Software Licensing and Copyright Infringement Case

The court determined that the claimant was entitled to use the software under a non-exclusive license, but the agreement was abandoned by 2004. The claimant also succeeded in proving copyright infringement and breach of confidentiality. The ruling was made in the context of software licensing and copyright law.

OUTCOME: Allowed

Supreme Court New South Wales

Medium Neutral Citation: [COMPANY_1] & [NAME_4] v [NAME_5] & Ors [2014] NSWSC 1252 Hearing dates: 2 - 6 and 10 - 11 June 2014 Decision date: 12 September 2014 Jurisdiction: Equity Division Before: Black J Decision: Parties to be heard as to orders that ought to be made to give effect to findings in the judgment. Catchwords: CONTRACTS - construction - where parties entered into contract for sale of non-exclusive "interest" in software - nature of "interest" acquired by first plaintiff - whether interest was limited to software which existed at relevant date - whether first defendant owned copyright in software to exclusion of second defendant - whether first plaintiff was limited to licensing software to particular customer - whether first defendant had express or implied obligation to provide first plaintiff with source code and updates for, and modifications and developments to, software - whether initial contract was abandoned by parties.

CONTRACTS - construction - where relevant parties entered into subsequent contract in respect of software - scope of licence granted under contract - whether licence was limited to specified period - whether second plaintiff was permitted to grant licences to new customers after that period - effectiveness of assignment - whether second defendant required to provide updates to second plaintiff to ensure software compatibility with other software.

CONTRACTS - breach - whether parties had breached obligation to deposit source code with escrow agent - whether conditions of agreement for release of software from escrow were satisfied - whether second defendant breached obligations to provide development services, information and assistance - confidentiality - whether second defendant had received and disclosed confidential information - good faith and cooperation - whether there was a breach of obligation of good faith.

CONTRACTS - termination - whether second defendant had properly terminated agreement - whether established that second plaintiff breached contract by non-payment of licence fees - whether second defendant had abandoned rights to termination - whether notice of termination of agreement was effectively served - whether there was a failure by second defendant to comply with dispute resolution clauses - whether termination was invalidated by non-compliance with dispute resolution clauses.

CONTRACTS - existence of contract - whether established that entity was granting licences under previous agreement - where person is director of two associated companies - whether sub-licence was created by decision of common director.

TORTS - tort of conspiracy - harm by unlawful means - where second and third [NAME_6] had entered into purchase agreement - where [NAME_6] had terminated earlier agreement - whether established that conduct constituted a tort of conspiracy - whether conduct was unlawful - whether established that a purpose of conduct was to harm second plaintiff - whether established that second plaintiff has suffered loss or damage caused by conduct.

TORTS - tort of inducing breach of contract - whether conduct constituted breach of earlier agreement - whether third defendant induced or procured second defendant to engage in conduct - whether third defendant had sufficient knowledge of terms of previous agreement - whether third defendant had requisite intention for second defendant to breach the previous agreement.

TRADE PRACTICES - misleading or deceptive conduct - where representations were made on website registered to company not party to proceedings - whether third defendant engaged in trade or commerce between Australia and another country - whether third defendant engaged in conduct involving the use of telegraphic or telephonic services - whether established that representations were made by third defendant - whether representations were misleading or deceptive or likely to mislead or deceive.

TRADE PRACTICES - unconscionable conduct - whether second and third [NAME_6] are corporations engaged in trade or commerce - whether [NAME_7] were under a special disadvantage known to second and third [NAME_6] - whether second and third [NAME_6] unconscientiously took advantage of [NAME_7]' special disadvantage - whether second and third [NAME_6] were engaged in conduct in connection with supply or possible supply of goods or services - whether second and third [NAME_6] engaged in unconscionable conduct under [NAME_8] ss 20 and 21.

[NAME_9] - copyright - groundless threats of legal proceedings - whether third defendant made threats in respect of infringement of copyright - whether statements constituted groundless threats of copyright infringement.

WORDS AND PHRASES - "interest", "customer".

[NAME_9] - copyright - original [NAME_10] in which copyright subsists - whether copyright subsists in each update or new release of software and user documentation - whether first cross-claimant owned copyright in software releases in relevant periods.

[NAME_9] - copyright - infringement - whether third cross-defendant infringed copyright in software - whether first, second and fourth cross-[NAME_6] had authorised alleged copyright infringement - liability of director of cross-[NAME_6] - whether [NAME_11] are estopped from bringing an action for infringement of copyright - whether additional damages should be awarded under Copyright Act 1968 (Cth) s 115(4).

TRADE PRACTICES - misleading or deceptive conduct - whether established that alleged representations were made by first, second and third cross-[NAME_6] - whether representations were misleading or deceptive or likely to mislead or deceive - whether [NAME_11] had relied on alleged representations - whether established that loss and damage suffered by [NAME_11] was caused by representations - accessorial liability - application of [NAME_8] ss 18 and 29.

EQUITY - breach of confidentiality - whether information in licence key generator is property - whether information is confidential - whether second and third cross-[NAME_6] owed an obligation of confidentiality to [NAME_11] - whether second and third cross-[NAME_6] breached obligation of confidence.

[NAME_9] - trade marks - infringement - where third cross-defendant had used phrase on website - whether first cross-claimant has standing to bring claim - whether cross-claimant is entitled to be registered as owner of registered trade mark - whether conduct of cross-[NAME_6] constituted trade mark infringement - whether cross-[NAME_6] are liable for additional damages. Legislation Cited: - [NAME_8] ss 2, 18, 20, 21, 21(2), 21(5), 21(6), 29(g), 29(h), 151(g), 151(h), 236 - Competition and Consumer Act 2010 (Cth) s 6(2)(a)(i), 6(3)(a), 131, 163(4), Sch 2 - Competition and Consumer Legislation Amendment Act 2011 (Cth) - Conveyancing Act 1919 (NSW) s 12 - Copyright Act 1968 (Cth) ss 10, 15, 31, 31(1)(a)(vi), 32, 35(2), 35(6), 36(1), 36(1A), 43B, 115, 115(4), 115(4)(b)(i), 115(4)(b)(ia), 115(4)(b)(ib), 115(4)(b)(iii), 115(4)(b)(iv), 129, 196, 196(2), 196(4),197, 202 - Designs Act 1906 (Cth) ss 19(2), 19(3) - Evidence Act 1995 (NSW) s 140 - Trade Marks Act 1995 (Cth) ss 8, 17, 27(2), 88, 120, 120(1), 122(1)(b) Cases Cited: - Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 - Al Jadeed TV v United Broadcasting International Pty Ltd [2011] FCA 983; (2011) 283 ALR 205 - Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26; (1995) 130 ALR 469 - Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 111 ALR 269; (1992) 24 IPR 461 - AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1330; (2004) 139 FCR 223 - Antocks Lairn Ltd v I Bloohn Ltd [1971] FSR 490; [1972] RPC 219 - [COMPANY_12] v [COMPANY_16] (in liq) [2007] FCAFC 40; (2007) 157 FCR 564 - Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] FCA 986; (2013) 102 IPR 400 - Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 - Australasian Performing Rights Association Ltd v Valamo Pty Ltd (1990) 18 IPR 216 - Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 - Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 - Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 - Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCAFC 4; (2002) 117 FCR 301 - Australian Competition and Consumer Commission v [COMPANY_17] (in liq) (No 5) [2014] FCA 340; (2014) 98 ACSR 347 - Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132 - Autodesk Inc v Yee (1996) 68 FCR 391; 139 ALR 735 - Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58; (1990) 171 CLR 88 - Ballard v Multiplex [2012] NSWSC 426 - [NAME_19] v [COMPANY_20] [1964-5] NSWR 229 - BP Refinery (Westernport) Pty Ltd v Hastings Shire (1994) 180 CLR 266 - Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244; 157 ALR 193 - Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 558 - Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 - Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 - C Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317; 2 All ER 415 - Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 - [COMPANY_22] t/as Greenhill Capital Partners v Aztec Resources Ltd [2014] NSWCA 123 - CBS Records Australia Ltd v Gross (1989) 15 IPR 385 - CGM Investments Pty Ltd v Chelliah [2003] FCA 79; (2003) 196 ALR 548 - Coca-Cola Company v All-Fect Distributors Ltd [1999] FCA 1721; (1999) 96 FCR 107 - [COMPANY_23] v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 - Comdox No 24 Pty Ltd v Robins [2009] NSWSC 367 - [COMPANY_24] Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 - Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 - Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 - Copyright Agency Ltd v New South Wales [2008] HCA 35; (2008) 233 CLR 279 - Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 - Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 472; (2006) 230 ALR 437 - Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605 - Craig v Silverbrook [2013] NSWSC 1687 - Credit Connect v Carney [2010] NSWSC 910 - Cummins v Vella [2002] FCAFC 218 - Daly v Sydney Stock Exchange Ltd [1986] HCA 25; (1986) 160 CLR 371 - [NAME_26] v Commonwealth of Australia [2014] FCA 552 - DC Thomson & Co Ltd v Deakin [1952] Ch 646; [1952] 2 All ER 361 - Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326 - Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169; - DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1977-1978) 138 CLR 423 - [COMPANY_27] v [COMPANY_28] (No 3) [2014] FCA 909 - E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15; (2010) 241 CLR 144 - [NAME_30] (t/as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 306 ALR 25 - Fabig v Photon Group [2010] NSWSC 358 - Facton Ltd v Rifai Fashions Pty Ltd [2012] FCAFC 9; (2012) 199 FCR 569 - Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984; (2010) 189 FCR 109 - Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 - Fazio v Fazio [2012] WASCA 72 - Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 - Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 - Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 - [NAME_32] v [NAME_33] (No 2) [2012] NSWSC 61 - Gardex Ltd v Sorata Ltd [1986] RPC 623 - Gram Engineering Pty Ltd v Bluescope Steel Ltd [2013] FCA 508; (2013) 106 IPR 1 - Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1 - Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 - Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; (2001) 110 FCR 157 - Iacullo v Hillam [2014] NSWSC 1021 - IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 239 CLR 458 - Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710 - Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; 111 ALR 577 - Interlego AG v Tyco Industries Inc [1989] AC 217 - Johnson v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 - Johnson & Johnson Aust Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326; 101 ALR 700 - Kalamazoo Australia Pty Ltd v Compact Business Systems Pty Ltd (1985) 84 FLR 101; 5 IPR 213 - Keller v LED Technologies Pty Ltd [2010] FCAFC 55; (2010) 185 FCR 449 - King v Milpurrurru (1996) 66 FCR 474; 136 ALR 327 - LED Builders Pty Ltd v Masterton Homes (NSW) Pty Ltd (1994) 54 FCR 196; 30 IPR 447 - Macmillan & Co Ltd v Cooper (1924) 40 TLR 186 - Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 - McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 - McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 - [NAME_34] of Australia Ltd v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1 - Mentmore Manufacturing Co Ltd v National Merchandising Manufacturing Co Inc (1978) 89 DLR (3d) 195 - Microsoft Corp v Auschina Polaris (1996) 71 FCR 231; 142 ALR 111 - National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59; (2012) 201 FCR 147 - Nature's Blend Pty Ltd v Nestle Australia Ltd [2010] FCAFC 117; (2010) 272 ALR 487 - Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27 - Oren v Red Box Toy Factory Ltd [1999] FSR 785 - Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40; (2006) 149 FCR 395 - Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 - Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 - [NAME_35] v Commissioner of Taxation [1970] HCA 36; (1970) 121 CLR 154 - Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 - [COMPANY_36] (t/as Frito-Lay Australia) v Kettle Chip Co Pty Ltd (1996) 135 ALR 192; 33 IPR 161 - Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 - Polygram Pty Ltd v Golden Additions Pty Ltd (1997) 76 FCR 565; 148 ALR 4 - Rafferty v Madgwicks [2012] FCAFC 37; (2012) 203 FCR 1 - [COMPANY_37] (in liq) v Belvedere Fish Guano Co Ltd [1921] 2 AC 465 - [COMPANY_39] v [NAME_41] (1992) 26 NSWLR 234 - [COMPANY_43] (in prov liq) [2014] NSWSC 789 - [COMPANY_44] v iiNet Ltd [2012] HCA 16; (2012) 248 CLR 42 - RPR Maintenance Pty Ltd v Marmax Investments Pty Ltd [2014] FCA 409 - [COMPANY_45] v the Commonwealth of Australia [2009] NSWCA 373 - [NAME_46] ([NAME_47]) v [NAME_48] (The "Palitana") [1924] 20 Ll L Rep 140 - South State Food & Beverage Pty Ltd v Kaur [2005] FCA 587 - State of New South Wales v Hunt [2014] NSWCA 47 - Stratton Finance Pty Ltd v Webb [2014] FCAFC 110 - Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144 - [NAME_49] Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 - Telmak Teleproducts (Aust) Pty Ltd v Bond International Pty Ltd (1985) 66 ALR 118; 5 IPR 203 - Telstra Corp Ltd v Phone Directories Co Pty Ltd [2010] FCAFC 149; (2010) 194 FCR 142 - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 - Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 - [COMPANY_50] v [COMPANY_52] (in liq) [2014] NSWSC 382 - Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689 - United Group Rail Services Ltd v Rail Corporation (NSW) [2009] NSWCA 177; (2009) 74 NSWLR 618 - Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 - Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507; 2 All ER 257 - White Horse Distillers Ltd v Gregson Associates Ltd [1984] RPC 61 - Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 - Yorke v Lucas [1985] HCA 65; [1985] HCA 65 - Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; (2012) 293 ALR 537 Texts Cited: - [NAME_53] and [NAME_55], "20 years on from [NAME_38] - is the contractual duty of good faith any clearer?" (2012) 24 Australian Construction Law Bulletin 23 - [NAME_57], "Good faith and Australian contract law: A practical issue and a question of theory and principle" (2011) 85 Australian Law Journal 341 - [NAME_59], [NAME_61] & [NAME_63], Contract Law in Australia, (5th ed 2007, [NAME_65]) - [NAME_59], Breach of Contract, (2011, [NAME_65]) - [NAME_67], "The Implied Duty of Good Faith in Australian Contract Law" (2006) 108 Australian Construction Law Newsletter 280 - N [NAME_71], [NAME_74]'s Law of Contract, (9th Australian ed 2008, [NAME_65]) Category: Principal judgment Parties: [COMPANY_1] (First Plaintiff/First Cross-Defendant) [COMPANY_76] (Second Plaintiff/Second Cross-Defendant) [NAME_78] (First Defendant) [COMPANY_81] (Second Defendant/Second Cross-Claimant) [COMPANY_82] (Third Defendant/First Cross-Claimant) [COMPANY_85] (Third Cross-Defendant) [NAME_87] (otherwise known as [NAME_90]) (Fourth Cross-Defendant) [COMPANY_92] (Fifth Cross-Defendant) Representation: Counsel: [redacted] [NAME_95] SC/S L Ross ([NAME_6]/[NAME_11]) Solicitors: [redacted] [NAME_98] ([NAME_6]/[NAME_11]) File Number(s): 2012/282948

