off
Further or in the alternative, the applicants pleaded that the conduct of each of the respondents referred to in SOC [31]–[35] was carried out with the intention of appropriating and taking advantage of, and so as to appropriate and take advantage of, the applicants’ reputation and goodwill: SOC [39].
By reasons of the matters set out in SOC [31]–[35], [37] and [39], it was pleaded that each of CEM, Mr Yasin and Mr Shah has:
(a)Passed off CEM’s services as being the applicants’ services or as being associated with the applicants or the applicants’ services, or having the applicants’ licence, sponsorship or approval when in fact it or he did and does not;
(b)passed itself or himself off as being associated with the applicants or having the applicants’ licence, sponsorship or approval;
(c)is jointly liable for such passing off: SOC [40].

Further or alternatively, it was pleaded that, by reason of the matters set out in SOC [18] and [19], to the extent that any of CEM, Mr Yasin or Mr Shah did not itself or himself undertake the acts pleaded in SOC [40], at all material times it or he entered into a common design with the persons who undertook those acts or participated with or induced, directed or procured the persons who undertook those acts to do those acts and, accordingly, is liable for authorising the doing of an act or as a joint tortfeasor : SOC [42].
Fiduciary Duty of Fidelity and Contract
It was pleaded that by reason of the conduct of each of Mr Yasin and Mr Shah pleaded in SOC [47], [48] and [51]:
(a)Each of Mr Yasin and Mr Shah has breached his fiduciary duty of fidelity towards CGA; and
(b)each of Mr Yasin and Mr Shah has breached cll 2.1 and 2.5 of his Employment Agreement with CGA: SOC [52].
It was further pleaded that by reason of the conduct pleaded in SOC [31]–[34] and SOC [37]–[42], each of Mr Yasin and Mr Shah has breached cl 2.5(3)(a) of his Employment Agreement with CGA: SOC [53].
Relief Sought
The applicants claim relief against the respondents on the following bases.
TP Act/ACL claims
First, they seek a declaration that each of the respondents has engaged in misleading or deceptive conduct, or conduct that is likely to mislead or deceive, in contravention of ss 52 and 53 of the TP Act and/or ss 18 and 29 of the ACL, by offering and providing its services under or by reference to the pleaded Get-up.
Further or alternatively, they seek a declaration that each of Mr Yasin and Mr Shah has:
(a)aided, abetted, counselled or procured CEM to contravene ss 52 and 53 of the TP Act and/or ss 18 and 29 of the ACL; and/or
(b)induced CEM to contravene ss 52 and 53 of the TP Act and/or ss 18 and 29 of the ACL;
(c)been, directly or indirectly, knowingly concerned in, or a party to the contraventions of ss 52 and 53 of the TP Act and/or ss 18 and 29 of the ACL by CEM.
They seek an order pursuant to s 80 of the TP Act/C&C Act and/or s 232 of the ACL that each of the respondents be permanently restrained, by themselves, their servants, agents or otherwise, from, in trade or commerce:
(a)making the Representations; and
(b)aiding, abetting, counselling, procuring, inducing or being directly or indirectly knowingly concerned or a party to, the making of the Representations by the other.
They seek damages pursuant to s 82 of the TP Act/C&C Act and/or s 236 of the ACL.
Passing off claim
They seek a declaration that each of the respondents, or a combination of one or more of them, has engaged in passing off by making the Representations.
They seek an order that each of the respondents, by themselves, their servants, their agents or otherwise be restrained from:
(a)passing off their services as being the applicants’ services or as being associated with the applicants or the applicants’ services, or having the applicants’ licence, approval or sponsorship; or
(b)passing off themselves as being associated with the applicants or the applicants’ services, or having the applicants’ licence, approval or sponsorship; or
(c)offering their services under by reference to the pleaded Get-up or any get-up substantially the same as or confusingly similar to the pleaded Get-up.
They seek an account of profits and an order for payment of all sums found due upon the taking of that account, or alternatively, damages, in respect of the acts of passing off.
Breach of fiduciary duty claim
They seek a declaration that each of Mr Yasin and Mr Shah has breached his fiduciary duty of fidelity not to place himself in a position where his personal interest is in or could be in conflict with his duty to CGA, by engaging in activities directed towards establishing and operating a business or businesses in competition with CGA’s business while serving CGA.
As against Mr Yasin and Mr Shah, they seek an account of profits and an order for payment of all sums found to be due upon the taking of that account, or alternatively, damages or equitable compensation.
They seek a declaration that each of Mr Yasin and Mr Shah has breached cll 2.1, 2.4 and 2.5(3)(a) of their respective employment agreements with CGA.
As against Mr Yasin and Mr Shah, they seek damages for breach of contract.
Defences
In their Defences, the respondents in relation to SOC [13]: (a) deny that the applicants’ retail units have since 1994 had a uniform design branding as alleged; (b) say that at all material times staff members employed by the applicants to work at the applicants’ retail units have worn uniforms which display the applicants’ corporate logo; (c) say that the name “The Change Group” and a distinctive “The Change Group logo” is prominently displayed on the back wall of the premises at 167 Swanston Street, Melbourne and on fixed and sliding glass entry doors to those premises; (d) say that at those premises there are two currency boards or “Red Boards”, both of which prominently display at the top “The Change Group” and the applicants’ distinctive corporate logo; and (e) otherwise deny the paragraph.
In relation to SOC [21] the respondents say that the premises at 217 George Street, Brisbane are atypical of the retail outlets currently operated by CEM in that: (i) the premises at 217 George Street, Brisbane together with 141 Queen Street Mall, Brisbane and 102 Queen Street Mall, Brisbane are the only premises currently operated by CEM which are stand-alone retail outlets; (ii) all others currently operated by CEM are located in various convenience stores and within shopping malls throughout Australia; (iii) the other retail units operated by CEM have a variety of different colour schemes and arrangement of words; and (iv) each of the premises operated by CEM has prominently displayed at least one currency board or red board with “City Exchange Mart” prominently depicted at the top.
Otherwise, generally speaking, the respondents either did not admit the applicants’ pleadings, denied them or did not plead to them.
Commencement of Proceeding
An aspect of this case which I have some difficulty comprehending is the apparent apathy and delay on the part of the applicants in taking any steps to protect what was described in their solicitors’ letters to the respondents of 15 April 2011 as: “your flagrant disregard for our clients’ rights under each of the causes of action referred to above ….”, and that such disregard had “caused and continued to cause serious damage to our clients and their reputation”. It was common ground that CEM opened its first retail unit for business on 1 July 2005; and by September of that year, Dr Zackariya-Marikar (“Dr Marikar”), following a conversation with his former wife, Ms Bette Zackariya, subsequent to her visit to Australia, had become aware of that fact and that the retail unit used blue and white signage and other similarities to CGI’s signage. Nothing was done until Dr Marikar visited Australia in early 2006 to observe CEM’s business operations. He was unwell at the time and on his return to London he was diagnosed with cancer. He underwent extensive treatment and was required to take a lesser involvement in the operations side of CGI’s business. He was not able to travel long distances until his illness went into remission in December 2010.
These circumstances were proffered as the reason why no proceedings were commenced until May 2011. In cross-examination, Dr Marikar was asked a number of questions going to this matter. The transcript reads (T104/20 – 47):
“The decision making within The Change Group in the period of your illness between 2006 and 2011, you were still involved in the decision-making process in that period. That’s right, isn’t it?---All major decisions were – I got – I wasn’t involved. I was informed or I approved.
And was it your decision to commence these proceedings?---Yes, it was my decision and I had to convince the board of directors and others associated with it.
Was the commencement – I withdraw that. Was the damage that you say you were concerned about that was being done to The Change Group’s image by CEM something that was on your mind in the period between January 2006 and January 2011?---Yes.
What did you do about that concern or the fact that that belief that there was damage being caused?---I – being diagnosed of cancer, sometimes I have a small remission and I used to – I would ask the consultants whether I am capable of travelling to have a first look at it. But I was not cleared to travel long distances until December 2010.
Thank you?---But I will not take a decision about any litigation without me physically viewing the units.
I want to suggest to you that if you genuinely were concerned about the damage that you complain of in this case that is being done to The Change Group’s reputation, you would have done something about this even if it included authorising someone else to perform the investigations?---I wouldn’t give – delegate that decision because this is a very important decision. Litigation is a very, very cumbersome, very difficult, very important decision and I’m the only one who could make that decision. And I wouldn’t take that decision until I have viewed the units personally.”