Judgment 1These proceedings relate to the ownership and control of software known as [NAME_99] ("[NAME_101]"), which is used in the design and manufacture of cold form metal light gauge wall frames, trusses, flooring and roofing used in the construction of residential and commercial buildings. 2The First Plaintiff, [COMPANY_1] ("[NAME_102]"), is a company associated with Mr [NAME_90]. The Second Plaintiff, [COMPANY_76] ("[NAME_103]"), is also now a company associated with [NAME_104]. [NAME_103] was incorporated on 3 February 2003 and [COMPANY_105] ("[NAME_106]"), which is a manufacturer of roll forming machines, then held an 80% interest and [NAME_102] a 20% interest ([NAME_89] 26.10.12 [34]); [NAME_5] 14.10.13 [72.2]). [NAME_106] was also the owner of [COMPANY_108] (a New Zealand company), which supplied rollforming machines manufactured in New Zealand. A Shareholders Agreement between [NAME_106] and [NAME_102] was executed in March 2004 ([NAME_89] 19.3.14 [77]). [NAME_103] has been a wholly-owned subsidiary of [NAME_102] since 30 September 2008 ([NAME_89] 19.3.14 [186]). A third entity, [COMPANY_85] ("[NAME_110]") (which was previously known as [COMPANY_111] and changed its name on or about 8 December 2008 (T69)), is also a wholly-owned subsidiary of [NAME_102], and [NAME_104] is a director of [NAME_102], [NAME_103] and [NAME_110]. An earlier version of the Statement of Claim (Statement of Claim 26.10.12 [37]) pleaded that, after its authorisation to use [NAME_101], [NAME_110] acted as the agent of both [NAME_102] and [NAME_103] and no leave was sought to withdraw that admission. 3JRC and [NAME_103] conducted and [NAME_110] now conducts (at least in respect of new clients) a business supplying equipment to manufacture steel frame structures for residential and commercial construction and associated software. [NAME_104] described [NAME_112]' business as follows: "[NAME_112] are in the business of designing and supplying manufacture systems for light gauge steel framing, utilising and integrating computer aided design software ("CAD"), computer aided manufacturing software ("CAM"), machinery and [NAME_113] data for the manufacture of light gauge steel wall panels, roof trusses and floors, typically used in residential, commercial and industrial buildings. As part of that work both [NAME_7] licence various software programs to their customers, including CAD software" ([NAME_89] 26.10.12 [6]). That evidence requires qualification to the extent that new business has for a significant time been undertaken, at least in respect of new clients, not by [NAME_112] but by [NAME_110]. 4The First Defendant is [NAME_114], who developed [NAME_101]. The Second Defendant, [COMPANY_81] ("[NAME_80]"), was incorporated on 11 November 2003 and is controlled by [NAME_115] and took over his business ([NAME_5] 14.10.13 [72], [76]). On 2 November 2011, [NAME_80] and [NAME_115] assigned their rights in [NAME_101] to the Third Defendant, [COMPANY_82] ("[NAME_116]"). 5Mr [NAME_5]' ownership of the relevant copyright is accepted in both parties' pleadings. Paragraphs 4 and 7 of [NAME_112]' Amended Statement of Claim relevantly plead that: "4. [[NAME_115]] was the author and the original owner of copyright in the [NAME_101] Application. 7 At all material times: (a) copyright subsisted in the [NAME_101] Application; and (b) [[NAME_115]] was the first owner of copyright in the [NAME_101] Application and would be the owner of copyright in any updates to the [NAME_101] Application when the copyright came into existence." The term "[NAME_101] Application" is defined in paragraph 3 of the Amended Statement of Claim as a suite of computer programs known as [NAME_99]. Paragraph 7 of the Amended Statement of Claim is in turn particularised by a statement that the [NAME_101] Application and each of the computer programs was a literary work and that [NAME_115] was the author of that application and at the relevant time the updates to that application. The [NAME_6] adopt the same position in pleading that copyright subsists in [NAME_101] as an original literary work (or [NAME_10]) under s 10 of the Copyright Act 1968 (Cth) and that [NAME_115] is and was at all material times the author of the computer programs (source code) for the purposes of s 35(2) of the Copyright Act. By paragraphs 1 and 2 of their Defence to the [NAME_117], [NAME_112] also admit that [NAME_115] made [NAME_101] and end user manuals and other documentation for use with [NAME_101] and updates and new releases of [NAME_101] and user documentation. These statements are an essential aspect of [NAME_112]' claims. 6Substantial evidence was led as to the history and functionality of [NAME_101]. By about 1996 or 1997, [NAME_101] included data files and software and was able to operate with rollforming machines, and included a computer numeric control file to permit the transfer of instructions between a computer and a roll form machine which contained the details necessary to produce the relevant steel item ([NAME_5] 4.12.12 [16]-[21]), tables to calculate the placement of each structure in the relevant steel framework ([NAME_5] 4.12.12 [24]) and "look-up" tables or data files containing the dimensions and other relevant information for each steel item within that framework ([NAME_5] 4.12.12 [24]). Several user manuals in respect of the software and its applications are in evidence. After a user selects the relevant module which it wishes to use, the user can enter settings for, for example, applicable design standards and other information, and [NAME_101] is then used with third party computer aided design ("CAD") software to draw the roof, walls or floors, as the case may be, in layout form on the computer screen. The [NAME_118] in turn applies the user's settings to that drawing to generate a drawing in elevation form and information about that drawing, and generates a file containing data that will be used to manufacture the relevant steel items. 7From about 2002, [NAME_102] and later [NAME_103] used (and, so far as new business is concerned, [NAME_110] now uses) [NAME_118] as one of several items used for the design and manufacture of steel framing. These include [NAME_113] tables and manuals in book and electronic form; computer aided manufacture software which reads the data file generated by [NAME_101] and prepares the relevant data for manufacturing; machine control software known as "frameware" that is used by the operator of the roll-form machinery to manufacture steel framing components from that data; and roll-form machinery which is controlled by the frameware. 8The [NAME_118] [NAME_10] together with CAD software, including software referred to as "[NAME_119]". That software is controlled by the [NAME_120], which is a group of third parties who use and license [NAME_119] and grants members the right to use and sub-license [NAME_119] and provides access to source code and technical support. There is an issue in these proceedings as to the impact of updates to [NAME_119] on the use of the [NAME_118] by [NAME_112]. For a period, the [NAME_120] had introduced a rule restricting its members from selling or marketing software programs that operated with earlier rather than current [NAME_119] code. 9By orders made by Bergin CJ in Eq on 19 July 2013, questions of liability and quantum were separated, so that this aspect of the proceedings deals only with the question of liability. Each party relied on lengthy affidavits and made numerous objections, many of which were justified, to the admissibility of affidavit evidence of the other parties. Happily, many of the objections were resolved by agreement between Counsel and large parts of the affidavit evidence were not read. [NAME_112] identified numerous issues to be determined in the proceedings, involving 40 issues in respect of the primary claim and 34 issues in respect of the [NAME_117] That list of issues, although elaborate, is of assistance in identifying the matters to be determined in the proceedings. Those issues can conveniently be grouped, as [NAME_112] did in their lists of issues, into several categories. I will refer to those issues in addressing particular questions below. A brief chronology of events 10I should now outline several of the key events and agreements although I will refer to the terms of those agreements in greater detail below. 11Mr [NAME_5] and [NAME_102] entered into a Deed of Agreement date 28 July 2002 ("2002 Agreement") for the sale of a non-exclusive "interest" in respect of the [NAME_118]. The matters in dispute between the parties include the nature of the right or interest sold under the 2002 Agreement; whether the 2002 Agreement was replaced or superseded by later licences granted to [NAME_103]; and whether any licence under the 2002 Agreement was revoked or otherwise came to an end. 12An agreement was entered into in July 2003 between [NAME_103], [NAME_115] and [COMPANY_122] ("[NAME_121]"), a company associated with a consulting engineer, [NAME_123] (Ex P2, 48), by which [NAME_115] granted a software licence to [NAME_103] which authorised [NAME_103] to grant sub-licences of [NAME_101] ([NAME_89] 26.10.12 [35], Ex P7, 3/143-158) ("[NAME_126] Agreement"). The [NAME_6] contend that, from July 2003, [NAME_103] replaced [NAME_102] as the licensee of [NAME_101] with the right to grant sub-licences. 13On 25 February 2004, [NAME_127] granted [NAME_103] an exclusive licence, inter alia, to "use and exploit" [NAME_101] for the territory of Australia ("Exclusivity Agreement") ([NAME_89] 26.10.12 [41], Ex P7, 3/185-199; [NAME_5] 4.12.12 [87]). The Exclusivity Agreement was executed in the context of discussions between [NAME_103] and [NAME_126], a customer, to provide it with exclusivity, which ended in about July 2004. The [NAME_6] accept, in substance, that this included a licence of the copyright in [NAME_101]. The parties terminated the Exclusivity Agreement on 22 February 2005 with effect from 31 March 2005 ([NAME_89] 26.10.12 [49], Ex P7, 3/232; [NAME_5] 4.12.12 [104]-[105]). 14By an undated letter on the letterhead of [NAME_101], sent by [NAME_115] on 1 March 2004 (Ex P2, 79), [NAME_115] stated as follows: "To whom it may concern: This is to certify that [[NAME_102]] have been given non exclusive rights to on sell Quick Series Software as defined under the "Deed of Agreement" dated 28thth [sic] July 2002. While not explicitly stated in this agreement, [[NAME_102]] has also been granted a non-exclusive right to market [NAME_99] under the [NAME_128] banner." 15At one point in cross-examination, [NAME_104] suggested that the rights held by [NAME_103] arose from a technology licence from [NAME_102], rather than from the 2004 Agreement. The Agreement headed "Technology Licence Agreement" between [NAME_102], [NAME_104] and [NAME_103] (Ex D2) was dated 12 March 2004 and recited that [NAME_103] desired to acquire, and [NAME_102] and [NAME_104] desired to provide, a perpetual, royalty-free right to use "The Goods" and to grant sub-licences to them. The term "The Goods" was defined as a licence of the goods set out in Schedule 1 of the Agreement which referred, inter alia, to [NAME_128]-[NAME_101] 11.231 and any other [NAME_9] subsequently licensed by [NAME_102] or [NAME_104]. Clause 2 of that agreement in turn provided that [NAME_102] and [NAME_104] licensed the irrevocable, worldwide, fully paid-up, royalty-free right and licence to use "the goods" as set out in that Schedule, with the right to grant sub-licences of the same scope to others, and represented and warranted that they had the right to license "The Goods" to [NAME_103] under that agreement. That document was an annexure to the Shareholders Agreement between [NAME_102] and [NAME_106] in respect of [NAME_103]. That agreement was not given any substantial emphasis in the parties' pleadings or submissions. I do not consider that it had an overarching continuing operation, given the agreement subsequently entered between [NAME_103] and [NAME_80] in August 2004 to which I refer below, which took effect as the basis of the parties' continuing relationship for the reasons noted below. 16A further agreement titled "[NAME_118] Agreement" between [NAME_103] and [NAME_80] ("2004 Agreement") was executed on 11 August 2004 ([NAME_89] 26.10.12 [46], Ex P7, 3/205). A Development Agreement, pursuant to cl 4.1 of the 2004 Agreement, was also signed on that date ([NAME_89] 26.10.12 [48], Ex P7, 3/220; [NAME_5] 4.12.12 [98]). 17A memorandum of understanding was signed between [COMPANY_129], a predecessor of [NAME_116], and [NAME_115] in September 2005 and there were further dealings and communications between [NAME_116] and [NAME_115] in May 2006 ([NAME_130] 31.10.13 [23]-[27]). 18SFSI was incorporated in October 2007. [NAME_112] contend that, in 2009, [NAME_102] sub-licensed [NAME_110] to use [NAME_101] and that [NAME_110] in turn licensed the use of that software to a number of its customers under contracts between [NAME_110] and those customers. 19Negotiations between [NAME_115] and [NAME_116] for the sale of the interest in [NAME_101] to [NAME_116] took place in mid-September 2011 ([NAME_130] 31.10.13 [32]-[33]) and a Purchase Agreement ("[NAME_116] Agreement") was executed on 31 October 2011 ([NAME_5] 4.12.12 [33]; [NAME_130] 31.10.13 [18]) and announced by [NAME_116] in mid-November 2011 ([NAME_89] 1.11.12 [13], Annexure "F"). The evidence of [NAME_116]'s chief executive, [NAME_131], is that he first became aware of the terms of the 2004 Agreement on 18 November 2011, after the purchase of [NAME_101] had been completed ([NAME_130] 31.10.13 [36]). 20In December 2011, [NAME_80] and [NAME_116] gave notice of breaches under the 2004 Agreement, by reference to licences granted by [NAME_103] and/or [NAME_110] on which licence fees had not been paid. On 13 January 2012, [NAME_103] issued a notice of dispute to [NAME_80] under the 2004 Agreement. On 24 January 2012, [NAME_80] purported to terminate the 2004 Agreement by letter from its solicitors to [NAME_103]'s solicitors. The witnesses 21There are significant differences between the accounts given by [NAME_104] and [NAME_115] of particular conversations and of some events. Both were giving evidence of events that occurred many years ago, including conversations at about the time of the entry into the 2002 Agreement, the 2004 Agreement and the time the relationship between them deteriorated prior to April 2009. Both gave affidavit evidence setting out the effect of conversations between them, although [NAME_115] fairly conceded the limits of his recollection in cross-examination. Although I make several observations as to the credit of witnesses below, many issues in the proceedings turn on the construction of written documents, in the context of surrounding circumstances that emerge from contemporaneous correspondence or inferences that can properly be drawn from objective facts. 22To the extent that credit issues need to be determined in respect of particular conversations, I have had regard to the fact that objective evidence is likely to be the most reliable basis for determining them. I summarised the relevant principles in [COMPANY_43] (in prov liq) [2014] NSWSC 789 at [10], where I noted that the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his or her motives, and to the overall probabilities: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57. I also referred to [NAME_132] LJ's observation in [NAME_46] ([NAME_47]) v [NAME_48] (The "Palitana") [1924] 20 LI L Rep 140 at 152, recently cited by Sackar J in Craig v Silverbrook [2013] NSWSC 1687 at [141], that: "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." In Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34], Keane JA (as his Honour then was) similarly noted that: "[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." That observation was recently cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of New South Wales v Hunt [2014] NSWCA 47 at [56]. 23I should, however, make several observations about the key witnesses. [NAME_104]'s evidence was accurate and precise as to many issues including the technical aspects of his companies' business, and some aspects of it were supported by surrounding correspondence. He was plainly well-informed as to the issues in [NAME_112]' case and it seemed to me that he sought to minimise the disclosure of matters that might be adverse to that case and would not make any concession that might be adverse to that case. His affidavit evidence verged on being misleading in respect of an important issue in the case, referring at length to the nature of the business of [NAME_112], [NAME_102] and [NAME_103], without acknowledging that [NAME_103] had substantially ceased to conduct that business (in particular, ceasing to deal with new customers) in 2009 and that [NAME_110] (which is not a Plaintiff) had, in effect, assumed its business. His evidence in cross-examination as to the nature of any continuing business of [NAME_103] was contradictory, as he shifted positions as to the extent to which [NAME_103] had conducted any business after that time. His attempt to avoid, in affidavit evidence, recognition of the confidentiality of the licence key generator supplied by [NAME_133] to [NAME_134] was also implausible. 24The [NAME_7] make adverse credit submissions in respect of both [NAME_115] and [NAME_131], and submit that their evidence ought not be accepted where it is uncorroborated by independent evidence. In particular, [NAME_112] submit that the Court should not accept [NAME_115]' evidence in relation to the circumstances surrounding the entry of the 2002 Agreement; the scope of the 2002 Agreement; his knowledge of [NAME_110]; or the extent of his involvement in the decision-making concerning the notification of alleged breaches and the purported termination of the 2004 Agreement. I have considered the detailed criticisms made of [NAME_115]' evidence and the examples that [NAME_112] give of evidence which is said to be internally inconsistent, untrue or contradicted by other evidence. I do not consider that [NAME_115]' evidence that he understood the 2002 Agreement to be limited to [NAME_135], a customer of [NAME_102], to be adverse to his credit. There was nothing implausible about such an understanding, given the context of the entry into that agreement, notwithstanding that subjective intention is not taken into account in contractual construction, by reason of the objective theory of contract. 25I accept that [NAME_115]' affidavit evidence may well have overstated the extent of his recollection of particular conversations and that there were occasions where [NAME_115]' evidence in cross-examination qualified his affidavit evidence. In some cases, that may be a matter adverse to a witness's credit. In this case, it reflected [NAME_115]' honest and direct answers to questions in cross-examination and his readiness to accept the limits of his recollection. [NAME_115], without hesitation, conceded matters that were apparently adverse to his case, including the fact that he had withdrawn from engagement with [NAME_104] in the later part of the relevant period. I accept that (as [NAME_112] contend) [NAME_115] cannot be treated by the Court as being independent of [NAME_116], where he is under a continuing retainer to provide services to [NAME_116]. However, lack of independence is not the same as lack of honesty. I formed a generally favourable view of [NAME_115]' evidence, particularly in cross-examination. 26The [NAME_7] also submitted, with some justification, that [NAME_131]'s evidence ought also be approached with circumspection. They submit, and I accept, that there were occasions on which he was evasive, as they put it, or at least reluctant to address questions that he considered might be adverse to [NAME_116]'s interests (for example, T355; T373-374) and there were points where he did not accept matters that obviously followed form his evidence, including that he was seeking to dissuade a third party, [COMPANY_136], from dealing with [NAME_110] and to attract its business to [NAME_116] in December 2011 (T366-367). Having said that, [NAME_131]'s evidence was largely relevant to the question of [NAME_116]'s knowledge of the 2004 Agreement and its purposes in dealings with [NAME_115], [NAME_80] and [NAME_112]. So far as his and [NAME_116]'s knowledge of the 2004 Agreement, at the time [NAME_116] entered the [NAME_116] Agreement is concerned, his evidence is plausible and corroborated by [NAME_115]' evidence which I accept, and the objective evidence provides the strongest basis for findings as to the purposes of [NAME_116] in respect of the relevant dealings with [NAME_115], [NAME_80] and [NAME_112]. I am not satisfied by one aspect of [NAME_131]'s evidence as to [NAME_116]'s standing to bring a claim for trade mart infringement, to which I will refer below. The nature of the interest acquired by [NAME_102] under the 2002 Agreement (SOC [9]-[14]) ([NAME_7]' Issues 1, 5) 27I now turn to the substantive issues raised in the proceedings. The first and fifth issues identified by [NAME_112] involve alternative characterisations of the rights acquired by [NAME_102] under the 2002 Agreement and raise substantially overlapping issues. [NAME_112] relevantly plead: "10. Pursuant to the terms of the [2002 Agreement] [[NAME_115]] assigned to [[NAME_102]] an interest in copyright in the [NAME_101] Application including updates to [NAME_101] Application.

11. In the premises, [[NAME_102]] is an owner of an interest in copyright in the [NAME_101] Application and updates to the [NAME_101] application to non-exclusively use and sub-license the use of the [NAME_101] application in the development and use of [[NAME_137]] steel frame manufacturing system." [NAME_112]' primary contention is that, under the 2002 Agreement, [NAME_102] purchased a non-exclusive interest in the copyright in [NAME_101], which does not limit [NAME_115]' ownership or ability to use and sell [NAME_101]. [NAME_112] contend that the 2002 Agreement is ongoing and was not open to unilateral termination, so far as it was a purchase agreement and rights vested in [NAME_102] without time limitation. 28The [NAME_7] alternatively contend that the 2002 Agreement grants [NAME_102] a non-exclusive licence to [NAME_101]. Paragraph 12 of [NAME_112]' Amended Statement of Claim relevantly pleads that: "12. Further, and in the alternative, on or about 28 July 2002 [[NAME_115]] granted [[NAME_102]] a non-exclusive licence in the [NAME_101] Application to use and sub-licence the use of the [NAME_101] Application in [[NAME_137]] steel framing manufacturing system." This pleading is particularised by reference to recitals B and C and clause 2 of the 2002 Agreement. [NAME_112] submit that, if the 2002 Agreement does not assign [NAME_102] a non-exclusive interest in [NAME_101] (and, implicitly, in the copyright constituting that application), then that agreement grants [NAME_102] a non-exclusive licence of the copyright in [NAME_101] and is not a mere right to resell [NAME_101] without any copyright rights. I will address that contention below. 29It is common ground that the 2002 Agreement must be construed objectively. I have had regard to well-established principles as to the manner in which commercial contracts should be interpreted. In Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109, Gibbs J (as his Honour then was) observed that: "It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust." Attention must be given to the language used by the parties and the commercial circumstances that the document addresses and the objects that it is intended to secure: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 at 589 [22] (per Gleeson CJ). In Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [22], the High Court noted that: "The construction of commercial contracts is to be determined by what a reasonable person in the position of [the contracting party] would have understood them to mean (Gissing v Gissing [1971] AC 886 at 906; Christopher Hill Ltd v Ashington Piggeries Ltd [1972] AC 441 at 502; ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540). That requires consideration, not only of the text of the documents, but also the surrounding circumstances known to the parties, and the purpose and object of the transaction (Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896; [1998] 1 All ER 98.) [COMPANY_138] v State Rail Authority of NSW ((1982) 149 CLR 337 at 350. See further Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436 at 445 [39]; 186 ALR 289 at 301) ..." 30The [NAME_7] refer, uncontroversially, to the statement of the relevant principles in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40], where the High Court observed (citations omitted): "It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction." The approach was confirmed in [NAME_30] (t/as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; 306 ALR 25 at [35] where French CJ, Hayne, Crennan and Kiefel JJ observed that (citations omitted): "[T]his Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. [NAME_112] also point out that the Court must construe the words of the 2002 Agreement in the context of the surrounding circumstances and point to the Court of Appeal's decision in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184, where Leeming JA (with whom Ward and Emmett JJA agreed) observed (at [71]) that the mandatory words "will require consideration" in the passage from [NAME_30] above that I have quoted above require that the surrounding circumstances be considered to construe the meaning of the words of a contract in context. That view was in turn approved by the [ADDRESS] of the Federal Court in Stratton Finance Pty Ltd v Webb [2014] FACFC 110 at [40]. The relevant principles were summarised by Bergin CJ in Eq in [COMPANY_22] t/as Greenhill Capital Partners v Aztec Resources Ltd [2014] NSWCA 123 at [70] (with whom Barrett JA agreed at [1]) as including, relevantly, that the meaning of words in a contract are to be determined objectively, with attention to be given to the language of the contract, the commercial circumstances the contract addresses, the purpose of the transaction and the objects intended to be secured by it. 31I also understand it to be common ground between the parties that the Court can have regard to the recitals to the 2002 Agreement as an aid to construction of the operative provisions of that agreement. [NAME_112] point out that the recitals are a means by which the surrounding circumstances and purpose of the transaction can be ascertained: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 at [380] per Campbell JA. They also refer to Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27; (2013) 85 NSWLR 1 at [63] where [NAME_58] P (as his Honour then was) observed that: "The recitals to the agreement set out those aspects of the background that give explanation to the transaction. There may be other background facts, but the recitals reveal the background chosen by the parties by way of the identification of relevant context. The recitals can assist in interpretation of operative provisions, though they do not control the latter's operation when clear and unambiguous..." 32I should first address the events leading to the execution of the 2002 Agreement. [NAME_104] met [NAME_115] in about April 2002 and expressed interest in [NAME_101]. [NAME_104] was then conducting business through [NAME_102] and he and his wife were its sole directors and shareholders (Ex D9, Tab 10). [NAME_104]'s evidence is that he came to know [NAME_115], as the programmer of design software known as [NAME_101], when he was seeking to develop a new CAD package for a project on behalf of a customer, [NAME_135]. [NAME_104]'s evidence is that he purchased a single user licence for [NAME_101] on 22 April 2002 ([NAME_89] 26.10.12 [14]). 33Mr [NAME_5] gives evidence of a conversation in early 2002 in which [NAME_104] requested him to give a demonstration of [NAME_101] to [NAME_135] and that, in late April 2002 or early May 2002, he attended [NAME_135]'s site with [NAME_104] to give a demonstration of [NAME_101] ([NAME_5] 4.12.12 [55]-[56]). [NAME_104] denies the conversation, or at least denies saying that [NAME_135] wanted to use [NAME_101] ([NAME_89] 28.1.13[11]). It is clear that [NAME_135] did wish to use [NAME_101], at least as a necessary part of the system to be supplied to it by [NAME_102], and it seems to me likely that there would have been discussion of that matter so far as [NAME_115] was being asked to demonstrate the product to [NAME_135]. Many of the disputed conversations as to this matter were ultimately not in issue, because the relevant paragraphs of [NAME_115]' affidavit related to the parties' intentions in respect of entry into the relevant contracts and were not read. 34Mr [NAME_89] in turn refers, in his evidence in reply ([NAME_89] 28.1.13 [12]), to a meeting with [NAME_115] in April 2002 where a discussion took place as follows: "[NAME_89]: I am happy to pay to develop the software ([NAME_101]) so that I can use it in our System [sic] but I need to own it. It's not fair that I should pay for the development so that others can benefit. [NAME_5]: As long as it's not exclusive, I don't mind. I won't sell exclusively, not unless we are talking about a lot of money. [NAME_89]: It's fair that the things we are working on now, and paying for, are owned exclusively by me. [NAME_5]: If you pay for it, you can have it, but that doesn't give you an exclusive right to the whole software package, just what you pay for. [NAME_89]: OK, then we'll just separate that in the Agreement. [NAME_5]: OK." This conversation seems to me to go to the parties' subjective intentions in entering the 2002 Agreement and it concludes with a reference to the fact that what was discussed would be reflected in the agreement. It seems to me to be of little utility, because it involved each party asserting its competing commercial objective, namely, [NAME_104]'s objective to own what he paid for development of and [NAME_115]' unwillingness to sell the software package. The concept of "ownership" on a non-exclusive basis also has its own difficulties. 35Mr [NAME_89]'s evidence ([NAME_89] 26.10.12 [20]) is that he handed the 2002 Agreement to [NAME_115] on 28 July 2002 at [NAME_115]' home office; [NAME_115] then read through the agreement; [NAME_115] then signed the agreement in the presence of his wife and [NAME_104] also signed it. [NAME_115] did not have legal advice in respect of the entry into the agreement. [NAME_104]'s evidence is that, on 13 August 2002, [NAME_115] handed him a white labelled compact disk with the title "[NAME_100] for [NAME_128] and [NAME_135]" and a copy of the disc and its label is in evidence ([NAME_89] 26.10.12 [22]). [NAME_104]'s evidence is that a discussion followed as to the provision of source code, in which [NAME_115] pointed out that any source code would be out of date with each new upgrade; [NAME_104] suggested that he could be given updated source code every year or so; and [NAME_115] responded in a manner that seems to me to have left open the question of any provision of future source code ([NAME_89] 26.10.12 [23]). The relevant discussion was not, in any event, in a form that either involved an admission as to the terms of the 2002 Agreement or any separate contractual obligation. 36I will refer to the parties' submissions, before turning to a more detailed review of the terms of the 2002 Agreement. It is difficult to summarise those submissions in any simple way, because each submission was complex, and the issues became more complex as the parties often responded to the other party's submission by developing increasingly elaborate reformulations and variations of their respective submissions. The result was that the parties' submissions as to this issue had many individual points, both affirmatively and by way of rebuttal, but rather less by way of overall structure. [NAME_112] submit that several textual indicators in the 2002 Agreement indicate that it amounted to an assignment of property in [NAME_101] (and, by extension, the copyright in [NAME_101]) to [NAME_102] rather than a licence. First, they point out that cl 2 of the 2002 Agreement uses "transfer", which they submit is a word of assignment. Second, they point out that cl 2 is headed "SALE" and there is no provision in the contract that prevents the Court from using the heading to construe the agreement. Third, they point out that [NAME_115] is described as "The Vendor" in the description of the parties. Fourth, they point out that the recitals to the 2002 Agreement use the words "acquiring interest" (in Recital B), "sale of an interest" (in Recital C) and "sells, assign and transfer ... right title and interest" (in Recital D) which they submit are also words of assignment. They also submit that the use of the word "interest" in the 2002 Agreement confirms that the agreement brings about an assignment rather than a licence, since a licence is a personal right and does not involve a proprietary interest: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605. I do not consider that the matters to which [NAME_112] refer lead to the inference which they seek to draw from them, since the 2002 Agreement was on any view at least the sale of property, namely, the compact disc containing the software, and the language of the agreement (including the characterisation of the transaction as a sale of "The Goods" to which I will refer below) is consistent with that matter. 37The [NAME_7] also contend that the other operative terms of the 2002 Agreement support a construction of it as an assignment of copyright, so far as [NAME_102] is given rights that are not generally given to a mere non-exclusive licensee of copyright such as a right to modify (in cl 5), which they contend is an incident of copyright under s 31(1)(a)(vi) of the Copyright Act, and a right to receive source code (in cl 6). I will address those clauses below. [NAME_112] also point out that the 2002 Agreement expressly provides that the agreement does not prevent [NAME_115] from selling, assigning, transferring or licensing the [NAME_101] Application (Recital C) and contend that this would not be necessary if [NAME_115] had merely granted [NAME_102] a non-exclusive licence, because [NAME_102] as a non-exclusive licensee would have no expectation of restricting [NAME_115]' use of the software. I do not accept this submission. Even if an [NAME_9] lawyer might (or might not) have treated that matter as implicit in other aspects of the agreement, there would be no reason for the parties not to make that important matter clear even if the agreement was no more than a non-exclusive licence of the copyright or, as the [NAME_6] submit, a right to sell physical copies of [NAME_101] only. 38The [NAME_7] also submit that the 2002 Agreement is an assignment of copyright in [NAME_101] even if [NAME_101] includes future copyright [NAME_10]. They do not admit that all updates and new releases of [NAME_101] constituted new copyright [NAME_10], and I will address that issue below. However, they submit that, to the extent that updates and new releases constituted new copyright [NAME_10], the assignment of a proprietary interest in [NAME_101] under the 2002 Agreement covered those [NAME_10], because [NAME_115] is able to assign future copyright in future [NAME_10] under s 197 of the Copyright Act, provided that he would be the owner of the copyright on it coming into existence. This issue does not arise since, for the reasons set out below, I do not consider that the 2002 Agreement amounts to an assignment of the copyright in [NAME_101] to [NAME_102]. 39The [NAME_6] submit, in their opening written submissions, that the licence granted to [NAME_103] under the 2002 Agreement is a revocable licence of the kind identified in [NAME_139] v [COMPANY_140] above and was subsequently revoked. They submit that a "non-exclusive interest in copyright" is not recognised under the Copyright Act. [NAME_112] in turn respond that the Copyright Act permits copyright to be assigned "in any way" under s 196(2) of the Copyright Act and recognises that a person may have an interest in copyright rather than own the whole of the copyright under s 196(4) of the Copyright Act. [NAME_112] also respond that [NAME_137] interest under the 2002 Agreement is not revocable because, if it did not acquire a proprietary interest in [NAME_101], that licence was coupled with a proprietary interest that is also not revocable: [NAME_139] v [COMPANY_142] above. 