The matter was not taken any further, but I am not satisfied that Dr Marikar’s health problems fully explain why it took nearly six years from the date CEM opened its doors for business at 636 George Street, Sydney until these proceedings were commenced; and do not explain at all why, short of proceedings being commenced, no attempt was made by the applicants, either directly or through their solicitors, to have the respondents desist conduct, on an ever increasing scale, perceived as amounting to contraventions of the applicants’ rights under statutory and common law, and allegedly causing serious damage to the applicants and their reputation. In the years that have elapsed from the time (1 July 2005) CEM opened its first retail unit at 636 George Street, Sydney until the proceeding commenced in May 2011, the number of CGA retail units operating in Australia grew from 12 in number to 25 in number and the number of CEM retail units operating in Sydney, Melbourne and Brisbane had grown from one in number to 14 in number. By his own admission, Dr Marikar was not actively involved in operational decision-making from January 2006 until December 2010 – he was only informed or he approved – and yet on this one matter, no decision could apparently be taken by the Board unless Dr Marikar made the decision. The only conclusion I can infer is that the other members of the Board and the senior executives on the ground were not particularly concerned at either the perceived contraventions of the applicants’ legal rights, nor the damage to the applicants and their reputation that was allegedly being caused, by the respondents’ conduct over a number of years.
The Evidence
Affidavit Evidence
The Applicants’ Lay Evidence
The applicants read a number of affidavits from directors or senior executives of CGI and/or CGA:
1.Mr Sacha Zackariya, the son of Dr Zackariya-Marikar and Ms Bette Zackariya who, together with his parents, founded CGI. He is presently the Chief Executive Officer of CGI. He swore two affidavits in chief (Exs 1 and 2), and was cross-examined.
2.Dr Zackariya-Marikar, the Chairman of CGI, swore two affidavits, one in chief and one in reply (Exs 3 and 4), and was cross-examined.
3.Mr Paul Crombie, the General Manager, Western Europe of CGI, who was employed by CGA as its Operations Manager, Melbourne between November 2004 and June 2008, swore two affidavits, one in chief and one in reply (Exs 5 and 6), but was not required for cross-examination.
4.Mr Paul McGowan, the Operations Manager for CGA in Sydney, swore two affidavits, one in chief and one in reply (Exs 7 and 8), and was cross-examined.
5.Ms Bette Zackariya, the former wife of Dr Zackariya-Marikar, and a director of CGI, swore two affidavits, one in chief and one in reply, of which only the first was read (Ex 10), but was not required for cross-examination.
6.Mr Stephen Collins, the Director of Resources at CGI, swore an affidavit in chief (Ex 12), but was not required for cross-examination.
7.Ms Clara Brennan, the Head of Compliance at CGI, swore an affidavit in chief (Ex 13), but was not required for cross-examination.
8.Mr Paul Meehan, the Director of Operational Performance at CGI, swore two affidavits, one in chief and one in reply (Exs 16 and 17), and was cross-examined.
9.Mr Raja Hayat (also known as Sharaz Hayat), the General Manager, Northern Europe, for CGI, swore two affidavits, one in chief and one in reply (Exs 18 and 19), and was cross-examined.
10.Ms Gaik Ong, the Operations Manager for CGA in Melbourne, swore two affidavits, one in chief and one in reply (Exs 22 and 23), but was not required for cross-examination.
11.Mr Carl Bailey, the General Manager Australasia of CGA, swore three affidavits, one in chief and one in reply (Exs 24, 25 and 26), and was cross-examined.
The applicants also read the following affidavits from persons outside, but having commercial relationships with, The Change Group:
1.Ms Andrya Chan, an auditor employed by Walker Wayland, Chartered Accountants, New South Wales, a partner of which, Mr Grant Allsopp, was the appointed auditor of CGA, swore an affidavit in chief (Ex 9), and was cross-examined.
2.Mr Glyn Jones, the Managing Director of London Luton Airport, swore an affidavit in chief (Ex 11), but was not required for cross-examination.
3.Mr Roy Smith, the sole director of CIDC Group Pty Ltd, a company providing a complete range of services for the design and construction of interiors and fit-outs in the commercial, retail, corporate, hospitality, healthcare and residential sectors, swore an affidavit in reply (Ex 20), and was cross-examined.
4.Mr Chris Glastras, the Manager of Retail, Policy and Contract at Sydney Airport for the period 2003 to 2008, swore an affidavit in chief (Ex 21), but was not required for cross-examination.
Lay evidence filed but not read by the respondents has in part been tendered by the applicants:
1.A redacted version of the affidavit of the second respondent (“Mr Yasin”) affirmed 9 May 2012 (Ex 29).
2.A redacted version of the affidavit of the third respondent (“Mr Shah”) affirmed 9 May 2012 (Ex 30).
3.A further redacted version of the affidavit of Mr Shah (Ex 38).
4.A redacted version of the affidavit of Mr Rhod Webb, sign writer, sworn 8 May 2012 (part of Ex 35).
5.A redacted version of the affidavit of Mr Gary Phillips, sign writer, sworn 4 May 2012 (part of Ex 35).
The Applicants’ Expert Evidence
The applicants read the following affidavits by way of expert evidence:
1.Mr John Dorazio, a partner of Walker Wayland, Chartered Accountants, Western Australia, swore an affidavit (Ex 14) attaching a report dated 27 January 2012. He was not required for cross-examination.
2.Mr Jarrod Vassallo, the Senior Strategist at Landor Associates with 10 years’ experience in the Marketing and Branding profession, swore an affidavit (Ex 15) attaching a report dated 12 August 2012. He was cross-examined.
3.Mr Jason Croston, Chartered Accountant, and a director of SRJ Accountants, swore two affidavits, one in chief and one in reply (Exs 32 and 33), attaching reports dated 25 January 2012 and 22 July 2012 respectively. He was cross-examined.
The applicants also read the affidavit of Mr Goodwin Cullimore Allen Gower, Chartered Accountant, of GowerJones & Co Pty Ltd (Ex 34) and his report dated 1 June 2012 (save for pages 49–52), which had been filed but not read by the respondents.
The Respondents’ Lay Evidence
The respondents filed four affidavits, one by each of Mr Yasin and Mr Shah and one by each of Mr Webb and Mr Phillips, the two sign writers responsible for installing signage at CEM’s retail units in Sydney and Melbourne, but did not read any of them.
The Respondents’ Expert Evidence
The respondents read two affidavits sworn by Mr Ermino Putignano, Brand Consultant and former managing director of Future Brand FHA Pty Ltd, one in chief and one in reply (Exs A and B). Exhibit A contains within it Mr Putignano’s report (dated 1 June 2012) and a report dated 11 October 2013 is attached to Ex B (pages 3–25). He was not required for cross-examination.
The Lay Witnesses
In this section I do not canvass all the evidence given by lay witnesses in chief, in cross-examination or in re-examination, only such evidence given by those lay witnesses on matters relevant to the resolution of the issues in the proceeding.
Mr Sacha Zackariya
Some aspects of Mr Zackariya’s evidence in chief, in particular in Ex 1, are, in my view, telling. One section of Ex 1 is devoted to what is said to be CGI’s unique strategy of locating retail units in busy high street locations and on a multiple basis. He refers to a number of examples – on one street alone in Copenhagen (Stroget), CGI has five retail units; it has three retail units in Times Square; it has two retail units, one opposite the other, at Paris Opera; and in Vienna it has three units on Kartner Strasse. This strategy is not of course, and could not be, part of the pleaded Get-up, but, according to Mr Zackariya, it is a strategy towards which CEM’s conduct, but not its impugned conduct, is directed. For that reason, it is of concern to the applicants. At [29] of Ex 1 Mr Zackariya says:
One of the complaints that CGI makes in this proceeding is that there is a pattern, it believes, of CEM establishing retail units in close proximity to CGI’s retail units, thereby appropriating trade that CGI would otherwise enjoy as part of the application of its corporate strategy of establishing multiple units within particular locations. I have caused to be set out in a schedule the instances to CGI’s knowledge where CEM has established retail units either on the same street or within a block of CGI. A copy of the schedule is at Annexure SZ-6 of the bundle.
At [30] to [32] of Ex 1, Mr Zackariya elaborates on this concern by reference to the fact that CGI’s competitors place more emphasis than CGI does on advertising in the print and television media and by way of promotion of sporting teams, whereas CEM has “piggy-backed” CGI’s marketing strategy. He says:
In the course of performing my duties I routinely analyse the strategies and performance of CGI’s competitors. In the course of doing so I have observed that CGI pursues a different strategy to its main competitors in being located in prominent locations to attract custom, and places significance on the prescribed service in its signage and associated look and feel of its retail units as its main form of advertising. On the other hand each of Post Office, Forex Bank, Travelex, UAE and American Express utilise corporate names and logos as brands; in my experience, their units are not generally located in the prominent high rent areas in which CGI operates.
I have observed that CGI’s competitors place more emphasis than CGI does on advertising (in particular) in trade journals, magazines, tourist publications, television advertising, promotion of cricketing/sporting teams and the like.
One concern CGI has in relation to CEM’s conduct in relation to the design of its external signage and its location of units is that it is mirroring CGI’s unique placement of units which enjoys the benefit of an absence of competitors in the same area.
In another section of Ex 1, Mr Zackariya refers to that part of CGI’s marketing strategy that places emphasis on attempting to locate retail units within international airports. As at July 2005, CGI was located at the following airports:
(a)Sydney International Airport.
(b)Vienna International Airport.
(c)Tallinn International Airport.
(d)Reykjavik Airport (owned and operated by Islands Banki using CGI get-up under licence).