40The [NAME_6] submit, additionally or alternatively, that the 2002 Agreement is no more than a right to distribute, market or sell the software in the nature of distribution rights, although they accept that the agreement conferred on [NAME_102] either an implied licence to do whatever acts comprised in the copyright in [NAME_101] that were necessary for use by the customer of [NAME_102] or an express non-exclusive licence for [NAME_102] or its customer to do acts that were incidental to the use of the software. They submit that: "The 2002 Agreement is analogous to the sale of a Microsoft Office Software package. The purchaser gets title to the disks embodying the software. This is non-exclusive in that Microsoft can sell other disks embodying the software to other people, and a non-exclusive licence to use the software." The [NAME_6] also submit, in oral submission, that the 2002 Agreement does not amount to a licence and involves a non-exclusive sale of an interest in physical goods and an implied licence to use the particular physical copy (T32). It does not seem to me that the terms of the agreement support so limited a reading of it which would, in particular, be inconsistent with the provisions dealing with modification and the provision of the source code for the software to which I have referred above. 41The [NAME_6] in turn contend that the 2002 Agreement does not contain a clear grant of a right to reproduce the software or to do any other act comprised in the copyright for the purposes of s 31 of the Copyright Act and should be construed as granting no more than a right to distribute, market or sell the software, in the nature of distribution rights. They contend that there is a significant distinction between copyright and the property in the physical thing in which the copyright is embodied. They point out that copyright is an exclusive right as contemplated by ss 13, 26, 35, 115, 196 and 197 of the Copyright Act and that copyright is a species of personal property distinct from the property in goods that embody or reproduce the work or other subject-matter: [NAME_35] v Commissioner of Taxation [1970] HCA 36; (1970) 121 CLR 154 at 165-170 per Windeyer J. They contend that a right to sell or distribute [NAME_101] is in the nature of a distribution right, and that it is not a right to do an act comprised in the copyright: Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58; (1990) 171 CLR 88 at 93-94 per Mason CJ, Deane and Gaudron JJ; 103 per Dawson J; and 116 per McHugh J. They submit that there is no right given under the 2002 Agreement to do any act comprised in the copyright, other than the implied right to do whatever acts comprised in the copyright were necessary to use the software. The [NAME_6] also submit that the use of words such as "transfer of an interest" in the 2002 Agreement are not determinative and must be read together with the words "non-exclusive" in the context of the agreement as a whole. They also rely on [NAME_115]' evidence in cross-examination that it was not his intention to do anything other than grant a right to on-sell; however, evidence of subjective intention of this character is not admissible as to a question of contractual construction. 42The [NAME_7] respond that a reading of the 2002 Agreement as limited to a non-exclusive sale of an interest in physical goods and an implied licence to use the particular physical copy is not open on the pleadings, since the [NAME_6] admitted that [NAME_115] had granted a non-exclusive licence to [NAME_102] to use [NAME_101] in the development and application of steel construction frame manufacturing systems when it was developed, in its version as it then existed (Defence [10(b)]). That paragraph reads as follows: "10 In response to the paragraph 10 of the Amended Statement of Claim, the [NAME_6]: b admit that [[NAME_115]] granted a non-exclusive licence to [[NAME_102]] to use the 28 July 2002 Version for [[NAME_137]] use in the development and application of steel construction frame manufacturing systems when it was developed, but that at the time of the [2002] Agreement, no such system existed." The [NAME_6]' [NAME_117] also pleads that the purpose of the 2002 Agreement was to grant a non-exclusive licence in a steel frame manufacturing system when it was developed, limited to the then version of that software (Cross Claim [20(ii)(b)]). The [NAME_6] did not seek leave to withdraw the admission involved in those pleadings and it does not seem to me open to them to advance the more limited position in submissions. In the event, the position taken in the Defence is consistent with the findings that I reach below as a matter of construction of the 2002 Agreement. 43The [NAME_7] also respond that, if the 2002 Agreement was only intended to sell the physical property in the compact disc comprising the software, the sale of the software could have been recorded in a one page invoice. While I accept that proposition, so far as it goes, it is of course possible that [NAME_102] and [NAME_104] (who proffered the relevant agreement) drafted a more complex document than was necessary. [NAME_115] was not legally represented in the transaction, and it would not be surprising that he would not then have realised that that document was unnecessarily complex, although he later took a position of that kind in declining to enter a separate agreement in respect of each acquisition of software for clients of [NAME_102]. 44The [NAME_7] point to surrounding circumstances in respect of the 2002 Agreement including that the subject of the 2002 Agreement is intangible property and that [NAME_115] is a software developer and not a manufacturer of physical items. They point out that [NAME_115] gave [NAME_102] one compact disc containing the [NAME_118] ([NAME_89] 26.10.12, Ex P7, 3/55) and also emailed [NAME_102] an electronic copy of the software ([NAME_89] 26.10.12, Ex P7, 3/34). They contend that the only way that [NAME_102] can "use" [NAME_101] in the "application of steel construction frame manufacturing systems", as contemplated by Recital B of the 2002 Agreement, is if it can reproduce the electronic copy that [NAME_115] emailed to [NAME_102]. They also submit that, even if the 2002 Agreement was limited to a project with [NAME_135], which was its immediate context, there were at least two [NAME_135] sites ([NAME_5] 4.12.12 [70]). [NAME_115] in turn accepted in cross-examination that [NAME_102] could only on-sell [NAME_101] if he supplied further disks, and accepted that there was no arrangement or agreement to do so and that would be addressed by a "personal understanding" (T278). [NAME_112] also submit that [NAME_137] customers' use of [NAME_101] would necessarily involve the customer exercising copyright, since the software will necessarily involve a reproduction in material form on the customer's computer RAM. They point to an exception for temporary incidental reproduction made as a necessary part of the technical process of using a work, but that this only applies if the reproduction is made from a non-infringing copy, and submit that [NAME_102] must be in a position to provide its customer with a non-infringing copy of the software under s 43B of the Copyright Act. 45The [NAME_7] in turn seek to distinguish [COMPANY_143] v [NAME_144] above, on which the [NAME_6] rely as I noted above, as involving a distribution agreement for manufactured physical items, and contend that the subject of the 2002 Agreement is "the rights to" the software package, not the software package itself. [NAME_112] also point out that the distribution agreement in issue in [COMPANY_143] v [NAME_144] above referred to the rights "of distribution" (which is not one of a copyright owner's exclusive rights under s 31 of the Copyright Act) and did not expressly include any other rights, whereas the 2002 Agreement refers to the right to modify which is, as I noted above, a right of a copyright owner under s 31(a)(vi) of the Copyright Act. [NAME_112] contend that a construction of the 2002 Agreement as relating to a sale of a physical item is inconsistent with cl 5 of that agreement which grants [NAME_102] the right to modify the software. 46The submissions to which I have referred above are, as this summary of them indicates, complex and sophisticated, although somewhat fragmented. Notwithstanding the sophistication of those arguments and the extent to which both parties have drawn on principles of [NAME_9] law - which were plainly not part of the surrounding circumstances known to both parties, where at least [NAME_115] was not legally represented in respect of the entry into the 2002 Agreement - it seems to me that the nature of the rights conferred by that agreement are to be determined primarily as a matter of the construction of its terms, to which I now turn. 47Recital A of the 2002 Agreement recorded that [NAME_115] was the developer and had copyright and proprietorship of "The Goods". That term was defined in cl 1.1 as: "A right to the Software Package referred to as [NAME_99] and includes Quik Roof, Quick [sic] Truss, Quik Frame and Quik Floor and also includes the Know How, methodology and trade secrets necessary for the implementation of "The Goods"." The focus in this definition is not on the [NAME_9] comprised in the software, but on the right to (implicitly, use) the software package, and that focus is emphasised by the reference to the "implementation" of "The Goods" at the end of the definition. Clause 1.2 in turn defines the term "The Material" which includes manuals and source codes. 48Recitals B and C in turn provide that: "B. [[NAME_102]] is desirous of acquiring an interest in "The Goods" for it's [sic] use in the development and application of steel construction frame manufacturing systems. C. This agreement is for the non-exclusive sale of an interest to "The Goods" to [[NAME_102]] and does not prevent [[NAME_145]] from selling, assigning, transferring or licensing "The Goods"." Essential incidents of ownership of the software are expressly reserved by Recital C to [NAME_115], including the right to sell it or assign it to another person. Recital D in turn recites that [NAME_115] "sells, assigns and transfers" a "non-exclusive right, title and interest" to "The Goods" to [NAME_102] for the consideration of $25,000. That is, of course, not an operative provision and cannot expand the transaction contemplated by the operative provisions on their proper construction, although it is relevant to the construction of those provisions. Recital E refers to an amount of the consideration attributable to development of the software for [NAME_102], which is dealt with in cl 4 of the 2002 Agreement. [NAME_115] subsequently invoiced [NAME_102] for that work. 49Clause 2 of the 2002 Agreement provides for [NAME_115] to "transfer" to [NAME_102] an interest in and right to "The Goods", as defined. Clauses 3 and 4 provide for [NAME_102] to pay the purchase price by a deposit of $7,500, a further amount of $15,000 on completion of additional development, and $7,500 on "installation/delivery of "The Goods'", as "full and final payment" for "The Goods". I interpolate that this clause suggests that the substance of the transaction was a sale of "The Goods" at a point in time, which would be completed on delivery of "The Goods" in this manner and payment of the balance due, and that provision casts light on [NAME_115]' obligations as set out in cl 6 to which I will refer below. 50Clause 5 of the 2002 Agreement dealt with further obligations by [NAME_102] and provides that: "[[NAME_102]] will consult and will give first option to [[NAME_145]] for any application, adaptation or modification of "The Goods", provided such consultation is supplied by [[NAME_145]] at standard and reasonable commercial rates. Any costs incurred for any application, modification of "The Goods" as instigated by [[NAME_102]] will be at the expense of [[NAME_102]]." The effect of the clause was that [NAME_115] had the first option for development work. It is implicit in that provision that the parties contemplated that a third party could undertake such applications, adaptations or modifications on [NAME_137] behalf if [NAME_115] did not take up that option. [NAME_102] had an implied licence to undertake development work in respect of the software, it would be exposed to the risk that [NAME_115] might not choose to provide those services, and it would not be able to further develop "The Goods" beyond applications, adaptations or modifications which could occur without infringement of [NAME_115]' copyright. 51Clause 6 of the 2002 Agreement in turn provides that: "Subject to Section 5, Instruction Manuals and staff training as required to establish an operational Software system as being used by an operator at any location required. All relevant "Materials" pertaining to the design and development of "The Goods", including functional specifications and source codes. The term "The Materials" used in this clause is in turn defined as "all books, manuals, specifications, programming source codes, instructions whether in a written or digitised form relating to "The Goods"". 52Clause 6 of the 2002 Agreement is plainly not well drafted, but appears to assume that there is an obligation by [NAME_115] to deliver or provide these materials. [NAME_112] rely on this clause as imposing a continuing obligation on [NAME_115]. Any continuing obligation in respect of instruction manuals and staff training is expressly subject to cl 5 of the 2002 Agreement, which provides for the first option to [NAME_145] for the specified matters, and contemplates that they may be supplied at standard and reasonable commercial rates. So far as cl 5 of the 2002 Agreement is expressly framed as an option to [NAME_145] to supply the services, it does not seem to me that an obligation to do so can exist. I also do not read the second paragraph of cl 6 as imposing a continuing obligation. The "Materials" referred to are those that relate to the design and development of "The Goods" including functional specifications and source codes. It seems to me that the term "The Goods" refers to the software package that existed at the time of the 2002 Agreement, since there is nothing in the terms of the agreement that gives it an ambulatory operation in time, and the relevant "Materials" are therefore those which relate to the design and development of "The Goods" at the relevant time. The third paragraph of cl 6 in turn refers to complete and updated set-up disks as required to load "the latest, complete and operational version" of "The Goods". I similarly read that sentence as applying at the time of the relevant supply, so as to require at that time that the disks be complete and updated, and contain the latest, complete and an operational version of "The Goods". The concept of the supply of goods in turn seems to me to be consistent with a transaction that takes place at a point in time, at which property in "The Goods" is handed over. It seems to that that paragraph, read in that way, makes commercial sense, so far as it is read as ensuring that the version of "The Goods" acquired by [NAME_102] was both "complete" and "updated", in the sense of being up-to-date, at the time "The Goods" were acquired. In my view, clearer language would have been required to impose a further updating obligation continuing indefinitely after the supply of "The Goods" was completed, than is contained in that clause. 53Another significant contemporaneous indicator of the nature of the relevant transaction is the fact that the compact disk by which [NAME_115] supplied the relevant source code to [NAME_102] asserted copyright in [NAME_101] and that "all rights [were] reserved" by [NAME_115] and did not recognise any interest of [NAME_102] in the copyright, and [NAME_102] did not then assert such an interest or protest [NAME_115]' assertion of the ownership of the copyright which it now claims it had just bought. The absence of such an assertion seems to me to be relevant as part of the surrounding circumstances in respect of the 2002 Agreement and as an admission by [NAME_102]. 54It does not seem to me that the 2002 Agreement amounted to a sale of an interest in the copyright in [NAME_101], where there is no focus upon the [NAME_9] in the terms of the 2002 Agreement and the commercial purpose of the transaction could be effected, consistent with the terms of that agreement, by the sale of the compact disc holding the software and the conferral of a right to use that software upon [NAME_102]. The transaction seems to me to have been, in substance, a sale of software together with a non-exclusive licence to use that software and, under cl 5 of the 2002 Agreement, to undertake permitted applications, adaptations and modifications of that software. 55I reach that conclusion based upon the terms of the 2002 Agreement and the contemporaneous circumstances and without reference to subsequent events. However, that the recitals of fact in, and terms of, subsequent agreements formed by the parties, which seem to me to be admissible so far as they give rise to admissions of fact against [NAME_102] and [NAME_104], support that reading of the 2002 Agreement. It is well-recognised, of course, that post-contractual statements or conduct are not generally admissible to aid in the construction of a written contract: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 at [35] per Gummow, Hayne and Kieffel JJ; Johnson v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 at [120] per Basten JA. However, post-contractual conduct may be admissible as an admission by one party as to the terms of a contract: [NAME_146] v [COMPANY_147] above at [84] per Beazley P. Basten JA (with whom Gleeson JA agreed at [134]) also there observed at [121] that: "... where [subsequent conduct] provides evidence of facts, the assertion of which is against the interests of one party, it may be admissible as an admission by that party. However, to the extent that the evidence reveals an opinion as to a question of law rather than fact, the admission may be irrelevant or valueless. ... Alternatively, the evidence may establish contextual facts in existence at the time the contract was executed." I am conscious that [NAME_112] submit that copyright ownership is a matter of law and an admission as to that matter is not admissible as a matter of contractual construction ([NAME_150] v [NAME_149] above at [80], [81] per Beazley P) or would have little weight ([NAME_150] v [NAME_149] above at [121] per Basten JA (with whom Gleeson JA agreed)). However, the identification of what was sold by the 2002 Agreement does not seem to involve the application of a legal standard so as to fall within that principle or to be primarily or substantially a matter to be determined by the application of copyright law. It also seems to me that, where [NAME_102] and [NAME_103] were both under [NAME_104]'s day-to-day control, I can also properly treat the position taken by [NAME_103] (under [NAME_104]'s management and control) as also indicating [NAME_137] position (under [NAME_104]'s management and control), at least in respect of these matters where there was no conflict in their respective interests. To put it another way, it is inconceivable that [NAME_103], by [NAME_104], would conduct itself on the basis that [NAME_115] had exclusive ownership of the copyright in [NAME_101] unless [NAME_102], by [NAME_104], was also conducting itself on that basis. 56As I noted above, the [NAME_126] Agreement (Ex P7, 3/143-158) was signed between [NAME_115] (trading as [NAME_145]), [NAME_121] and [NAME_103]. Recital A provided that [NAME_115] "is the developer and has copyright and proprietorship of [NAME_99]". It seems to me that this recital is binding upon [NAME_103] as an admission as to that matter, and is inconsistent with any suggestion that [NAME_102] then had any ownership interest, non-exclusive or otherwise, in the copyright in [NAME_101]. Recital C of the [NAME_126] Agreement in turn provided that [NAME_102]: "has a non-exclusive right to the software package referred to as [NAME_128] as referred to in "The Product" to be used in "The Project." That statement of a "non-exclusive right" is not an assertion of an ownership interest analogous to copyright in the software package. "The Product" is in turn defined as a "software program referred to as [NAME_128]" and as including other "[NAME_100]" of which examples are given. "The Project" is defined as a request by [NAME_126] to [NAME_103] to develop, design, build and implement certain matters associated with a facility to manufacture steel wall panels and roof trusses. Recital E in turn provides that all payment for "The Product" is to be made to [NAME_115] and, in consideration of the payment by [NAME_103] to [NAME_115] of a specified sum, [NAME_115] and [NAME_121] will supply "The Product". It would be surprising, to say the least, if [NAME_103] were to choose to purchase from [NAME_115] a product that [NAME_102] owned and, on the case it now advances, was free to sub-license to [NAME_103] on whatever terms it chose, without further payment to [NAME_115]. 57Clause 5(a) of the [NAME_126] Agreement in turn provides that [NAME_115] will provide one site licence for the use of any [NAME_101] used to deliver the package known as [NAME_128]. Clause 5(b) provides that [NAME_103] will sub-license any software provided by [NAME_115], and packaged with [NAME_128], only to [NAME_126]. Clause 5(c) provides that: "All software used in the project will be referred to as [NAME_128], for simplicity, although it is agreed by all parties that parts of the total software package, in particular, the [NAME_100] Analysis Function used in the project is the property of [[NAME_115]], and is subject to all licensing requirements as specified by [[NAME_115]]." It also seems to me that this clause, contained in an agreement signed by [NAME_104] on behalf of [NAME_103], is inconsistent with any assertion of an ownership interest in the copyright in [NAME_101] or in [NAME_101] as a software package by [NAME_102]. Clauses 5(d) and 5(e) in turn contemplate the issue of additional licences for the software package by [NAME_115] to [NAME_103]. That approach also seems to be inconsistent with [NAME_102] then having an ownership of the copyright in [NAME_101] or an interest in the software package, which would have supported it sub-licensing the software package to [NAME_103] without the need for [NAME_115]' involvement, as it claimed in later did in dealings with [NAME_110]. Clause 7 of the [NAME_126] Agreement deals with adaptations or modifications of "The Product", in similar form to the 2002 Agreement. The fact that such a provision is contained in the [NAME_126] Agreement, which does not involve the sale of any interest in the software as distinct from a licence to use it, is consistent with the reading that I have given to the similar clause in respect of the 2002 Agreement. 58As I also noted above, on 25 February 2004, [NAME_127] granted [NAME_103] an exclusive licence, inter alia, to "use and exploit" [NAME_101] for the territory of Australia under the Exclusivity Agreement ([NAME_89] 26.10.12 [41], Ex P7, 3/185-199; Ex P2, 62). The Exclusivity Agreement was executed in the context of discussions between [NAME_103] and [NAME_126] to provide it with exclusivity, which ended about July 2004. [NAME_104] entered into those discussions in January 2004 relating to an exclusive arrangement for "the products under contract with [[NAME_103]]" ([NAME_89] 26.10.12 [39]). The reference to the "products" is presumably a reference to the suite of products used to manufacture the relevant steel products, and [NAME_101] was plainly within the scope of the discussion. 59The [NAME_6] accept, in substance, that the Exclusivity Agreement conferred a licence of the copyright in [NAME_101] on [NAME_103]. That Agreement recited, in Recital A, that [NAME_80] and [NAME_115] were the developer and had copyright and proprietorship of "The Licensed Goods". That recital is binding on [NAME_103], so far as it was party to the Exclusivity Agreement, and [NAME_104] also attested the affixation of [NAME_103]'s common seal to that agreement. Recital D records the agreement of the parties that the licence replaced any other agreement to use "The Licensed Goods" within the Territory. Recital E records [NAME_103]'s desire to license others to use "The Licensed Goods" and Recital F records that [NAME_80] and [NAME_115] grant an exclusive licence for "The Licensed Goods" to [NAME_103]. The term "The Licensed Goods" is defined as: "A right to the Software package referred to as [NAME_99] and includes Quik Roof, Quik Truss, Quik Frame and Quik Floor and any adapations [sic] of those packages and also includes the Know How, methodology and trade secrets necessary for the implementation of "The Licensed Goods"." 60By cl 2.1 of the Exclusivity Agreement, [NAME_80] granted [NAME_103] an exclusive licence to use and exploit "The Licensed Goods" for the Term in the Territory. By cl 7.1(e), [NAME_80] and [NAME_115] represented and warranted to [NAME_103] that [NAME_80] "is the assignee and the beneficial owner of The Licensed Goods". That warranty is also inconsistent with any suggestion that [NAME_102] was the owner of [NAME_101], whether on a non-exclusive basis or otherwise, and there is no suggestion that [NAME_103] or [NAME_104] then took any objection to the accuracy of the warranty. Clause 14.4(a) in turn states that the Exclusivity Agreement replaces any previous understanding or agreement relating to the subject matter. I do not read that clause, in itself, as capable of excluding the operation of any previous agreement between different parties, relevantly, [NAME_115] and [NAME_102]. 61Mr [NAME_5] gives evidence of a further conversation in late 2004 or early 2005 in words to the following effect: "[NAME_89]: The deal with [NAME_126]'s fallen through. They don't need an exclusive licence any more. What do you want to do about the Exclusivity Agreement? [NAME_5]: Let's just call it quits. [NAME_89]: OK. I'll get Michael [[NAME_96], [NAME_104]'s solicitor] to prepare something." ([NAME_5] 4.12.12 [104]) [NAME_104] denies that conversation and asserts that the move from an exclusive to a non-exclusive software licence was settled at the time the 2004 Agreement was signed in August 2004. A termination notice in respect of the Exclusivity Agreement was in fact signed in February 2005 ([NAME_89] 26.10.12 [49], Ex P7, 3/232) with effect from 31 March 2005. 62A Development Agreement between [NAME_103] and [NAME_80] in respect of a customer of [NAME_103], [NAME_151] (Ex P7, 3/233), also provides at cll 7.1 and 7.2: "7.1 Ownership of Source Software: [[NAME_103]] acknowledges that [[NAME_80]] is the owner of the Source Software together with all [NAME_9] in and to the Source Software (including all source and object code). 7.2 New Software: Exclusive Ownership of the New Software and all [NAME_9] in and to the New Software (including all source and object code) shall be and remain vested in [[NAME_80]]." That acknowledgement similarly binds [NAME_103] and is again inconsistent with [NAME_102] then owning [NAME_101] or the copyright in it by reason of the 2002 Agreement. A statement that [NAME_80] owned [NAME_101] and the [NAME_9] rights in the source software and source code would be radically incomplete if (as [NAME_112] now contend) each of [NAME_80] and [NAME_102] had corresponding, albeit non-exclusive, ownership interests in [NAME_101], the software and the copyright in [NAME_101]. 63For these reasons, I do not consider that the 2002 Agreement amounted to an assignment of the copyright in [NAME_101] to [NAME_102] or conferred an ownership interest in [NAME_101] on [NAME_102], and it amounted to the sale of a non-exclusive licence to use software in a particular form and additional services to which I will refer below. Whether any ownership interest in QRC was limited by particular matters ([NAME_7]' issues 2-4) 64The second, third and fourth issues identified by [NAME_112] are, if [NAME_102] bought an "ownership" interest in [NAME_101] under the 2002 Agreement, whether that ownership interest was limited to [NAME_101] as at 28 July 2002 (Defence [14(b)]); if [NAME_102] purchased an ownership interest in [NAME_101] that was not limited to [NAME_101] as at 28 July 2002, whether, after [NAME_80] was incorporated and from 4 February 2004, [NAME_115] did not own any work in updates to [NAME_101], so the 2002 Agreement only included updates until 4 February 2004 ([NAME_117] [8], [10]); and whether, if [NAME_102] had an ownership interest in [NAME_101] including all updates, any event has brought the ownership interest to an end. These issues do not arise since I have held that the 2002 Agreement did not amount to an assignment of the copyright in [NAME_101] to [NAME_102] or confer an ownership interest in [NAME_101] on [NAME_102]. I will address the corresponding issues in respect of the licence arising under the 2002 Agreement below. If [NAME_102] has a non-exclusive licence, is it limited to [NAME_101] as at 28 July 2002? ([NAME_7]' issue 6) 65The [NAME_7] submit that [NAME_137] ownership interest was not limited to [NAME_101] as at 28 July 2002. They point out that the subject of the 2002 Agreement is "The Goods", and rely on the definition of that term as the right to the software package "[NAME_99]". They submit that the phrase "[NAME_99]" is not limited to 28 July 2002 or a version number in the definition of "The Goods", in the operative provisions or in the Recitals to the 2002 Agreement, although the release notes for [NAME_101] confirm that [NAME_115] labelled each new release of [NAME_101] with a version number ([NAME_5] 4.12.12, Ex D6/215-302). 66The [NAME_7] submit that the purpose and object of the 2002 Agreement and the surrounding circumstances do not support the proposition that the rights in [NAME_101] dealt with under the 2002 Agreement are limited to the version existing at 28 July 2002. They point out that the recitals to that agreement provide that [NAME_102] was developing a steel construction framing system (Recital B) and did not have that system when the 2002 Agreement was signed (Defence [10(b)]). They also point out that the recitals to that agreement also contemplated that [NAME_115] would provide training and development services in future (Recital E and cl 6) and that [NAME_115] gave training pursuant to the 2002 Agreement in August and September 2002 ([NAME_5] 4.12.12 [70]). They submit that [NAME_115] would need to use the then current code in the training and the development. That does not seem to me to take matters further since the fact that a party might provide training on an updated version of software, where an agreement contained an express provision as to development services, at a particular point in time does not establish an obligation to do so, still less to do so indefinitely into the future. 