In cross-examination, it was put to Mr Zackariya that The Change Group’s business is directed at the impulse buyer. Initially he rejected this (T50/27), but faced with the content of a document annexed as “SZ-14” to his affidavit (Ex 1) which he described as a codification of “CGI’s Marketing strategy” he was forced to resile from that outright rejection and concede that The Change Group are “marketing ourselves to a large degree to … [the passing, impulse buyer] … but it depends on the location” (T51/39).
I was not impressed by Mr Zackariya’s evidence on this point; I got the clear impression he was seeking to disavow reliance on SZ-14 which he himself had put into evidence, or play down its importance. He went on to say: “We have locations which are predominantly geared towards repeat customers” (T51/39–40). He was then asked (T52/33–36) and answered (T52/36–40):
See, this document says that you’re not relying on people to come to us just because you’re The Change group, and you’re not relying on businessmen, women, backpackers, to walk from the other side of town just to come to us. That’s right, isn’t it?---In this document, in 2001, that would be correct. Subsequent to that, what we have in Australia, as you will have no doubt seen from other parts of the affidavits, is that we have a much bigger amount of local customers who regularly frequent us, and if you look at the ratios, you will see that in Australia, we enjoy much higher ratios of sales than other parts of the world.
When he was asked where in his affidavit was there evidence about getting more repeat customers in Australia, he could not identify where in his affidavit this evidence was to be found. He said (T52/44–45): “It’s the ration [sic] of sales to purchases”, but did not elaborate and the matter was not pursued in re-examination. My subsequent review of the material in this section does not evidence the ratio of customers who are impulse customers to those that are repeat customers and it certainly does not evidence a greater ratio of repeat business in Australia compared to other parts of the world.
Moreover, the suggestion in Mr Zackariya’s evidence in the transcript reproduced in [57] above that SZ-14 is out of date, is not borne out by Mr Bailey’s evidence at [23] of Ex 24 which refers to The Change Group’s “Operations Strategy Manual”, extracts of which are annexed at CB-38. These extracts are pp 3, 4, 6 and 41 of SZ-14.
A little later (at T61/41) it was put to Mr Zackariya that there is little repeat business available to The Change Group units from tourists. He responded that if this is a reference to tourists in general, he would have to disagree. He was then taken back to SZ-14 and asked (T62/7–27):
Could I invite you please to have a look at what the author of [the] marketing strategy document said about this at page 1343. Have you got that page?---Yes.
Just read to yourself the first paragraph of that page?---Yes.
You would agree, don’t you, that whoever wrote this document was of the view that there was little repeat business in foreign customers. That’s right, isn’t it?---As written here.
Yes, And I think you have told his Honour already that you are not aware of any document which is being created by the Group which supersedes this document. That’s right, isn’t it?---This particular document, perhaps not, but there’s plenty of other material that supersedes this.
Well, let me just ask you some questions about the importance of this document. Firstly, this is the document that you annexed to your affidavit. That’s right, isn’t it? ‑‑-It is.
You did that because you knew it was a document that was important in terms of setting out what the Change Group’s marketing strategy is. That’s right, isn’t it?---Yes.
Mr Zackariya was then asked a number of questions as to the use to which the SZ-14 document was put (T62/29–45):
And you know that the use to which this document is put, at least in part, is to train some of the cashiers that are manning your units. That’s right, isn’t it?---No.
Well, one of the things this document does to your knowledge is tells new employees or existing employees something about the business and how to do their job. That’s right, isn’t it?---No.
I will just draw this to your attention. You see, at 1340, [p 3, SZ-14] Mr Zackariya, the second paragraph, can I just invite you to read the second last sentence and the last sentence and by all means, if you need, for context, as a matter of fairness, read the preceding part of the paragraph?---Yes.
Do you agree now that this document, at least in part, is marketed at the cashiers that you are employing?---No.
Well, how do you explain what’s said then in the part that I have just taken you to?
Mr Zackariya did not answer this last question, but went on to say (T62/45 – T63/5):
This document is the marketing strategy document, which is a high level training document for people moving into management. The purpose of the document is to help people to understand overall strategies and thoughts and if you notice, the actual document refers repeatedly to a marketing book called The Marketing Plan which was actually designed and written for people who have never done a MBA, don’t have a Bachelors in Business Administration and this is our attempt to help up-skill potential future managers and was written in 2001 and was out and about and present when the – your clients were employed.
I do not accept Mr Zackariya’s denial of the proposition that the SZ–14 document was used in part to train staff in the face of the passage which he was asked to read at the end of the second paragraph on p 3; nor in the face of the last three paragraphs on p 22; the last paragraph on p 23 and the third paragraph on p 30.
The SZ-14 document is instructive as to the customer market to which The Change Group pitches its foreign exchange services and the strategies it deploys in that market. It is instructive because it is CGI’s own statement made independently of this case and prior to it being commenced. I regard it as having far greater probative value than the evidence given by the directors and senior executives of CGI and CGA on this subject.
(1)At p 3, SZ-14 reads:
Whenever marketing is mentioned what does one immediately think of? Well I am sure the answer is “advertising”. However, when have you ever seen The Change Group on the TV, radio or in the newspapers? Never! So, what is the point of this Manual? Well, The Change Group adopts a different marketing strategy and there is, as you are about to find out, more involved in marketing then [sic] just adverts.
The Change Group actually spends a lot of money on marketing every year. Where? Well we are sitting in our marketing strategy everyday. Yes our branches. They are all situated in very prominent locations, where the rent is extremely high. This is essential to us if we are to fulfil our promises to the customers in our mission statement we must be easily accessible and clearly within sight to our potential customers. Furthermore, to do this our branches must always reflect quality to the passer-by, so our maintenance costs are also high. However, above all you are central to our marketing strategy. Your smart and friendly appearance helps greatly in drawing the passer-by into our branch.
This then takes us to the question: “To whom are we marketing ourselves?” Well our target customers are as follows:-
(i)        The pedestrian foreign travellers who are going shopping; and
(ii)       The local travelling public.
These are very specific groups and the main phrase to keep in mind here is “The Impulse Buyer”. So, you can now see that to advertise in the traditional sense would be ineffective for our purposes. We want the pedestrian to stop, notice us and come in. Therefore, we are not relying on people to come to us because we are The Change Group or for businessmen/women and backpackers to walk from the other side of town just to come to us.
Of course such customers do exist and they form greater and lesser proportions of our clientele in our different locations around the world. First and foremost, however, is still the passing impulse customer.
(Emphasis added.)
(2)At p 4, SZ-14 relevantly reads:
Where is our Market Place? Well, the book’s definition of a “business jungle” is very suitable for us. Our jungle is the High Street, with all of the tall buildings, the roar of traffic and the chaos on the pavements. There are several thousand tourists roaming through our jungle everyday and the competition could be lurking behind every tree, ready to pounce on our prospective impulse purchaser.
So, why should a customer come to us and not go to the competition? Well The Change Group prides itself as being in the “Non-drip mud” class of the Foreign Exchange Market. This means that we provide a quick, efficient and high quality service all done with a smile. Most people do not want to go to some back street or shoddy outlet and would rather come to us for a professional service.
(Emphasis added.)
(3)At p 6, SZ-14 relevantly reads:
Our market also has “Low Price” and “High Price” levels. The Change Group charges local customers a very low sell price in order to generate repeat business. Whilst charging the foreign customers a high price because we are focused on impulse purchases and know that there will be little repeat business.
So, we have already seen some of our market segments:-
(i)        Locals buying foreign notes;
(ii)       Foreigners selling foreign notes;
(iii)      Impulse one-off buyers;
(iv)      Backpackers; and
(v)       Businessmen/women.
As we have already seen we have targeted the foreign impulse shopper and the locals going on holiday as our major customers.
(Emphasis added.)
(4)At p 20, SZ-14 reads:
As we have already discussed in the Introduction, The Change Group does not advertise in the traditional way. This chapter should then further clarify why this is the case.
There are two main ways in which a company can communicate with its customers: These are in an impersonal and a personal manner.
Under Impersonal Communication The Change group really only uses point-of-sale displays (i.e. The rate boards and signs for phone cards) and some promotions (i.e. The Buy-back Service).
Our most important form of communication, however, is Personal Communication. This is because we focus on passing trade, meaning we concentrate on direct face-to-face meetings as the major element of our “Communications Mix”.
Nevertheless, the impersonal aspect is still extremely important to us. Potential customers will inspect our rate boards because they have a need for a particular currency that they cannot satisfy without our service. Some customers will already have a figure in mind while others just want to purchase the currency. Therefore, some might shop around and make comparisons before deciding on which company satisfied their needs most fully. On the other hand others will just come in and change if they just happen to be passing your branch and are impressed with its appearance.
This chapter should also have clarified the reason why we do not advertise. Tourists are not often here for a very long time and probably are not going to watch a lot of television or spend hours listening to the radio. So these mediums are of no real use to us. Furthermore, what would be the point of paying lots of money to put up big posters in the heart of our various cities? Firstly, it is often not possible and secondly there is no need because we are all situate centrally so they will most likely pass one of our branches anyway.
As a consequence it is only important for us to make ourselves standout on the High Street by having rate boards outside that catch the shopper’s eye when walking down the road. Then we need a stylish branch appearance in order to bring the customer to the till. It is then and only then, that our skills in personal communication really begin.
(Emphasis added.)
(5)At pp 22–23, SZ-14 relevantly reads:
For The Change Group personal selling is really the only option, although the Internet might, in the future, be a profitable addition. Nevertheless, over the till sales will always be crucial to us.
This then is where your negotiating skills and cashiering expertise come into play. Obviously the customer can and often does just come into the branch and hand over his/her money. These are the easiest and most profitable customers. However, if the customer makes an enquiry you must know what to offer to ensure we get the deal. Therefore, we have to be flexible in terms of commission and exchange rate.
Most companies operate on virtually a “take it or leave it” basis, but we would rather you reduce the commission and still get the deal. After all, a smaller amount of profit is still far better than losing the deal and making no money whatsoever.
Remember, once a deal has been made, the customer may be willing to spend some of his money on our wide range of sundry items. This then further increases company profitability and helps you in reaching your targets and claiming that nice bonus in return.
…
Finally, it is also important to remember that to the customer you are the company. We can have the most fabulous and luxurious branches, but if you appear scruffy, uninterested or rude then we would never get that deal. So, ultimately it is the sales consultant behind the counter who does the deal. The whole back office and international administration exists purely to support the sales consultants in being able to deliver the best service possible to our customers.
(Emphasis added.)
(6)At p 27, SZ-14 relevantly reads:
The Change Group’s “Unique Selling Points” (USP’s) are that we:-
(i)         Are open 7 days a week for long hours all year round;
(ii)Have well lit, clean and bright branches with high security and impressive design;
(iii)Display our well recognised logo and brand name which instils confidence in our customers because of our worldwide presence;
(iv)       Have multi-lingual, multi-talented friendly staff;
(v)        Offer quick transaction time;
(vi)       Are located only in premium sites at the potential customer’s finger tips;
(vii)      Offer a total package service thanks to our sundry products; and
(viii)     Have excellent Special Offers, like the Buy-Back promise.
(Emphasis added.)
In re-examination, Mr Zackariya again sought to deflate the importance of the impulse customer when he said (T75/38–41):
We end up negotiating with a substantial number of customers who have gone from bureau to bureau. We end up … serving customers who have seen us elsewhere and seen our get up – our branding – and decide to come to us, so that’s why it’s just not impulse.
Nowhere, however, are the elements of the pleaded Get-up referred to in SZ-14 as a force of attraction to The Change Group’s customer market save perhaps obliquely in the reference to “impressive design” in (ii) of the eight “Unique Selling Points” on p 27 of SZ-14 (see [64(6)] above).
Mr Zackariya was asked a number of questions going to the uniformity of the design and branding (including external signage) of various CGA retail units in Australia and conceded that a number of them departed from that uniformity in one or more respects. He conceded that the external signage at CGA’s retail unit at 136 Queen Street, Brisbane, close to one of CEM’s units, was an exception to the uniform design and branding (T55/32); similarly for the units at Darwin: Shop 5, Galleria Complex, Smith Street Mall (T55/36) and Shop 27, Transit Centre, 69 Mitchell Street (T55/41); similarly for the unit at 452 George Street, Sydney (T55/45), although he went on to say that it was not completely different (T56/33); and similarly for the unit at 569 George Street, Sydney (T56/5). He conceded that where a unit was being located within another’s premises or where the owner of the premises had its own reputation – Harrods was used as the exemplifier – it was not always possible to maintain uniformity in external signage (T54/12–41).
Mr Zackariya’s evidence was that part of the uniform strategy of design and branding was to de-emphasise the corporate logo (T57/5) – the globe logo with the words “The Change Group” running through the globe (T58/35–36). After initially conceding that the CGA unit at 184 Swanston Street, Melbourne was an example of the pleaded Get-up (T56/46–47), he indicated that it “would actually fail an audit” (T57/14) because of the existence of the corporate logo on the external front of the unit, although he said that its prominence there was diminished because “[i]t’s below the counter, which is not where people are looking” (T58/40–41).
Mr Zackariya would not concede that by the time people get up to the point where they were thinking about, and able to, transact – in close proximity to the cashier, their eyes would divert to the rate board. He said: “Some people’s do. It depends on the customer” (T59/4). He could not confirm that the corporate logo appeared at the top of the rate boards in each CGA unit on the east coast of Australia; would not like to use the word “standard” as a description of its use on such rate boards; but conceded that it existed on many (T59/6–36).
Mr Zackariya conceded that from the photographs of units he annexed to his affidavits, it could be said that generally speaking CGA does not use either foreign words or foreign symbols (for units of currency) on external signage of those units (T61/15–18).
Dr Zackariya-Marikar
There was a good deal of undisputed affidavit evidence concerning CGI’s operations outside Australia prior to establishing CGA’s operation in Sydney in 2000. Ms Bette Zackariya gave evidence that initially, that is, in 1992 and 1993, CGI’s retail units used a “white out of green” colour scheme for their signage; white letters on a green background. In 1993 CGI installed its first retail unit in a “white out of blue” format in Copenhagen, Denmark, although the blue was darker than the intended, and preferred, pantone 288. But the signage employed white capitalised lettering for words (that described the services being offered), uniform font type for the letters and the word MONEY was in especially large font. Two units followed in Helsinki in Finland, in 1994 with similar signage, this time using the preferred blue and utilising vertical signage to make better use of available space. The next unit was opened in Vienna in Austria in 1995. Ms Bette Zackariya’s evidence in this regard was confirmed by Dr Marikar.
Dr Marikar’s evidence was that since 1994, CGI’s retail units have, with some exceptions, had uniform design and branding features which include:
(a)The colour scheme of blue and white – the blue being the background colour and the words in white which are capitalised;
(b)the signage contains wording to indicate the services offered by the retail unit and utilises the available space on the external signage to fulfil that descriptive purpose;
(c)(following from (b)) the emphasis is on conveying the message as to the nature of the service and to that end no or next to no space is sacrificed to any other use of wording;
(d)(following on from (c)), no or next to no space is taken up with words or logos that identify CGI/The Change Group because that detracts from CGI’s objective of maximising the identification and promotion of the services offered by the retail unit;
(e)(following on from (d)), CGI’s corporate logo is not ordinarily presented on the external signage – where a globe logo does appear the words MONEY EXCHANGE are used to maintain the descriptive use of words on the retail units;
(f)the font type for the words is in a standard font but the word MONEY is also, relatively speaking, emphasised by larger font; and
(g)some words are arranged vertically, thus allowing even relatively narrow external space to be utilised for the purposes of signage.