67The [NAME_7] submit that the surrounding circumstances are also that [NAME_101] was dynamic software that was regularly developed and updated. They point to [NAME_115]' evidence that from 1990 to 2002, he was spending four to five hours per night, five to six days per week developing [NAME_101] and, between 2002 to November 2011, he was spending between 60 to 80 hours per week developing [NAME_101], which included customising [NAME_101] for certain clients ([NAME_5] 4.12.12 [26]) and that he released more than 500 versions ([NAME_5] 4.12.12 [32]) and release notes (Ex D6/215-302). [NAME_104]'s evidence confirms that [NAME_115] made regular updates, sometimes daily and more than weekly ([NAME_89] 26.10.12 [27], [43] and Ex P7, 3/60). Many of these matters postdate the entry into the 2002 Agreement and are not, in my view, properly admissible in respect of the construction of that agreement where they are not in the nature of admissions as to factual matters. In any event, the fact that software was regularly updated does not provide any support for a proposition that the subject matter of the 2002 Agreement was not the grant of licence to use the software at a point of time, where the evidence is that [NAME_115] also provided updates to other persons to whom he had "sold" [NAME_118] without entering any agreement such as the 2002 Agreement. [NAME_112] also refer to several other subsequent matters that they contend support a view that the 2002 Agreement did not refer to the software at the relevant point of time, including dealings with [NAME_135] in late 2002 and the terms of the later sale of copyright in [NAME_101] to [NAME_116]. Those matters postdate the relevant agreement, are not admissions as to a question of fact and are not admissible as to the construction of that agreement: [NAME_150] v [COMPANY_147] above. 68The [NAME_7] rely on that fact that [NAME_115] provided [NAME_102] with a version of the source code on 13 August 2002 by a compact disc labelled August 2002 ([NAME_89] 26.10.12 [21]-[22], P7, 3/55). They submit that that is not the form of [NAME_101] as at 28 July 2002; point to [NAME_115]' evidence that this was the complete source code for [NAME_101] "as it then existed" ([NAME_5] 4.12.12 [67]); and submit that, during cross-examination, [NAME_115] accepted that he was not able to tell the Court that the compact disc he gave [NAME_104] was exactly the same version that existed as at 28 July 2002 (T280). This also does not seem to me to assist [NAME_112], since it is at least equally consistent with a position that [NAME_104], sensibly, did not object to [NAME_115] providing a (slightly) more up-to-date version of the software source code that was strictly required under the 2002 Agreement, if it was directed to the software existing at the date of the agreement. 69The [NAME_7] also rely on the fact that, by an undated letter on the letterhead of [NAME_99], sent by [NAME_115] on 1 March 2004 (Ex P2 79), [NAME_115] stated as follows: "To whom it may concern: This is to certify that [[NAME_102]] have been given non exclusive rights to on sell Quick Series Software as defined under the "Deed of Agreement" dated 28thth [sic] July 2002. While not explicitly stated in this agreement, [[NAME_102]] has also been granted a non-exclusive right to market [NAME_99] under the [NAME_128] banner." 70Mr [NAME_89]'s evidence is that that facsimile came into existence at his request for marketing purposes ([NAME_89] 26.10.12 [42]). [NAME_115]' evidence was that, after the Exclusivity Agreement was signed, he had a conversation with [NAME_104] who said words to the effect that: "I need a marketing document from you to show overseas clients that I'm allowed to sell [NAME_100]. I'll send you the wording. Can you fax it back to me on your letterhead?" ([NAME_5] 4.12.12 [89]) [NAME_104] denied that conversation ([NAME_89] 28.1.13 [45]). I think it likely that conversation, or at least a conversation substantially to that effect, took place, since [NAME_104] would have needed to provide some explanation to [NAME_115] as to why he was being asked to sign this letter, which [NAME_104] had drafted and which [NAME_115] then copied and pasted onto [NAME_80]'s letterhead ([NAME_5] 4.12.12 [90]). 71That facsimile focuses on marketing rights (described as "rights to on-sell" or as "right to market") as distinct from any rights in the underlying product. [NAME_112] point out that that letter does not limit [NAME_102] to [NAME_101] as at 28 July 2002 (Ex P2 79; [NAME_89] 26.10.12 [42], Ex P7, 3/203). It seems to me that that letter is equally consistent with the position that the 2002 Agreement was treated as conferring a right to sell and use the software as at the relevant date, as updated as provided under that agreement and by releases voluntarily provided by [NAME_115] not only to [NAME_102] but to his clients generally. It also seems to me that that letter provides a slender basis for any inference as to the construction of the 2002 Agreement where [NAME_115]' evidence, which I accept, was that it was drafted by [NAME_104] and that, in effect, he took little notice of it where all it was doing was confirming that [NAME_102] could distribute the relevant product (T274). 72The [NAME_7] also point out that [NAME_115] made updates available, first by email to each user and then from some time in 2003 on his website ([NAME_89] 28.1.13 [26] and Annexure "H"; [NAME_5] 14.10.13 [70]; 4.12.12 [75]). It does not seem to me that this assist [NAME_112]' claim in this regard since [NAME_115] also made such updates available to other users who had not entered such agreements. [NAME_112] also point out that [NAME_115] did not charge for modifications for development work for the [NAME_135] project delivered in November 2002 because he says "I considered it to be part of the delivery of [NAME_101] to [NAME_135]" ([NAME_5] 4.12.12 [74]). That may well have been a fair and constructive approach by [NAME_115] but that fact does not seem to me to amount to an admission that the 2002 Agreement was not limited to the then version of the software, subject to the provision of development services in accordance with its terms. 73Next, [NAME_112] point out that [NAME_115] was party to and signed an agreement dated 11 July 2003 relating to the [NAME_126] project, which recited that [NAME_102] had a non-exclusive interest in the software to be used in that project (Recital C, [NAME_89] 26.10.12 [35], Ex P7, 3/143). [NAME_112] submit that it is not reasonable that the parties would be using [NAME_101] as at 28 July 2002 for a project starting in 11 July 2003 even though [NAME_101] had been updated several times since 28 July 2002. [NAME_112] point out that [NAME_115] conceded in cross-examination that he read through the document before signing it, that he would have raised objections if he was not content and was content with the contents of that document when he signed it (T273). So far as that recital recorded that [NAME_102] had a right to use [NAME_101] arising from the 2002 Agreement, that statement would be no less true if the right related to the software as at the date of that agreement and [NAME_102] was dependent on the provision for development services in that agreement and [NAME_115]' practice of continuing to circulate updates of the product to his clients generally. 74It seems to me that the structure of the 2002 Agreement, and particularly the use of the term "The Goods", is consistent with the delivery of property in "The Goods" as they existed at the relevant point in time and does not have ambulatory or future operation indefinitely into the future. It seems to me that the striking absence of any limits to, or controls upon, [NAME_137] conduct under the 2002 Agreement provides compelling evidence that that agreement should not be construed in the manner for which [NAME_102] contends. It seems to me improbable that the parties could have objectively intended that [NAME_115] would grant a licence to use (still less assign the copyright in) all future versions of [NAME_101] extending into the future without any time limitation, so as to allow [NAME_102] to sub-license others (such as [NAME_110]) who could in turn distribute software to others (as [NAME_110] has done), without imposing significant controls on the use of that software. The lack of control on future use of the software is more readily explicable if that agreement is understood as directed to the software as it existed at a point in time and [NAME_115] assumed only a limited contractual obligation to update that software. 75For these reasons, it seems to me that the non-exclusive licence granted to [NAME_102] under the 2002 Agreement is limited to [NAME_101] as at 28 July 2002, although [NAME_127] in fact continued to provide updates beyond that date (as they also did to other clients without such agreements) and [NAME_102] would also acquire a licence to use modifications and developments which it made, or retained [NAME_115] to make, under the terms of the 2002 Agreement. If [NAME_102] has a non-exclusive licence to use [NAME_101] that is not limited to [NAME_101] as at 28 July 2002, does [NAME_115] not own any work in updates to [NAME_101] created after [NAME_80] was incorporated, so the 2002 Agreement only covers updates until 4 February 2005? ([NAME_7]' issue 7) 76This question does not strictly arise, since I have held that the non-exclusive licence to use [NAME_101] arising from the 2002 Agreement is limited to the then current version of [NAME_101]. 77The [NAME_7] submit that [NAME_115] was the owner of copyright in [NAME_101] until he assigned his rights to [NAME_116] on 31 October 2011. They plead that [NAME_80] owned or controlled some copyright (Amended Statement of Claim [5(b)]) and this paragraph does not necessarily concede ownership, as distinct from control, of copyright on the part of [NAME_80]. The [NAME_6] plead (Defence to the Amended Statement of Claim [4(c)]) that [NAME_80] was the owner of copyright in [NAME_101] from 4 February 2004 until [NAME_80] assigned its rights to [NAME_116] on 31 October 2011. [NAME_112] point out that that date is not explained, since [NAME_80] was incorporated on 11 November 2003. 78The [NAME_7] point out that [NAME_115] is the author of [NAME_101] ([NAME_5] 4.12.12 [3]; 14.10.13 [37]). [NAME_115] submits that he incorporated [NAME_80] which owned the assets of his business including copyright until 1 November 2011 ([NAME_5] 14.10.13 [76]). [NAME_112] point out that [NAME_80] can become the owner of the copyright only if there is a written assignment signed by [NAME_115] as the assignor under s 196 of the Copyright Act, or if [NAME_115] made the work in pursuance of the terms of his employment under a contract of service under s 35(6) of the Copyright Act. As [NAME_112] point out, there is no evidence of a written assignment, and no such document was produced in response to a notice to produce any written agreement pursuant to which [NAME_115] assigned his copyright to [NAME_80] (Ex P3). [NAME_112] point out that there is no evidence that [NAME_115] was employed by [NAME_80] under a contract of service, and that the [NAME_6] conceded in their written opening submissions that there is no employment contract between [NAME_80] and [NAME_115] (Defendant's Opening Submissions [33]) and confirmed that position during oral argument about objections. 79The [NAME_6] contend that [NAME_80], either alone or together with [NAME_115], owned the copyright in [NAME_101] as and from the date of incorporation of [NAME_80]. The recitals in the several agreements to which I have referred above support this submission, and seem to me to be admissible as to that matter for the reasons I noted in paragraph 55ff above. The [NAME_6] also contend that [NAME_80] obtained at least an equitable interest in the copyright, so far as the programs were written by [NAME_115] in his capacity as a director of [NAME_80] and for the purposes of its business: Antocks Lairn Ltd v I Bloohn Ltd [1971] FSR 490; [1972] RPC 219; Gram Engineering Pty Ltd v Bluescope Steel Ltd [2013] FCA 508; (2003) 106 IPR 1 at [391]-[407] per Jacobson J. On the other hand, [NAME_112] respond that, in [COMPANY_152] v [COMPANY_153] above, the Court held that a company did not automatically own copyright [NAME_10] created by the managing director of a company, and the company did not there established that it owned the copyright pursuant to a contract of service because it was not established that there was a contract of service between the managing director and the company requiring the managing director to do the work. The [NAME_6] refer to two cases where a work created by a company's director was owned by the company. In Gardex Ltd v Sorata Ltd [1986] RPC 623, Falconer J held that a company owned a design, where a company's managing director was also an employee under a contract of service. No such contract is in evidence in this case. In [NAME_113] v [NAME_154] above at [400]-[403], Jacobson J applied [COMPANY_155] v [COMPANY_156] above in holding that a company was entitled to be registered as the owner of a design, where a director was paid a salary in regular weekly or monthly instalments, although not employed under a written contract of employment. There is no evidence of such an arrangement in this case. [NAME_112] also point out that, whereas a person may be entitled to be registered as the owner of the design if the design is made by a person in the course of the person's employment, under ss 19(2) and (3) Designs Act 1906 (Cth) (applied in [NAME_113] v [NAME_154] above) and s 13(1)(b) of the Designs Act 2003, the Copyright Act requires that the work must be made "in pursuance of the terms of [a person's] employment by another person under a contract of service" under s 35(6) of the Copyright Act. There is no evidence in this case that [NAME_115] was employed under a contract for service. It does not seem to me that [NAME_80] acquired the copyright in [NAME_101] on that basis. 80The [NAME_6] also submit that a director who creates copyright [NAME_10] holds the copyright on trust for company, and there is authority that a copyright owner may own the copyright on trust for others: Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244; 157 ALR 193. I accept that is at least a possibility, since it seems to me that it would a breach of [NAME_115]' equitable duties to [NAME_80] to contend that he had ownership of the copyright to the exclusion of [NAME_80], which might well be met by the imposition of a constructive trust. However, as [NAME_112] point out, that proposition does not divest [NAME_115] of his legal ownership of the copyright. 81At least some later documents executed by [NAME_115] are consistent with his continued ownership of the copyright in [NAME_101], to the exclusion of [NAME_80], including a memorandum of understanding relating to [NAME_101] between [COMPANY_157] (a predecessor to [NAME_116]) and [NAME_115] dated 5 September 2005, well after the date that [NAME_80] was incorporated (Ex P2 154A). The later [NAME_116] Agreement also recites that [NAME_80] and [NAME_115] own the software and the "Vendors" (defined as [NAME_80] and [NAME_115]) transfer the "Assets" that include [NAME_101] ([NAME_116] Agreement cl 2.1) and assign the Vendor IP (as defined) ([NAME_116] Agreement cl 5.1). Compact discs containing [NAME_101] issues by [NAME_115] after [NAME_80]'s incorporation are also consistent with his continued ownership of the copyright in [NAME_101], to the exclusion of [NAME_80], containing copyright notices in the name of [NAME_145] (for example, [NAME_89] 28.1.13 JP4-F, Ex P2 277). 82On balance, it seems to me that the matters to which I have referred above support a finding that [NAME_115] owned the copyright in [NAME_101], to the exclusion of [NAME_80], which was granted a licence for that copyright to the extent that, for example, [NAME_80] entered into licences granting rights in [NAME_101] to their parties. This finding is, however, of no assistance to [NAME_112] in extending their rights under the 2002 Agreement which, as I have held above, were limited to [NAME_101] as at 28 July 2002 and updates and modifications provided to them or made under the terms of that agreement. If [NAME_102] has a non-exclusive licence that includes the right to use [NAME_101], is that non-exclusive licence limited to [NAME_102] licensing [NAME_101] to [NAME_135]? ([NAME_7]' issue 8) 83The [NAME_6] plead that the 2002 Agreement is limited to dealings with [NAME_102] is respect of the [NAME_135] project. [NAME_115]' evidence is that the 2002 Agreement was entered into in respect of a single project for [NAME_135] which wished to purchase a steel framing system comprising roll forming machinery and integrated software ([NAME_5] 4.12.12 [54]). 84It is clear that the 2002 Agreement was entered into in the context of dealings with [NAME_135]. [NAME_115] attended [NAME_135] sites in respect of training in mid-August 2002 ([NAME_5] 4.12.12 [70]) and invoiced [NAME_102] for development and training in respect of [NAME_135] in early September 2002 ([NAME_89] 26.10.12 [25], Ex P7, 3/58; [NAME_89] 28.1.13 Annexure D; [NAME_5] 14.10.13 [67]). A further payment was made by [NAME_102] to [NAME_115] on 13 September 2002 in respect of the purchase price and [NAME_135] development and training ([NAME_89] 26.10.12 [25]). [NAME_115] made further modifications in respect of [NAME_135] in November 2002 ([NAME_5] 4.12.12 [72], Ex P7, 3/131-132). 85I recognise that, following the decisions in [NAME_31] v [NAME_158] above and [COMPANY_159] v [NAME_160] above, ambiguity is not required for the Court to have regard to surrounding circumstances in the construction of the 2002 Agreement. I accept that the context of the entry into the 2002 Agreement and [NAME_115]' subjective intention may have been limited to granting rights in respect of that project on the basis that further agreements would be executed, as they were, in respect of further projects. However, the terms of that agreement do not limit the rights granted to those necessary for [NAME_137] involvement in the [NAME_135] project. It is, however, as I noted above, limited to the grant of such a licence in respect of the then software. 86The [NAME_7] also refer to subsequent conduct, which seems to me to be admissible as to the extent that it involves an admission of fact, under the principles to which I have referred above. It is not necessary to deal with all of the conduct on which [NAME_112] rely in this context. The more significant conduct seems to me to be that, on 11 July 2003, [NAME_115], [NAME_121] and [NAME_103] entered an agreement relating to the [NAME_126] project which recited that [NAME_102] had a non-exclusive right to the software package to be used in a project for [NAME_126] (Recital C, Ex P2, 48; [NAME_89] 26.10.12, Ex P7, 3/146), after the [NAME_135] project had previously been completed on 6 November 2002. [NAME_115] also signed the letter dated 1 March 2004, to which I have referred above, confirming that [NAME_102] has non-exclusive rights to "on-sell" and "market" [NAME_101] under the 2002 Agreement (Ex P2 79; [NAME_89] 26.10.12 [42], Ex P7, 3/203), which was inconsistent with a limitation of those rights to the [NAME_135] project. Documents that [NAME_104] provided to [NAME_115] during this period also dealt with the wider development of a system referred to as the "Hayes Base System" and were not limited to the [NAME_135] project (for example, Ex P2 39; [NAME_89] 26.10.12, Ex P7, 3/132; Ex P2 41, [NAME_89] 26.10.12, Ex P7, 3/134; Ex P2 42, [NAME_89] 26.10.12, Ex P7, 3/135). 87I therefore conclude that [NAME_137] rights under the 2002 Agreement, although limited to [NAME_101] as at 28 July 2002 and updates and modifications provided to them or made under the terms of that Agreement, were not restricted to licensing [NAME_101] to [NAME_135]. If [NAME_102] has a non-exclusive licence that includes a right to use [NAME_101] that is not limited to [NAME_135], has any other event brought that licence to an end? ([NAME_7]' issue 9) 88By paragraph 14(a)(1) of their Defence, the [NAME_6] plead that the 2002 Agreement has come to an end in accordance with that agreement or expired. As [NAME_112] point out, the 2002 Agreement had no express limited term providing for expiry or termination and was not expressly limited to any project that has been completed. The [NAME_6] submit that the 2002 Agreement came to an end by performance on delivery of the relevant disc containing the software. I do not accept that submission, which is inconsistent with the continuing option for [NAME_115] to provide development services under cl 5 of the 2002 Agreement, although I accept that the obligations in respect of the sale of "The Goods" under the 2002 Agreement were discharged by the delivery of the disc containing the software. 89The [NAME_6] also contend that the 2002 Agreement was superseded by the Exclusivity Agreement or the 2004 Agreement, to which I will refer below. Alternatively, the [NAME_6] submit that the 2002 Agreement was revocable and was revoked, including by later agreements entered into by [NAME_104] on behalf of each of [NAME_102] and [NAME_103]. The [NAME_6] submit that each later agreement effectively replaced, and implicitly revoked, any earlier agreement concerning [NAME_101]. 90As I noted above, an agreement entered into in July 2003 between [NAME_103], [NAME_115] and [NAME_121] included, in cl 5, a software licence by [NAME_115] to [NAME_103] which authorised [NAME_103] to grant sub-licences of [NAME_101] ([NAME_89] 26.10.12, Ex P7, 3/143-158). The [NAME_6] contend that, from July 2003, [NAME_103] replaced [NAME_102] as the licensee of [NAME_101] with the right to grant sub-licences. 91Recital B of the Exclusivity Agreement, entered in February 2004, in turn recorded that [NAME_103] wished to obtain an "exclusive Australian territory licence" to exploit the "Licensed Goods", relevantly [NAME_101], and Recital D recorded the parties' agreement that the licence replaced any other agreement to use "The Licensed Goods" in the Territory. By cl 2 of the Exclusivity Agreement, [NAME_127] granted [NAME_103] an exclusive licence to "use and exploit" "The Licensed Goods" ([NAME_89] 26.10.12, Ex P7, 3/185-199; Ex P2, 64-78) in respect of "the Territory", namely Australia. The term "Licensed Goods" is defined in similar terms to "The Goods" in the 2002 Agreement. Clause 14.4 of the Exclusivity Agreement in turn stated that: "any previous understanding [or] agreement ... relating to the subject matter is replaced by this document and has no further effect". As I noted above, it is common ground that exclusivity was sought by [NAME_103] in connection with a project for [NAME_126], when [NAME_104] (on behalf of [NAME_103]) was in discussions to offer exclusivity to [NAME_126]. By about July 2004, [NAME_126] terminated the negotiations for exclusivity and [NAME_104]'s evidence is that [NAME_103] no longer required exclusivity ([NAME_89] 26.10.12 [44]). The [NAME_6] submit that the acquisition of an exclusive licence by [NAME_103] under the Exclusivity Agreement indicates that any licence or interest remaining vested in [NAME_102] had lapsed or been abandoned. 92I have not neglected the fact that [NAME_104] drafted and [NAME_115] signed an acknowledgment for the benefit of overseas customers (Ex P2/79) on the same date as the execution of the Exclusivity Agreement on 25 February 2004. The language of that acknowledgement was directed to [NAME_137] "non exclusive rights to on sell [NAME_99]". It seems to me that document did no more than acknowledge [NAME_137] position as a distributor of [NAME_101]. I have also not neglected the subsequent agreement in relation to the [NAME_126] project (Ex P2 48, [NAME_89] 26.10.12, Ex P7, 3/146). 93Clause 2.5 of the 2004 Agreement (which I will address in detail below) in turn provides that: "The parties agree that this document replaces any current licences and licensing conditions issued with, or in relation, to the Software with the exception of the Exclusivity Agreement." This clause plainly contemplates that the 2004 Agreement and the Exclusivity Agreement were the totality of the agreements governing the software, so far as [NAME_103] was concerned. [NAME_112] submit that the 2004 Agreement could not terminate the 2002 Agreement because that agreement is between [NAME_115] and [NAME_102], whereas the 2004 Agreement is between [NAME_103] and [NAME_80]. [NAME_112] also point out that, when the 2004 Agreement was signed, the majority shareholder in [NAME_103] was [NAME_106], and [NAME_102] was a minority shareholder although [NAME_104] appears to have exercised day-to-day control of the [NAME_103] business ([NAME_89] 26.10.12 [34]; 28.1.13 [53]). I accept that an agreement to which [NAME_102] is not party to may not bring about the termination of the 2002 Agreement. However, the conduct of [NAME_103], under [NAME_104]'s control, in this regard may evidence a separate abandonment of the 2002 Agreement to which [NAME_102] was party. 94The [NAME_7] also submit that the [NAME_6] have not pleaded a claim for abandonment of the 2002 Agreement. Nonetheless, both parties led evidence as to the relevant agreements and their implementation and addressed the issue in submissions, and it seems to me the case was conducted on the basis that whether the 2002 Agreement remained in force was in issue. In particular, [NAME_112] submitted that: "In any case, [[NAME_103]] and [NAME_80] entering into the Exclusivity Agreement did not terminate the [2002 Agreement]. [NAME_80] purported to grant [[NAME_103]] exclusive rights. If [NAME_80] could not do so because [NAME_80] had either assigned or granted non-exclusive rights to [NAME_102], then the consequences are that [NAME_80] was in breach of the Second Agreement and is liable for damages. Nemo dat quod non habe - [NAME_80] cannot grant rights that it does not have, and [NAME_80] does not regain all of the rights merely because it is purporting to grant an exclusive licence to a party, [[NAME_103]], who has a common director with a third party that it has assigned or granted non-exclusive rights to, [NAME_102]. The better view of the Exclusivity Agreement is that [[NAME_103]] is merely getting exclusive rights in the rights that [NAME_80] owns or controls (if anything). The only other person with rights, [NAME_102], was a 20% shareholder of [[NAME_103]] at the time, so [[NAME_103]] could rely on [NAME_102] not exercising its rights to interfere with [[NAME_103]] required exclusivity. In contrast, [NAME_80] was an unrelated third party, so [[NAME_103]] needed to lock [NAME_80]'s rights down." 95The [NAME_7] also submit that [NAME_103]'s position under the Exclusivity Agreement and the 2004 Agreement is not relevant to [NAME_137] position in respect of the 2002 Agreement. [NAME_112] submit, and I accept, that a recital in an agreement between [NAME_127] on the one hand and [NAME_103] on the other does not, as a matter of contract, bind [NAME_103]. However, [NAME_102] was a shareholder in [NAME_103] and each were relevantly controlled by [NAME_104], and the fact that [NAME_103] repeatedly acknowledged that previous agreements with respect to [NAME_101] had been replaced and that it had the exclusive rights to [NAME_101] seems to me to provide a strong basis for a factual inference that that was the case, albeit it had come about in an informal manner. It seems to me that that matter, combined with the fact that none of the parties thereafter exercised rights under the 2002 Agreement for a considerable time (until [NAME_102] purported to do so after their relationship broke down), supports an inference of an abandonment by [NAME_115] and [NAME_102] of earlier inconsistent arrangements under the 2002 Agreement. 96The parties directed limited attention to the contractual principles applicable to abandonment. In N [NAME_71], [NAME_73] & [NAME_75]'s Law of Contract, (9th Australian ed 2008, [NAME_65]) at [22.9], the authors observe that a contract must be regarded as discharged if both parties in fact treat it as at an end, even if no contract to discharge it can be spelled out. I also recognise that discharge of a contract by implied abandonment is, as [NAME_162] observes in [NAME_59], Breach of Contract (2011, [NAME_65]) at 606, "a fairly rare phenomenon". In Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144, the High Court held that the passage of time during which neither party took steps to perform a contract amounted to a mutual abandonment of that contract. Isaacs J there observed (at 151-152) that: "Whatever the terms of a contract may be, it is possible for the parties so to conduct themselves as mutually to abandon or aggregate it. ... In my opinion, that is the legal position here. Informally, but effectively, the parties have so acted in relation to each other as to abandon or abrogate the contract." 97In Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420, Dixon CJ and Fullagar J observed, although not holding that abandonment had been established in that case that: "Where ... an "inordinate" length of time has been allowed to elapse, during which neither party has attempted to perform, or called upon the other to perform, a contract made between them, it may be inferred that the contract has been abandoned". 98The plurality of the High Court took a similar view in DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1977-1978) 138 CLR 423 at 434, where their Honours observed that, by the time those proceedings were commenced, neither party regarded a contract as still being on foot, and must be regarded "as having so conducted themselves as to abandon or abrogate the contract". In Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [78], the Court of Appeal held that a novation by which one obligation is extinguished and a substituted obligation is created in its place made be implied from the circumstances. In CGM Investments Pty Ltd v Chelliah [2003] FCA 79; (2003) 196 ALR 548 at [18] (reversed on other grounds at [2003] FCAFC 279), Finkelstein J observed that abandonment depended upon the parties' conduct, objectively viewed, rather than upon any subjective intention to abandon an agreement. In Iacullo v Hillam [2014] NSWSC 1021, Ball J at [37] observed that whether one contract is intended to replace another depends on the objective intention of the parties, although his Honour held that abandonment was not established on the particular facts where subsequent agreements were between the same parties and covered the same subject matter, but the parties did not say or do anything to suggest that they intended that the later agreements would replace the earlier ones. 99In this case, notwithstanding that [NAME_102] was not party to the Exclusivity Agreement and the 2004 Agreement, it seems to me that the plain inference from those agreements is that the parties, including [NAME_102] (which, as I have noted, was under [NAME_104]'s control) intended the Exclusivity Agreement and the 2004 Agreement to replace the 2002 Agreement. The recitals and terms of the Exclusivity Agreement and 2004 Agreement would not have sensible operation, absent such an intention. No later than the date of entry into the 2004 Agreement, [NAME_104], [NAME_115], [NAME_103] and [NAME_80] seem to me to gave treated the relevant rights as arising under the Exclusivity Agreement and the 2004 Agreement and, more fundamentally for present purposes, [NAME_102] did not take any step to exercise rights of ownership of software under the 2002 Agreement, nor did [NAME_115] act as though that agreement were on foot, after that agreement was executed and until [NAME_104] later claimed that [NAME_102] had, in 2009, assigned rights under the 2002 Agreement to [NAME_110]. The parties, consistent with the informality of their dealings generally, did not take steps expressly to terminate the 2002 Agreement, but it seems to me that an abandonment of that agreement may properly be inferred from these circumstances.