Dr Marikar prepared a schedule which he annexed to Ex 3 setting out the number of retail units operated by The Change Group in each geographical location in each year since 1992. The following can be extrapolated from that schedule:
(a)As at August 2000, when CGI opened its first retail unit in Australia at 452 George Street, Sydney, The Change Group had 15 retail units operating in London (three), Copenhagen (five), Helsinki (five), New York (one) and San Francisco (one).
(b)As at July 2005, when CEM opened its first retail unit in Sydney at 636 George Street, The Change Group had a further 22 retail units operating in Vienna (one), Copenhagen (one), San Francisco (Pier 39 (one), Tallinn (five), Sydney (three), Melbourne (three), Auckland (five), New York (one) and London (two). The figure for Sydney is inconsistent with the table at [7] above even allowing for the two at Sydney Airport not listed in the schedule.
Dr Marikar also noted that on occasions CGI has not been able to utilise its standard external signage in the case of nine retail units due to extraneous factors including landlord requirements and corporate acquisitions. These included:
(a)House of Fraser, 318 Oxford Street, London W1C 1HP (concession within store);
(b)money x 3 branches – (part of an acquisition from Hansa Bank in Estonia, not re-furbished due to introduction of Euro);
(c)Darwin Galleria Complex Shop 5, Galleria Complex, Smith Street Mall, Darwin NT 0800 (part of an acquisition, not yet re-furbished, delay due to lease re-negotiation).
(d)Darwin Transit Centre Shop 27, Transit Centre, 69 Mitchell Street, Darwin NT 0800 (part of an acquisition, not yet re-furbished delay due to lease re-negotiation);
(e)OzChange, Shop 181, 569 George Street, Sydney NSW 2000 (test marketing for a new concept);
(f)NZChange, 238 Queen Street, Auckland (test marketing for a new concept);
(g)ChangeUK, 17 Villiers Street, London WC2N 6NG (this is a test marketing exercise for a new concept).
Dr Marikar also attached a schedule to Ex 3 described as a summary of The Change Group’s gross profit both overall and on a geographical basis since 1992, figures which had been extracted from the audited consolidated financial statements of the Group. There were no figures up to the 2002 year. The figures for Australia (excluding New Zealand) were as follows:
2003  Stg 1,082,128
2004  1,639,072
2005  2,958,183
2006  3,356,082
2007  4,478,331
2008  5,428,578
2009  6,243,620
2010  6,014,922
In cross-examination, Dr Marikar conceded that in the vast majority of retail units in Australia a consistent feature is the presence in the panel underneath the glass window of the globe logo; and in most cases the globe has the words “Money Exchange” running through it and sometimes the words “The Change Group”, but not often (T97/6–21). He also conceded that on the back wall of the vast majority of units that CGA operates in Australia the globe logo is present (T97/23–26) and that quite a few of them, but not most, have the words “The Change Group” running through it (T98/10–23).
In relation to the unit at 102 Queen Street, Brisbane which has the words ‘BUREAU de CHANGE” in bold font on the external front underneath the glass window, Dr Marikar said that he could not say CGA had another unit with exact words like that, and certainly not in Brisbane (T98/42 – 99/9).
Dr Marikar conceded that a fact summary of his evidence as to the focus of the external get-up was: “Blue and white, and the general overall look and feel of the unit”; “A clean glass front and open area … an excellent system whereby blue and white lettering is very prominent and it’s a … clean-looking branch which is our image” (T99/11–23).
Dr Marikar was cross-examined about the concern he expressed in his affidavit at [54] at the disparate nature and presentation of CEM’s units; that many of CEM’s units downgraded The Change Group’s image in its presentation to the travelling public – he referred to those within convenience stores, one or two in Melbourne within a travel agency or other offices; he stressed that he was not talking about the different colours (other than blue and white) being used, but the general image and cleanliness and presentation of the CEM units (T102/11–40). When asked what are the particular aspects of the inferior presentation that inform his concern he said (T102/45 – 103/7):
If it doesn’t look clean and tidy. We ensure all our units are kept clean and tidy. The way … paperwork is displayed or anything like that, in general … computers were in the wrong place … it hasn’t got the full, clean image which we would spend time and money maintaining.”
The transcript then tellingly reads (T103/17–25):
So is it fair to say that when you look at it for the first time, from the street, for example, you might in your experience confuse it for a Change Group unit?---Yes.
But that as you get closer and you see things like the internal presentation and other aspects of the general look and feel you know that it’s not a Change Group unit, is that what you’re saying?---That’s correct. Well, as the chairman of The Change Group I would be more particular in how our units are presented and how our staff is dressed. Staff would – most of they [sic] did not have uniform, that would – but that as an experienced businessman who developed the concept of The Change Group.
Mr Paul McGowan
Mr McGowan’s affidavit evidence, in particular Ex 7, was less than satisfactory in certain respects. First, it emerged in cross-examination that various photographs of CEM’s very first unit at 636 George Street, Sydney annexed to Ex 7 which he deposed he had taken on a visit to that unit on or about 5 January 2006 were taken more recently (T118/1–3). When he was shown photographs of the CEM unit at 636 George Street, Sydney that were actually taken in January 2006 he agreed that there had been significant changes in signage and branding from the days when it was first opened as an implant within the City Convenience Store to the time at which the annexed photographs were taken when it had become an implant of the Smile Korea Mart (T118/21–24).
When he was asked, following his identification of the correct photographs from January 2006, as to whether he adhered to his evidence that there are similarities between the branding and signage of the CEM unit at 636 George Street, Sydney and CGA units in Sydney of the kind set out in [8] of Ex 7, he said that there were still similarities, however, he went on to say that the similarities disclosed by the correct photographs were less than those disclosed by the photographs annexed to Ex 7 (T119/28–30).
Mr McGowan agreed that the photographs to which he had been taken showed that the CEM unit at 636 George Street, Sydney at both January 2006 and later contained a rate board on the top of which the words “City Exchange Mart” appeared (T120/38–40). He agreed that that was a distinction from what generally appears at the top of the rate boards used by CGA because, unlike CEM, what often appears at the top of the CGA rate boards is the globe (T120/44–47). He was then asked whether in his experience people who are using the sort of services that CGA and CEM provide are often very interested in the rates that are being offered and he agreed that they were (T121/9–12). He also agreed that having regard to his experience one of the first things that people look at when going into these units is the rate board (T121/14–16). Moreover, he agreed that the rate board at the CEM unit at 636 George Street, Sydney was part and parcel of the visual presentation of the unit to any customer looking at it from the street (T121/35–38).
Secondly, Mr McGowan also corrected, in cross-examination, his reference in [7] of Ex 7 to the CEM unit at 250 Pitt Street, Sydney saying that he intended to refer to the one at 244 Pitt Street, Sydney (T121/40–43). Thirdly, he also accepted that he was mistaken in his affidavit when he said that a photograph annexed to his affidavit was a photograph of 244 Pitt Street, Sydney when it was in fact a photograph of 700 George Street, Sydney (T122/3–6). When asked whether he was able to explain how all these errors occurred in his affidavit, he replied: “ I guess the similarity of all the fonts and the signage looking the same has possibly confused me at the time” (T122/12–13). He did agree, however, that just looking at the correct photograph of the 244 Pitt Street, Sydney premises, the rate board is part of the visual presentation of that unit to anyone who was looking at it from the street (T122/15–17).
Mr Paul Meehan
Mr Meehan’s evidence in chief (Ex 16) as to CGI’s strategy in relation to the location of retail units (other than those at airports) on prime high (main) street locations where there is high tourist traffic and multiple units in one area closely followed that of Mr Zackariya. At [27] to [30] of Ex 16 he says:
CGI’s strategy in relation to the location of its other retail units is to place them in prime high (main) street locations where there is high tourist traffic. This is, like the strategy in relation to airports, a key component of CGI’s marketing strategy (the very presence of the unit is like having a billboard sign); the premium rental paid by CGI for such locations is in part justified by that exposure factor. It is otherwise beneficial because CGI’s units are therefore directly available to passing tourists if they be inclined to obtain currency; this is a critical component of CGI’s strategy because, as a [sic] I explain immediately below, it establishes its units in prime (costly) positions as a matter of course.
In the course of performing my duties I keep appraised of the manner and style of operations of CGI’s main competitors, such as Travelex, ICE, Forex, UAE, Lotus, etc. I have surmised from the absence of CGI’s main competitors from the significant or premium locations in which CGI positions its units, that those competitors choose to locate themselves within tourist precincts but not within the heart of them where rents are typically at their highest. By way of example, on the main walking street in Copenhagen called Stroget, CGI has established four retail units. The two nearest competitor branches of Forex are located in the Central train station and near Norreport Station, which are at least several hundred metres from the main walking street. At Annexure PM-4 of the bundle is a map identifying the position of the CGI and competitor retail units.
A further component of CGI’s placement strategy for its retail units is that it will often place multiple units in an area so that customers will at some stage or other in their journey within that tourist precinct, at a time of considering that he or she wants to acquire foreign exchange or use a foreign exchange service, use one of CGI’s units (having already passed one or more of them on his or her journey). By way of example, in addition to the multiple retail units established by CGI along the main walking street in Copenhagen, CGI also has multiple units in the two main walking streets in Helsinki, the main walking streets in Vienna, one of the main tourist precincts in New York City (being Times Square), two of the main tourist precincts in San Francisco (being Pier 39 and Union Square) and in Sydney along the Opera Quays concourse. In each of those locations none of CGI’s major competitors operate.
As part of the operating procedures for CGI’s retail units, sales assistants are directed to negotiate an exchange rate on reasonable sized transactions with customers in the event that the customer does not accept the first rate quoted by the sales assistant. In my experience in circumstances where CGI has multiple retail units within an area, it will often be the case that the following pattern of trade will occur. A prospective customer will come into the first retail unit and seek to negotiate an exchange rate. Upon reaching a particular rate the customer will not conduct a transaction but rather continue along his or her route for the purposes of comparing the negotiated rate at the first unit with rates quoted at further units along the way. One of the benefits of CGI’s multiple unit strategy for any particular location is that in such circumstances, where the other units are also run by CGI, the transaction ends up occurring at CGI’s unit. Often, in my experience, in such a scenario, the sales assistant from CGI’s first retail unit will notify other units along the route of the customer and the rate he or she has negotiated at the first unit; by the second or third unit it becomes apparent to the customer that the rate is being offered by each of the units in a consistent manner and he or she will then conduct the transaction appreciating that all the retail units seem to be part of the same business and are therefore offering the same rate. This is one of the advantages CGI perceives in having consistent branding in the shops of its retail units and locating them nearby each other.
In cross-examination, it was put to Mr Meehan that there are either four or five Change Group units in Australia which depart from the fairly standard or uniform get-up he referred to in [15] of Ex 16. He said that he did not think there were four or five, only two or three (T185/43–46).
He was taken to a photograph of the CEM unit at 217 George Street, Brisbane bearing date August 2008 annexed to Ex 16 as part of “PM-5”. In [31] of Ex 16, Mr Meehan refers to visiting that unit in October 2009 in the belief that it was a CGA unit. He agreed that it exhibited a number of features, externally visible, which were not part of the uniform Change Group Get-up and that there were features of the uniform Change Group Get-up which were not exhibited by the CEM unit at 217 George Street, Brisbane (T187/24–189/2). Inexplicably, he then denied that was the case (T189/14–17). It was then suggested to him that he could not have been paying very close attention to the CEM unit during his visit in October 2009 to which he responded by, in effect, replicating what he deposed in [31] of Ex 16 (T 189/21–27):
When I first noticed the unit coming across from Brisbane Casino, I was walking towards the unit and it appeared to me that it was a ChangeGroup unit, and then my focus was drawn to the fact the sales consultant wasn’t wearing a uniform, which was my concern. … I moved away to look further back and noticed I was on George Street, which I didn’t know at the time, and that’s when I realised we don’t have a unit on George Street.
Mr Rajah Hayatt
In [4(d)] and [4(e)] of Ex 19, Mr Hayatt deposed:
[I]n some circumstances the arrangement of some words vertically is determined by the availability of space. … CGI/CGA goes out of its way to use any available vertical space to emphasise the nature of the services provided by The Change Group business (money exchange). This includes the use of external pillars which in my experience many other businesses would leave without signage.
…[I]n a large number of CGI/CGA retail units a globe with the words The Change Group is displayed on the back wall behind the counter, and there is a globe in relatively small print with the words The Change Group at the top of its rate boards, no corporate identifying logos and words naming the business are prominently displayed. It is the intention of CGI/CGA that the external facia of retail units of CGI/CGA do not display the corporate logo or the name of the business. Rather, the retail units use capitalised words describing the services provided by the business in an attractive colour scheme in a well lit retail unit which is intended to be appealing and give the impression of a professional business to potential customers.
In cross-examination, Mr Hayatt was asked whether he was aware of any Change Group outlet or unit in Australia that uses external pillars in the way he described in the last sentence of [4(d)]. He said that he was not aware of the Australian business at all and had not been to any of the Australian branches (T208/19–22).
He was asked whether there was any Change Group unit anywhere in the world that uses the words on an external pillar “Bureau de Change”. His response was that so far as he was concerned, there was none (T208/28–31).
He was then referred to [4(e)] of Ex 19 and asked whether part of The Change Group strategy in using blue and white in the way that it does is to try and create a clean feel and look for its units. He responded that it was (T210/1–3).
Mr Roy Smith
At [23] of Ex 20, Mr Smith deposed:
Also included as part of CGA signage are two unique elements in foreign exchange businesses, namely under the counter signage, being a globe with the words ‘MONEY EXCHANGE’ running through the middle of it, and secondly the use of stainless steel bumper rails, although the latter is no longer used … [T]he signage on the exterior façades of CGA’s retail units is descriptive of the services provided by the business. I am aware from my involvement with CGI that this is a deliberate marketing tool, and it is only upon entering the retail unit that a customer will become aware of the signage on the back wall of the retail unit which names the business owner – ‘The Change Group’.
It was put to Mr Smith in cross-examination that the under-the-counter signage would be pretty hard to miss by a customer walking up to the counter (T212/45). He agreed (T212/46), but then said (T213/1):
It’s a branding, but, in most cases, people are looking at the counter to see their rates rather than looking at underneath the counter.
It was then put to Mr Smith (T213/10–12):
Well, I want to suggest to you that that sort of signage that you make reference to in paragraph 23 is signage that would be obvious to anyone who has entered the unit and who is contemplating a transaction. What do you say about that?
To which he responded (T213/12–13):
In certain circumstances, yes.
At T214/21–22, Mr Smith was asked:
What about if you assume the words “City Exchange Mart” are written on the back wall behind where the cashier that you’ve just told his Honour about is sitting?
To which he responded (T214/22–23):
If it was bold enough like the [Change Group] one, they would probably see it…
By way of explanation he went on to say (T214/27–34):
If the signs were in – in the manner that the [Change Group] has what we call, in terms, the hamburger sign, which is the split globe with “The Change Group” through it, then you could probably see it in … that format. But the [Change Group] have always managed to make that extremely bold, and have done that on all occasions and in fact my instructions from London is to always make that particular one – if the wall is large, the sign will be large to – to dictate and say where – who it is.
He was then asked (T214/35–38):
So it’s right to say then, isn’t it, for the [Change Group] units that you’ve just his [sic] Honour about, anyone walking in there couldn’t help but notice the globe, or hamburger as you’ve called it, and any words that are running through it. Is that your opinion?
To which he responded (T214/38):
Yes, that’s right, when you’re up at the counter.
Mr Smith was then asked some questions about the use of rate boards in various retail units of CEM. In relation to the rate board in the photographs of the unit at 55 Swanston Street, Melbourne, it was put to him (T215/28–30):
But I am asking you about customers who are contemplating a transaction, and I’m putting to you the proposition that they would be facing directly that rate board. That’s right, isn’t it?
To which he responded (T215/30):
If they were standing there, but, again, I say that … the logo for CEM is not distinct enough to jump out at you like the – like the [Change Group].
He was then asked a number of questions about the use of rate boards as part of CEM’s external signage. He agreed that the rate board was part of the external signage of CEM’s unit at 13–17 Pitt Street, Sydney (T216/9); similarly for CEM’s unit at 37 Pitt Street, Sydney (T216/16); similarly for CEM’s unit at 700 George Street, Sydney (T216/42); similarly for CEM’s unit at 217 George Street, Brisbane (T217/13) and Mr Smith agreed that one could see the words “City Exchange Mart” on the glass divider in front of the counter from outside this last-mentioned unit.

In respect of the evidentiary matters referred to in [203(3)] above, in particular the evidence of Dr Marikar (at (b)) and the evidence of Mr Smith (at (c)), initial confusion, which is dispelled immediately or very soon after the confusion arises, does not support a finding that conduct is misleading or deceptive for the purposes of s 52 of the TPA/s 180 of the ACL. Relevantly, the general principles include that “conduct causing mere confusion or uncertainty in the minds of the public in the sense that they may be caused to wonder whether two products may have come from the same source is not necessarily co-extensive with misleading or deceptive conduct (Equity Access Pty Ltd v Westpac Banking Corporation 16 IPR 431 at 441 per Hill J) and that “[a] transitory or ephemeral impression, if misleading, but which is immediately dispelled, may depending on the circumstances, be of no commercial significance and therefore not misleading conduct within s 52 of the TPA”: Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 at 598 [54].
As the Full Court (French, Tamberlin and Rares JJ) observed (at [58]) in that case:
When characterising a course of conduct as misleading or deceptive, the practical consequences and effect which the conduct is likely to have must be taken into account… [O]ne…momentarily apprehends that there may be some association…but on closer inspection is immediately disabused of that false or confused impression, then it is open to find that the respondents’ conduct is not misleading or deceptive.
It follows that, in my view, the applicants’ case on the statutory basis fails for want of discharging the relevant onus of proving that “a not insignificant number of persons in the Australian community, in fact or by inference, have been or are likely to be misled by CEM’s external signage into believing that CEM’s retail units are CGA’s units or are associated with the applicants.
Breaches of Contract and Fiduciary Duty
Background
As noted in [9] above, Mr Yasin and Mr Shah were employees of CGA until June and May 2005 respectively.
Mr Yasin commenced employment with CGA on 25 September 2001 as a foreign currency sales consultant. His principal responsibility, to begin with, was the purchase and sale of currencies with customers for which he was paid about $12 to $13 per hour. He was subsequently promoted to Trainee Administrator for which he was paid about $15 to $16 per hour. His employment agreement with CGA was in writing and dated 30 September 2001. The terms of his employment agreement with CGA relevantly provided:
2.1      Duties and Liabilities of Employees
You must well and faithfully serve the Employer [CGA] and use your best endeavours to promote the interest and welfare of the Employer.
2.4      Outside Employment
You must not engage or be concerned in any outside employment which is in any way related to the business of the Employer unless you first obtain the consent in writing of the Employer.
2.5      Confidentiality
(1)You must not, during or after the period of your employment with the Employer, except in the proper course of your duties or as permitted by the Employer or as required by law, use for your own benefit or gain, divulge to any person, firm, employer or other organisation whatsoever or use, any trade secret or any Confidential Information belonging to the Employer concerning:
(a)the business or financial arrangements or position of the Employer or any Related Body Corporate; or
(b)without limiting the generality of clause 2.5(1)(a), any computer program, templates, patterns, models or designs created by you during the course of your employment with the Employer; and
(c)any of the dealings, transactions or affairs of the Employer or any Related Body Corporate.
(2)You must, during the period of your employment with the Employer, use your best endeavours to prevent the publication, use or disclosure of any such trade secret or Confidential Information.
(3)Upon the termination of your employment with the Employer, you must not:
(a)Represent yourself as being in any way connected with or interested in the business of the employer; or
(b)at any time without the authority of the Employer, divulge to any person any information in connection with the Employer or any of the businesses or customers or clients of the Employer which you may have acquired during your employment.
Mr Shah commenced employment with CGA on 18 October 2003. His principal responsibility was the purchase and sale of currencies with customers for which he was paid about $12 per hour. His employment agreement with CGA was in writing and dated 14 October 2003. The relevant terms of his employment agreement with CGA were the same as those referred to in Mr Yasin’s employment agreement.
Allegations, Admissions and Denials
The applicants allege that by reason of the conduct pleaded below, namely:
(1)In or about February 2005, while still in CGA’s employ, each of Mr Yasin and Mr Shah caused CEM to be incorporated: SOC [47];
(2)on dates unknown, each of Mr Yasin and Mr Shah made arrangements, or entered into arrangements with others, for the establishment and operation of a business or businesses to complete with CGA’s business: SOC [48]; and
(3)in or about June 2005, CEM opened its first retail unit trading in foreign exchange at 636 George Street, Sydney: SOC [51]
each of Mr Yasin and Mr Shah has breached cll 2.1 and 2.5 of his employment agreement with CGA and has breached his fiduciary duty of fidelity towards CGA: SOC [52].
The applicants also allege that by reason of the conduct pleaded in SOC [31]–[34] (the conduct forming the basis of the TP Act/ACL claim) and SOC [39]–[42] (the conduct forming the basis of the passing-off claim) each of Mr Yasin and Mr Shah has breached cl 2.5(3)(a) of his employment agreement with CGA: SOC [53].
Mr Yasin and Mr Shah admitted that they caused CEM to be incorporated while they were employees (T482/6); they also admitted that they made arrangements, or entered into arrangements with others, for the establishment and operation of a business or businesses to compete with CGA’s business (T 482/3–8). They do not admit that CEM opened its first retail unit at 636 George Street, Sydney in June 2005, but do admit CEM opened its doors for trading at 636 George Street, Sydney on 1 July 2005. It was common ground that this was after each of Mr Yasin and Mr Shah had ceased his employment with CGA.
While Mr Yasin and Mr Shah deny that their admitted conduct in [209] above gave rise to a breach of cll 2.1 and 2.5 of his employment agreement with CGA and deny that it gave rise to a breach of fiduciary duty of fidelity towards CGA, each admits the scope of the fiduciary duty pleaded.
Breach of Contract
Clause 2.1
Clause 2.1 required each of Mr Yasin and Mr Shah to well and faithfully serve CGA and use his best endeavours to promote the interest and welfare of CGA. The conduct complained of in SOC [51], the opening of CEM’s first retail unit trading in foreign exchange at 636 George Street, Sydney, could not constitute a breach of cl 2.1 because it was common ground that this conduct occurred after Mr Yasin and Mr Shah had left the employ of CGA.
The conduct complained of in SOC [47], that each of Mr Yasin and Mr Shah caused CEM to be incorporated in or about February 2005 while they were still employed by CGA, without more would not, in my view, constitute such a breach. Such conduct, on its face, is not inconsistent with the “well and faithfully serve” obligation, nor with the “best endeavours to promote the interest and welfare” obligation and while I am not suggesting that such conduct could never be inconsistent with the dual obligations of cl 2.1, it is difficult to envisage the circumstances when it would. Certainly, no evidence was adduced in the present case which would lead to that conclusion.
The conduct complained of in SOC [48], that each of Mr Yasin and Mr Shah made arrangements, or entered into arrangements with others, for the establishment and expiration of a business or businesses to compete with CGA’s business, was not pleaded by reference to any time period, whether before, after or both before and after each of Mr Yasin and Mr Shah left the employ of CGA nor, as foreshadowed they would be, were particulars of any material fact provided so as to enable the identity of those arrangements to be known. In the absence of such temporal nexus and material facts, the allegation that by the conduct pleaded in SOC [48] each of Mr Yasin and Mr Shah breached cl 2.1 of his employment agreement must fail.
In the present case it was not pleaded, nor was there any evidence, that Mr Yasin or Mr Shah had actively abused an opportunity created by their respective employment such as to found some breach of the duty to faithfully serve the applicants and to promote their interests.
As Bryson J explained in Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272 at [26], the circumstances as a whole must be examined to determine the content and scope of a contractual obligation of fidelity, in particular:
[T]he nature of the employer’s business, the position of the employee in it and the actual or potential impact of what the employee does on the employer’s interests. Many skilled workers and manual workers can be regarded has having done all that is required of them if they work according to their ability for stipulated hours; what they do at other times is not their employer's concern.
The clerical positions occupied by Mr Yasin and Mr Shah cannot be the basis for imposing obligations on them greater than the obligation to undertake the tasks required by their jobs during their work hours. Pursuing opportunities for advancement even if in competition with their employer (in circumstances where there was no restraint of trade clause in their respective employment agreements) is not a breach of an employee’s duty to serve an employer faithfully. The authorities recognise that the pursuit of a commercial opportunity whilst in employment is not always incompatible with a duty to faithfully serve the employer; it is irrelevant to the applicants’ case in contract that the respondents’ conduct “in a cumulative sense” (T 23/15–20) evidences an intention whilst employed to set up a business of the kind they ultimately did.
Moreover, it is no answer to suggest that Mr Yasin and Mr Shah breached their obligation to serve their employer faithfully because they undertook steps during the course of their employment to advance their businesses interests – such as by making phone calls in respect of their business plans to establish a money exchange business – on the employer’s time. As was acknowledged by Mr Bailey in cross-examination, it was not inconsistent with company policies for employees to make personal phone calls so long as the calls did not interfere with the proper operation of the applicants’ business (T 263/40–45).
For these reasons, the applicants’ claim that Mr Yasin and Mr Shah breached cl 2.1 of their employment contracts fails.
Clause 2.5
Sub-clauses 2.5(1) and (2) relate to the prohibition on the use of trade secrets and “Confidential Information” belonging to the employer during and after the period of employment. “Confidential Information” is defined at cl 9 of the employment agreements between CGA and each of Mr Yasin and Mr Shah to include:
[A]ll information which has been specifically designated as confidential by the Employer and any information which relates to the commercial and financial activities of the Employer, the unauthorised disclosure of which would embarrass, harm or prejudice the Employer. It does not extend to information already in the public domain unless such information arrived there by unauthorised means.
Mr Yasin and Mr Shah submitted that the applicants’ case in this respect fails because it is inadequately pleaded and accordingly there is no basis for any such finding against them.
In Jack Brabham Engines Ltd v Beare [2010] FCA 872 at [206] Jagot J stated that “fairness demands that the information said to be confidential and the use said to be in breach of the duty be identified with specificity”. Particulars and evidence do not surmount the problem of failure to plead with specificity the confidential information alleged to have been improperly used. Her Honour cited the relevant principles from Creative Brands Pty Ltd v Franklin [2001] VSC 338 at [16]–[23], where Warren J stated (at [18]):
[A]s a general proposition the courts are reluctant to permit a previous employer to use a generally worded claim to stifle the right of an employee to use the skill and experience of that employee sometimes called “know how” as distinct from an ex‑employer’s “secrets”.
At [22] Warren J relevantly observed:
In my view the subject paragraphs of the statement of claim suffer from the vice that the nature of the confidential information that is the subject of the dispute is not defined at all or certainly not with sufficient specificity. Further, and most importantly, there is a further vice in that the allegation against the defendants with respect to disclosure or use of the subject confidential information is so vague and uncertain that the defendants would not know what case they had to meet. In essence, the claim by the plaintiff against the defendants appears to be one that is tantamount to a complaint that the defendants left their former employer, established their own business and are now competing in a market place against their former employer. That is not sufficient to make out even an arguable case of disclosure of confidential information.
The lack of specificity as to the nature of the confidential information and the use made of it such as to ground a claim for breaching a contractual duty of confidentiality under cl 2.5 in the present proceedings is equally lacking in the applicants’ pleading, and Warren J’s observations in respect of the same deficiency in Creative Brands are apposite in the present case. No finding could be made that Mr Yasin and Mr Shah breached their contractual duty of confidentiality under cl 2.5 of their respective employment agreements with CGA.
Pleading deficiencies aside, on its proper construction, cl 2.5 does not prevent an employee from using the knowledge he gleaned whilst working for the applicants. An ex-employee is entitled to make full use of the knowledge, skill and experience which as a result of his previous employment have become her or his own: Finn, Fiduciary Obligations (1977), at 149 [338]; Creative Brands at [18] per Warren J.
Furthermore, in the present circumstances, the distinction between an employee’s know-how with respect to the running of a foreign exchange business and confidential information is not readily ascertainable. For example, information with respect to the strategy of locating units in clusters on main streets is hardly confidential information in that such a strategy is capable of being deduced from observation. Indeed, a strategy of the kind adopted by the respondents with respect to the location of their retail units on main streets is a logical outcome of the application of sound commercial reasoning in the context of a business directed to, and/or located within another business targeted at, impulse buyers in busy city locations. If the “policy” or “strategy” adopted by competitors is capable of deduction through observation – as Mr Bailey was able to do with respect to the applicants’ competitors (Ex 24 at [35]) – it follows that the applicants’ policy with respect to the location of its stores is equally discernible through independent observation and inquiry. Such information is not confidential information.
With respect to the suggestion in Mr Bailey’s affidavit that the applicants’ anti-money laundering policy was, in part, copied by the respondents, Mr Bailey said in his evidence that the material contained in the policy (dated November 2007) summarised the relevant legislation on which it was based, namely, the Anti-Money Laundering And Counter-Terrorism Financing Act 2006 (Cth). Accordingly, such information in the anti-money laundering policy that was based on this legislation cannot be confidential information. In any event it is plain that the applicants’ document was created after Mr Yasin and Mr Shah’s employment came to an end.
For these reasons, the applicants’ claim that Mr Yasin and Mr Shah breached cl 2.5 of their respective employment agreements fails.
Clause 2.5(3)(a)
The applicants allege that by reason of the conduct forming the basis of the TP Act/ACL and passing-off claims, each of Mr Yasin and Mr Shah has breached cl 2.5(3)(a) of his employment agreement with CGA: that each has represented himself as being in some way connected with or interested in the business of CGA. This allegation falls away with the anterior findings on each of these claims.
Breach of Fiduciary Duty
The relevant principles were summarised by Palmer J in Digital Pulse Pty Ltd v Harris (2002) 40 ACSR 487 at [20] to [25] inclusive:
[20]     An employee has a duty to act in the interests of the employer with good faith and fidelity. That duty is implied in every contract of employment if it is not otherwise imposed by an express term. In addition, the duty is imposed upon every employee by the law of fiduciaries, the relationship of employer and employee being recognised as a paradigmatic fiduciary relationship.
[21]     The obligations imposed by the duty are not coterminous with the employee’s normal working hours: they govern all the activities of the employee, whenever undertaken, which are within the sphere of the employer’s business operations and which could materially affect the employer’s business interests. Whether a particular activity could materially affect the employer’s business interests is a question of fact and degree.
[22]     The duty of loyalty requires that an employee not place himself or herself in a position in which the employee’s own interest in a transaction within the sphere of the employer’s business operations conflicts with the employee’s duty to act solely in the employer’s interest in relation to that transaction. A fortiori, an employee may not take for himself or herself an opportunity within the sphere of the employee’s business operations without the employer’s fully informed consent.
[23]     When the employment ceases, the employee is free to compete with the employer unless subject to a valid contractual restraint on competition. The employee may take away and utilise the benefit of personal relationships built up with particular customers of the former employer and may solicit any customer whom the employee can recall without the aid of a list taken from the former employer and without deliberate memorisation of a customer list. The employee may not, however, use for his or her own benefit confidential information of the former employer, whether to solicit business from the former employer’s customers or to carry out work for such customers even if unsolicited.
[24]     The remedy for breach of the contractual duty of loyalty is damages. The remedy for breach of the fiduciary duty of loyalty is either an account of the profits derived by the employee from the breach or equitable compensation. The employer need not elect between these remedies until the time at which judgment is to be entered.
[25]     Where the employee who is in breach of the fiduciary duty of loyalty incorporates a company in order to take the benefits of the breach, then the company itself will be held to have participated in the breach so that it will be liable to the employer to the same extent as the employee.
With respect to each of these principles, in particular that referred to in [21] of the extract reproduced in [232] above, it is necessary to bear in mind, as Phillips JA (speaking with the concurrence of Winneke P and Charles JA) pointed out in Edmonds v Donovan (2005) 12 VR 513, that it is unwise to generalise from one case, involving its own particular facts, to another. At 537 [58] his Honour said:
[T]he existence and scope of fiduciary obligations must always be assessed in the particular context in which they are claimed to arise.

That is nothing more than what was articulated by Lord Greene, as Master of the Rolls, in Hivac Limited v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169 at 174, nearly 50 years before:
It has been said on many occasions that an employee owes a duty of fidelity to his employer. As a general proposition that is indisputable. The practical difficulty in any given case is to find exactly how far that rather vague duty of fidelity extends. Prima facie it seems to me on considering the authorities and the arguments that it must be a question on the facts of each particular case. I can very well understand that the obligation of fidelity, which is an implied term of the contract, may extend very much further in the case of one class of employee than it does in others. For instance, when you are dealing, as we are dealing here, with mere manual workers whose job is to work five and a half days for their employer at a specific type of work and stop their work when the hour strikes, the obligation of fidelity may be one the operation of which will have a comparatively limited scope. The law would, I think, be jealous of attempting to impose on a manual worker restrictions, the real effect of which would be to prevent him utilizing his spare time. He is paid for five and a half days in the week. The rest of the week is his own, and to impose upon a man, in relation to the rest of the week, some kind of obligation which really would unreasonably tie his hands and prevent him adding to his weekly money during that time would, I think, be very undesirable. On the other hand, if one has employees of a different character, one may very well find that the obligation is of a different nature.
The proper analysis, as a matter of principle, is to look at the circumstances as a whole to determine the content and scope of the fiduciary duty of fidelity, as it is to determine the content and scope of the contractual obligation of fidelity under cl 2.1 of the employment agreements.
In the context of considering whether the conduct pleaded in SOC [47], [48] and [51] (see [210] above) resulted in each of Mr Yasin and Mr Shah breaching his fiduciary duty of fidelity towards CGA, the following principles are relevant:
(1)First, it is not necessarily a breach of duty for an employee during the course of his or her employment to prepare to compete with it once his or her employment comes to an end: Manildra Laboratories Pty Ltd v Campbell [2009] NSWSC 987 at [77], [78]; and Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1 at [102] per Besanko J (with whom Finkelstein and Jacobson JJ agreed).
(2)Secondly, an employee, following termination of employment may exploit general knowledge and know-how built up in the course of that employment, unless that knowledge is truly confidential, in competition with the former employer: Manildra Laboratories at [77], [78]. As to this second principle, McDougall J at [84] referred to the decision of the NSW Court of Appeal in Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326 as demonstrating that –
… not all confidential information becoming known to an employee during or by reason of his or her employment will be protected on termination of that employment. Where confidential information acquired by an employee during or in the course of his or her employment becomes part of the general know-how of the employee, or cannot realistically be separated from that know-how, equity will not protect it unless it is of the nature of a secret formula or process, or, more generally, something that is unlikely to be ascertained by independent inquiry or experience.
(3)Thirdly, the mere fact that an employee takes steps, during the term of her or his employment, to leave and set up business in competition with the former employer does not of itself demonstrate a breach of fiduciary obligations. The proper analysis requires “close attention to the individual steps taken, to see whether they demonstrate a breach of obligation. If none of those steps individually involve a breach of any contractual or fiduciary obligation, then collectively they will not do so”: Manildra Laboratories at [81] per McDougall J, relying on Bryson J in Weldon & Co Services [2000] NSWSC 272.
In the present case, the steps taken by Mr Yasin and Mr Shah during the course of their employment by the applicants included incorporating a company that was to carry on the foreign currency exchange business. They opened a bank account. There was a suggestion that they took some steps in relation to the fit out of the premises, although the evidence about this is weak.
In my view, none of these acts gives rise to a case for a breach of their fiduciary duties to the applicants. This was not a situation where the respondents were taking advantage of and diverting a corporate opportunity that would otherwise have accrued to the benefit of the applicants. In all the circumstances, there is no basis for finding that Mr Yasin and Mr Shah breached any fiduciary obligation owed to the applicants.
As with the breach of contract claim, it is no answer to suggest that the respondents breached their fiduciary duties having regard to the “cumulative” (T 23/18) effect of steps taken during employment to set up their rival business. As McDougall J stated, “if this conclusion is to be reached, it will be because some or all of the steps taken involve a breach of duty, not because, collectively, they can be described as ‘preparing to compete’”: Manildra Laboratories at [82].
With respect to the legitimate use by an employee of general know-how and knowledge built up in the course of employment, the relevant question is whether any of such knowledge is truly confidential. Although obligations of confidentiality and fiduciary duties are not co-extensive and indeed have been recognised as conceptually distinct and arising from different doctrinal bases (R Meagher, J D Heydon and M Leeming, Meagher, Gummow and Lehane: Equity, Doctrines and Remedies (4^th ed, Butterworths LexisNexis, 2002)) at [41–35]), there is some overlap insofar as ascertaining whether the confidential information acquired by an employee will be protected by equity, in particular, with respect to the degree to which the information is publicly available or readily discernible: see McDougall J in Manildra Laboratories at [84] reproduced in [236(2)] above).
In my view, the evidence does not disclose that the respondents used any information having the quality of confidential information. Accordingly, there is no basis on which to find the respondents in breach of their fiduciary duties to the applicants.
Finally, Mr Yasin and Mr Shah submitted that in any case no finding of breach of the pleaded fiduciary duties can be made having regard to the absence of any pleadings of material facts as to the particular confidential information of CGA alleged to have been disclosed or improperly used and the manner of that improper use. To the extent the pleading makes reference to such matters, SOC [46] makes reference to Mr Yasin and Mr Shah’s “access to documents” as one reason, among others, for the pleaded fiduciary duty described therein (but the paragraph is not relied on to found the breach of fiduciary duty and breach of contract claims: see SOC, [52]). There is no other specific pleading as to the confidential information said to be improperly utilised by the respondents. Warren J’s observations in Creative Brands at [22] regarding the deficiency of pleadings of material facts in respect of a claim for breach of a contractual duty of confidentiality applies, a fortiori, with respect to claims of breach of fiduciary duties, which as a rule of equity, is “exceedingly strict” in application: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 73 per Gibbs CJ. As was noted in In Dare v Pulham (1982) 148 CLR 658 at 664 per Murphy, Wilson, Brennan, Deane and Dawson JJ, “apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings”.
Conclusion
The application must be dismissed with costs.

I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.
Associate:
Dated: 18 October 2013

[2013] FCA 1048

18 October 2013

Key Legal Topics

Areas of Law

Tort Law

Contract Law

Consumer Law

Legal Concepts

Passing Off

Breach of Contract

Misleading or Deceptive Conduct

Implied Terms

Breach of Fiduciary Duty

Citation:	The Change Group International PLC v City Exchange Mart Pty Ltd [2013] FCA 1048
Parties:	THE CHANGE GROUP INTERNATIONAL PLC and THE CHANGE GROUP AUSTRALIA PTY LIMITED ACN 087 042 993 v CITY EXCHANGE MART PTY LTD ACN 113 024 203, RAO ARIF YASIN and INDRAVADAN SHAH
File numbers:	NSD 618 of 2011
Judge:	EDMONDS J
Date of judgment:	18 October 2013
Catchwords:	TORTS – passing off – retail unit get-up – whether respondent’s services were passed off as being the applicants’ services or associated with the applicants’ services – elements of passing off – relevance of intention in the cause of passing off – whether Jones v Dunkel inference can be drawn – whether applicant established sufficient reputation – difficulty of establishing reputation of foreign currency exchange services – reputation not established by applicant CONSUMER LAW – misleading or deceptive conduct – ss 52 and 75B of the Trade Practices Act – ss 18 and 75B of the Competition and Consumer Act – get-up of retail units – whether the respondents, by use of external signage, are likely to mislead or deceive persons familiar with the applicants’ services – whether “a not insignificant number” of persons in the Australian community have been misled or are likely to be misled – no misleading or deceptive conduct CONTRACTS – breach of contract – whether respondents breached duty to “well and faithfully serve” or use “best endeavours to promote the interest and welfare” of applicants’ business – whether causing a company to be incorporated while employed by applicant to carry on competing business after termination of employment constitutes breach – whether respondents breached duty not to use trade secrets and confidential information – strategy comprised of knowledge gleaned whilst working for applicants and from general observation – no breach of employment agreements EQUITY – breach of fiduciary duty of fidelity – whether regard can be had to the cumulative effect of steps taken by respondents to establish a future competitor during their employment with the applicant – whether respondents used any confidential information – no breach of fiduciary duty of fidelity
Legislation:	Trade Practices Act 1974 (Cth) ss 52, 53, 75B, 80, 82 Competition and Consumer Act 2010 (Cth) s 75B, Sch 2 – ss 18, 29, 232, 236 Evidence Act 1995 (Cth) s 80 Anti-Money Laundering And Counter-Terrorism Financing Act 2006 (Cth)
Cases cited:	Apand Pty Ltd v Kettel Chip Co Pty Ltd (1994) 52 FCR 474 cited Australian Securities and Investment Commission v Hellicar [2012] 286 ALR 501 cited Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1 cited Brock v Terrace Times Pty Ltd (1982) 40 ALR 97 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 followed Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 cited Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 cited Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 cited ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 followed Creative Brands Pty Ltd v Franklin [2001] VSC 338 cited Dare v Pulham (1982) 148 CLR 658 cited Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326 cited Digital Pulse Pty Ltd v Harris (2002) 40 ACSR 487 cited Domain Names Australia Pty Ltd v au Domain Administration Ltd (2004) 139 FCR 215 cited Edmonds v Donovan (2005) 12 VR 513 cited Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431 discussed Hansen Beverage Company v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 cited Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169 cited Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 cited Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 discussed Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 cited Interlego AG v Croner Trader Pty Limited (1992) 39 FCR 348 cited Jack Brabham Engines Ltd v Beare [2010] FCA 872 cited Jones v Dunkel (1959) 101 CLR 298 discussed Kettle Chip Co Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152 cited Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 cited Manildra Laboratories Pty Ltd v Campbell [2009] NSWSC 987 approved Manly Council v Byrne and Anor [2004] NSWCA 123 cited Mars Australia Pty Ltd v Sweet Rewards Pty Ltd (2009) 81 IPR 354 cited Optical 88 Limited v Optical 88 Pty Ltd (No 2) (2010) 275 ALR 526 approved Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited Powell v Birmingham Vinegar Brewery Co Ltd (1896) 13 RPC 2 cited R & C Products Pty Ltd (t/a Samuel Taylor) v Sterling Winthrop Pty Ltd (1993) 27 IPR 223 cited Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 followed Sterling Winthrop Pty Ltd v R & C Products Pty Ltd (1994) ATPR 41-308 cited Thai World Import & Export Co Ltd v Shuey Shing Pty Ltd (1989) IPR 289 cited Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 cited W D & H O Wills v Philip Morris (1997) 39 IPR 356 cited Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272 cited Finn P, Fiduciary Obligations (2^nd ed., Law Book Company, 1977) Meagher R, Heydon JD and Leeming M, Meagher, Gummow and Lehane: Equity, Doctrines and Remedies (4^th ed., Butterworths LexisNexis, 2002)
Date of hearing:	11-15, 18, 21 and 22 March 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	243
Counsel for the First and Second Applicants:	Mr JM Hennessy SC and Mr JB Spinak
Solicitor for the First and Second Applicants:	ClarkeKann Lawyers
Counsel for the First, Second and Third Respondents:	Mr DA Lloyd with Ms R Withana
Solicitor for the First, Second and Third Respondents:	John Orford & Associates

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 618 of 2011

JUDGE:	EDMONDS J
DATE OF ORDER:	18 OCTOBER 2013
WHERE MADE:	SYDNEY

JUDGE:	EDMONDS J
DATE:	18 OCTOBER 2013
PLACE:	SYDNEY

CGA UNITS TRADING AS AT 1 JULY 2005
Commencement Date	Location	Closing Date
1.	August 2000	452 George Street, Sydney	Still trading
2.	Late 2001	Imperial Arcade, 168 Pitt Street Mall, Sydney	12/11/2008
3.	September 2002	Sydney Airport Departures Check-in H	15/09/2007
4.	March 2003	115 Pitt Street, Sydney	Still trading
5.	December 2003	Darling Park Monorail Station, Sussex Street, Sydney	15/12/2009
6.	February 2004	79 Oxford Street, Sydney	1/11/2009
7.	July 2004	Sydney Airport Departures Check‑in G	1/07/2007
8.	August 2004	222 Pitt Street, Sydney	Still trading
9.	October 2004	Midtown Kiosk, 184 Swanston Street, Melbourne	Still trading
10.	November 2004	167 Swanston Street, Melbourne	Still trading
11.	November 2004	67 Swanston Street, Melbourne	Still trading

CEM UNITS CURRENTLY TRADING
Opening Date	Location
1.	July 2006	37 Pitt St, Sydney
2.	July 2006	419 Pitt St, Sydney
3.	September 2006	228 Flinders St, Melbourne
4.	November 2006	101 Swanston St, Melbourne
5.	December 2007	55 Swanston St, Melbourne
6.	August 2008	217 George St, Brisbane
7.	November 2009	102 Queen St, Brisbane
8.	December 2009	134 Elizabeth St, Melbourne
9.	Mid 2010	13-17 Pitt St, Sydney
10.	Mid 2010	700 George St, Sydney
11.	October 2010	141 Queen St (Shop G-8, Albert Street Mall) Brisbane

CEM UNITS NO LONGER TRADING
Opening / Closing Date	Location
1.	July 2005 – Feb 2012	636 George St, Sydney
2.	Jan 2006 – Nov 2009	244 Pitt St, Sydney
3.	Mid 2009 – April 2012	614 George St, Sydney
4.	July 2009 – June 2010	523 Phillip St, Gateway Building Sydney
5.	June 2010 – April 2011	127 Oxford St Sydney