For these reasons, I find that the non-exclusive licence to [NAME_102] to use [NAME_101] did come to an end by abandonment, at least by the entry into the 2004 Agreement. 100For completeness, I note that the licence granted to [NAME_102] under the 2002 Agreement was also expressly sought to be revoked by a letter from [NAME_115]' and [NAME_80]'s solicitor dated 24 January 2012 (Ex P2, 384-388) or by a further letter from [NAME_115]' and [NAME_80]'s solicitor dated 23 May 2014 (Ex P2, 401-416). It is not necessary to address those matters since I have held that the 2002 Agreement had previously been abandoned. If [NAME_102] has a non-exclusive licence that includes the right to use all [NAME_101] updates that has not terminated, expired or completed, does it bind [NAME_116]? ([NAME_7]' Issue 10) 101The [NAME_7] point out that, under s 196(4) of the Copyright Act, a licence granted by the copyright owner binds every successor in title to the copyright owner's interest to the same extent as the licence was binding on the grantor. They contend that, if the 2002 Agreement is a licence rather than an assignment, then [NAME_116] is [NAME_115]' successor in title under the [NAME_116] Agreement and that licence binds [NAME_116]. This issue does not arise in these terms given the findings that I have reached above. However, the right conferred on [NAME_102] to use the software as it existed at the time of the 2002 Agreement, and the implied licence to use updates provided under the terms of that agreement and voluntarily provided by [NAME_115], would bind [NAME_116] under the principles to which [NAME_112] refer, had that agreement not been abandoned as I have noted above. Consequences of [NAME_7]' success under the 2002 Agreement ([NAME_7]' issues 11-12) 102The [NAME_7] contend out that, if they had succeeded in respect of their issue 10, then [NAME_102], [NAME_103] and [NAME_110] would be entitled to use and sub-license the use of [NAME_101] and all updates to customers for the full period of copyright. I have held that [NAME_102] had a more limited licence under the 2002 Agreement, which was abandoned at least by the point of entry into the 2004 Agreement. No such right has been established in respect of [NAME_103] arising out of the 2002 Agreement since it has not been established that [NAME_102] at any point conferred any rights on [NAME_103]. 103No such right has been established in respect of [NAME_110] arising out of the 2002 Agreement since that agreement had been abandoned before any purported conferral of rights by [NAME_102] on [NAME_110] relying on that agreement. Although it is not strictly necessary to do so, I will address below the question whether it has been established that [NAME_102] (by [NAME_104]) granted a sub-licence to [NAME_110] (by [NAME_104]) in April 2009 in reliance on its rights under the 2002 Agreement, in terms sufficient to authorise [NAME_110]'s sub-licensing of [NAME_101] to third parties after that date. Source Code and Updates under the 2002 Agreement (SOC [15]-[26]) ([NAME_7]' issue 13) 104The next issue identified by [NAME_112] in respect of the 2002 Agreement is, if [NAME_102] has the right to use and sub-license the use of [NAME_101] and all updates under the 2002 Agreement, whether [NAME_115] has an obligation to provide [NAME_102] with the source code for [NAME_101] and all updates. This issue does not strictly arise, since I have held that [NAME_102] does not have a right to use and sub-license [NAME_101], other than as it existed at the time of the 2002 Agreement, and as updated by updates that [NAME_115] subsequently provided under the terms of that agreement or under the practice of voluntary updates that he has adopted with customers generally. I have also held that the 2002 Agreement was abandoned no later than at the time of [NAME_103]'s and [NAME_80]'s entry into the 2004 Agreement. 105The [NAME_7] plead (Amended Statement of Claim [15]) an express term of the 2002 Agreement that [NAME_115] was required to provide [NAME_102] with updated set-up disks as required to load the latest version of [NAME_101] under cl 6 of the 2002 Agreement. Alternatively, [NAME_112] plead an implied term in the 2002 Agreement that [NAME_115] would provide [NAME_102] with updates to [NAME_101]. As I noted above, cl 6 of the 2002 Agreement provided that [NAME_115] would provide all relevant materials pertaining to the design and development of [NAME_101] including functional specifications and source code, and complete and updated set-up disks as required to load the latest complete and operational version of [NAME_101]. 106Mr [NAME_5]' evidence is that he provided the source code for [NAME_101] to [NAME_104] in August 2002, when [NAME_104] paid the second progress payment contemplated under the 2002 Agreement. His evidence is that: "The source code for [NAME_101] was held in a single folder on the hard drive of my computer. When I copied the source code, I copied the folder containing the [NAME_101] source code to a CD and gave it to [NAME_104]. I labelled the CD '[NAME_100] for [NAME_128] and [NAME_135]'. That was the complete source code for [NAME_101] as it then existed. I also gave [NAME_104] a hard copy print out of the source code." ([NAME_5] 4.12.12 [67]) [NAME_104]'s evidence, to which I referred above, is that [NAME_115] provided [NAME_102] with a version of the source code on 13 August 2002 by a compact disc labelled August 2002 ([NAME_89] 26.10.12 [21], [22]; Ex P2, 32; Ex P7, 3/55). That disc is also labelled as containing AutoLISP source code, VB source code, C++ ARX source code and C++ SDS source code, and also records that the source codes are in uncompressed formats. 107In any event, the expert evidence led in the joint experts' report by the experts retained by the parties, [NAME_164] (retained by [NAME_112]) and [NAME_166] (retained by the [NAME_6]), is that a person who is provided with an executable version of [NAME_101] version 11.176 in AutoLISP programming language also obtains a copy of the relevant source code (Ex P7, 2/Tab 11, 7). [NAME_112] referred to discrepancies in the source code, but such discrepancies have not been established where the evidence of them rises no higher than the comments made by the proposed escrow holder in emails (to which I will refer below) and [NAME_115]' denial of their correctness ([NAME_5] 4.12.12 [112]). 108Clause 6 of the 2002 Agreement, to which I have referred above, required [NAME_115] to provide [NAME_102] with "updated" set up-disks "as required to load the latest complete and operational version of 'The Goods'". [NAME_112] submit that the use of the word "latest" and "updated" combined with "as required" is an express term that the 2002 Agreement covers [NAME_101] and all updates to it. I do not accept that submission. It seems to me that this obligation must be construed by reference to the definition of "The Goods" in the 2002 Agreement, referring to the right to the software package that was sold under that agreement at a point in time, and the words "latest, complete and operational version of 'The Goods'" in turn require that the version have that character as at that time. The contrary view would have the result that [NAME_115] would have taken upon himself an obligation of updating the software that continued without time limitation into the indefinite future, in consideration of a payment of some $25,000, a substantial part of which was referable not to the software but to future development [NAME_10]. The words "as required" seem to me to refer to the set-up discs that were required to (in the sense of necessary to) load the relevant software, not to any ongoing ability of [NAME_102] to require further software to be provided. In any event, that obligation ceased when the parties abandoned the 2002 Agreement as noted above. 109Mr [NAME_5] subsequently regularly amended the [NAME_118] and issued new releases to it and updated set-up disks of it, and sent emails attaching updates to [NAME_101] and provided access to his website that allowed the user to download updates to [NAME_101]. However, that was consistent with the existence of the 2004 Agreement and was also the practice he adopted in respect of other clients who had acquired software without entry into such agreements. 110In the further alternative, [NAME_112] contend that there is an implied term in the 2002 Agreement that covers updates and is not limited to [NAME_101] as at 28 July 2002. The requirements for the implication of such a term are, as [NAME_112] recognise, those set out by the majority of the Privy Council in [COMPANY_168] v [NAME_169] of Hastings (1977) 180 CLR 266 at 282-283, as approved by Mason J [COMPANY_138] v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 347, namely, the specified term (1) must be reasonable and equitable; (2) must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) must be so obvious that 'it goes without saying'; (4) must be capable of clear expression; and (5) must not contradict any express term of the contract. 111The [NAME_7] contend that term satisfies each of these requirements and, in particular, that that implied term is necessary to give business efficacy because the 2002 Agreement contemplates future activities such as the development of a system that [NAME_101] will be used with and future training, in the context of software that is being constantly updated. In my view, the suggested implied term does not satisfy several of those requirements. First, I do not consider that that term is reasonable and equitable, so far as it would continue indefinitely into the future. Second, the implication of a term also depends upon the demonstration of necessity: Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 452-453 per McHugh and Gummow JJ; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104. In my view, the suggested term is not necessary to give business efficacy to the 2002 Agreement which is effective without it, particularly where it contains an express term dealing with the position in respect of updates. Third, the suggested term, continuing indefinitely into the future, is by no means so obvious that it goes without saying. The suggested implied term is also inconsistent with cl 6 of the 2002 Agreement, read as conferring a right to the "latest, complete and operational version of 'The Goods'" as at the date of the agreement. If [NAME_102] does not have an ownership interest or a non-exclusive licence in [NAME_101] including all updates, is there another agreement by which [NAME_127] made modifications and developments to [NAME_101] at [NAME_137] and then [NAME_103]'s request and expense ([NAME_7]' issues 14-16). 112The [NAME_6] admit that [NAME_115] had granted [NAME_102] a right to use the modifications and developments under the 2002 Agreement (Defence [32]). [NAME_112] submit that, if (as I have held) the 2002 Agreement was terminated, expired or was completed, then there must be another agreement between [NAME_102] and later [NAME_103] with the [NAME_6] dealing with work that does not relate to [NAME_126] and predates the 2004 Agreement. [NAME_112] submit that they paid for and were involved with [NAME_115] in developing [NAME_101] generally, as well as modifications to [NAME_101] that were specific to [NAME_102]. They point to a number of invoices relating to a number of projects (for example, Ex P2, 267, 271; [NAME_89] 28.1.13 [22], Annexures "D" and "E") and submit that a number of these invoices pre-date the [NAME_126] Agreement between [NAME_103] and [NAME_126] dated 2 July 2003 ([NAME_89] 28.1.13 Annexure "J"), the [NAME_126] Agreement between [NAME_115], [NAME_121] and [NAME_103] dated 11 July 2003 (Ex P2 48; [NAME_89] 26.10.12, Ex P7, 3/146), and the 2004 Agreement. They point out that [NAME_115] accepts that that additional work was not done under the 2002 Agreement and predates the 2004 Agreement ([NAME_5] 14.10.13 [50], [66]). They also point out that [NAME_115] acknowledges that between 2003 and 2007, he purchased [NAME_119] from vendors "for various customers, on [[NAME_103]'s] behalf and passed the costs onto [NAME_103]" ([NAME_5] 14.10.13 [15]). 113It does not seem to me that it follows that, if the 2002 Agreement was terminated (relevantly, by abandonment), then any work that does not relate to [NAME_126] and pre-dates the 2004 Agreement must have been performed under some other agreement. First, the 2002 Agreement was not abandoned until the entry into other agreements involving [NAME_103] and, specifically, by no later than the entry into the 2004 Agreement. Second, there is no reason to infer that every act undertaken by [NAME_115] at [NAME_112]' request was performed by a separate agreement, rather than by the provision of the service either gratuitously or on the basis that [NAME_115] would charge for the service on an ad-hoc basis. Third, the terms of the suggested further agreement or how it came into existence are not identified by [NAME_112]. 114The [NAME_7] also identify issues (issues 15 and 16) whether, if such an other agreement exists, there are terms of that other agreement that [NAME_102] and then [NAME_103] would be entitled to use and sub-license the use of modifications and developments and to use and sub-license the use of [NAME_101] as part of using the modifications and developments. These questions do not arise since I have not held that any other agreement is established. I will nonetheless address [NAME_112]' submissions in respect of them. 115The [NAME_7] submit that, if [NAME_134] paid [NAME_115] to develop modifications of [NAME_101], then [NAME_134] would not automatically own the modifications, because [NAME_115] owns the copyright in the modifications because he is the author of the modifications and is not an employee of [NAME_134], for the purposes of s 35(2) of the Copyright Act and because there is no written assignment from [NAME_115] to [NAME_134], for the purposes of s 196(4) of the Copyright Act. They submit that there would be an implied licence from [NAME_115] to [NAME_134] to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement: [NAME_19] v [COMPANY_20] [1964-5] NSWR 229 at 235. That may well be correct, but it plainly depends upon the circumstances of the particular dealing and does not indicate that any wider agreement exists. 116The [NAME_7] then submit that: "Therefore, [NAME_112] have a right to use the Modifications and Developments to [NAME_101] Application that [NAME_112] paid [[NAME_115]] to make that [NAME_112] are using in [NAME_112]' steel frame manufacturing system." That conclusion does not seem to me to follow from its premise. [NAME_112] would have such a right, if it does not arise from the 2002 Agreement or the 2004 Agreement, would depend upon the nature of the relevant dealings. It is possible that such dealings would give rise to a right to use a particular modification for a particular purpose. It is also possible that they would not, if they took place under a mistaken view of [NAME_137] or [NAME_103]'s rights under the 2002 Agreement or a mistaken assumption that [NAME_115] (who had not taken legal advice for the large part of his dealings with [NAME_104]) would not in future take issue with [NAME_137], [NAME_103]'s or [NAME_104]'s view as to the extent of their rights. [NAME_112] do not seek to address the circumstances of particular dealings or how they might give rise to particular rights in particular modifications or developments in submissions and it does not seem to me that the Court can or should do so where the [NAME_6] have not had notice, by ways of submissions, as to any position that might be taken in that regard. 117The [NAME_7] submit that it is not possible to use the modifications to [NAME_101] without using [NAME_101] and, if [NAME_112] have a right to use the modifications, there may also be an implied licence to use the underlying [NAME_118]. They submit that a non-exclusive licence to use copyright may be implied to give efficacy to a specific agreement between the parties and not to undermine or impede the use of the copyright work for the purpose for which it was prepared: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [59] per Kirby and Crennan JJ; Copyright Agency Ltd v State of NSW [2008] HCA 35; (2008) 233 CLR 279 at [81], [87]. I accept that submission, so far as it goes, but it does not lead to the conclusion that a right to use [NAME_101] for any particular purpose has been established where a right to use particular modifications arising from particular dealings has not been established. [NAME_112] then submit that: "Therefore, if the [2002 Agreement] is terminated, expired or completed, [NAME_112] have an implied licence to use modifications to the [NAME_101] Application that [NAME_112] paid [[NAME_115]] to make, as part of [NAME_112]' steel frame manufacturing system. And in addition, [NAME_112] have the right to use [NAME_101] Application to the extent it is necessary to use [NAME_101] Application in order to use the modifications to the [NAME_101] Application as part of [NAME_112]' steel frame manufacturing system." Again, that conclusion does not seem to me to follow. Whether such a right would arise in particular circumstances would depend on those circumstances, and [NAME_112] have not sought by their submissions to establish that matter in respect of any particular modification giving rise to any particular right to use [NAME_101] in any particular circumstances, other than those to which I refer below. 118The [NAME_7] submit that they helped develop [NAME_101]'s "[NAME_113]" functionality, which incorporates look up tables and standards into [NAME_101] so that [NAME_101] could analyse a drawing in layout form and determine whether it complied with applicable standards. [NAME_104]'s evidence is that the screenshot of [NAME_101] that he first saw did not include [NAME_113] functionality and a user could not specify a building code ([NAME_89] 28.1.13 [5], Annexure "A"). [NAME_115]' evidence is that he only released that functionality in April 2003 ([NAME_5] 4.12.12 [31], Ex D6 2; 14.10.13 [27], [28], [61]), at a point that he was involved with [NAME_137] projects but also, it should be added, also with other clients. [NAME_112] also submit that they "drove" the development of the [NAME_113] functionality as part of the "Hayes Base System" and that the [NAME_113] functionality is "reflected" in material that [NAME_102] provided [NAME_115] including specifications and other information (Ex P2 2; [NAME_89] 26.10.12 [13] and Ex P7, 3/3); a discussion paper (Ex P2 39; [NAME_89] 26.10.12 [29]; Ex P7, 3/132); a meeting agenda (Ex P2 41; [NAME_89] 26.10.12 [30], Ex P7, 3/134); and an email from [NAME_104] outlining requirements (Ex P2 42; [NAME_89] 26.10.12 [31], Ex P7, 3/135). [NAME_112] point out that [NAME_115]' evidence does not explain, at least in detail, how he developed the [NAME_113] functionality ([NAME_5] 14.10.13 [100]). They also point out that the [NAME_113] functionality was released for the Hayes Base System in release 11.219 (Hayes Base System and CNC file) on 3 February 2003 and was then released generally, 16 days later in release 11.221 on 19 February 2003 (Ex P2 263-264; [NAME_89] 26.1.12, Ex P7, 3/129 and 130; [NAME_89] 19.3.14 [42]-[44], [70]-[75].) 119The [NAME_7] submit that the significance of the modifications and developments is reflected in the fact that [NAME_115] incorporated the modifications into [NAME_101] including [NAME_113] functionality and a U-Cord Truss which had been developed by [NAME_104] or his companies for their customers (T223-224) and put to the cost of making the modifications and developments, which include payments made to [NAME_127] and to [NAME_170] and his company, [NAME_121], for [NAME_113] work, including work under an agreement between [NAME_102] and [NAME_121] dated 11 February 2003 (Ex P2 44; [NAME_89] 26.10.12 [32] and Ex P7, 3/136; [NAME_89] 28.1.13 [6]). [NAME_112] also submit that: "In particular, these files [sic] were important Chinese state-owned companies, [COMPANY_171] and [COMPANY_173]. These were [NAME_112]' customers and they used [NAME_112] modifications to [NAME_101], particularly their customer CNC files and U-cord truss and T-cord truss. When these customers transitioned to [[NAME_116]], [[NAME_116]] was able to continue to provide them with their customer CNC files, U-cord truss and T-cord truss because these Plaintiff modifications had become part of the standard [NAME_101] that [NAME_116] was providing ([NAME_89] 14.4 [146]; [NAME_125] [63] to [69])." 120It seems to me that the evidence does establish that [NAME_102] or [NAME_104] prompted improvements in [NAME_101], by identifying matters to be addressed, and that the [NAME_113] work undertaken by [NAME_170] or [NAME_121] on [NAME_137] or [NAME_103]'s behalf is likely to have brought about improvements in [NAME_101]. I can accept that it may seem a matter of commercial unfairness that [NAME_115] or [NAME_116] should benefit from those efforts without compensating [NAME_102] for them. However, no claim for unjust enrichment was brought, and such a claim may not have been available where, on one view, [NAME_102] was a volunteer in providing the relevant information to [NAME_133]. No claim for breach of confidentiality was brought, and such a claim may not have been available to the extent that the product of the work had been made available to many users of [NAME_101]. It does not seem to me that [NAME_112] have established any legal basis for a proposition that, because [NAME_102] had made suggestions or provided information that may have improved [NAME_101], or had incurred costs in doing so, it has a legal right to use modifications and developments to which they have contributed that does not arise from the 2002 Agreement, the 2004 Agreement or any licence or authority granted by [NAME_133] in any particular dealing. As I noted above, [NAME_112]' submissions do not seek to identify any such licence or authority arising in any particular dealing. 2004 Agreement 121Several further issues turn on the 2004 Agreement. The first issue identified by [NAME_112] is the scope of the licence under the 2004 Agreement, pleaded in paragraphs [37]-[39] of the Amended Statement of Claim. [NAME_112] relevantly plead that: "On or about 11 August 2004, [[NAME_80]] granted [[NAME_103]] a non-exclusive licence in the [NAME_101] Application including updates in the [NAME_101] Application to use, copy, market, resell and promote the [NAME_101] Application." [NAME_112] identify a further issue arising from paragraph 37(d) of the Defence, namely whether the 2004 Agreement required [NAME_80] only to license [NAME_101] and all updates to customers who were purchasing a "complete turnkey solution". They also identify a question whether the licence under the 2004 Agreement was limited for seven years. 122In 2004, [NAME_80] entered into a further agreement titled "[NAME_99]". [NAME_112] contend that the 2004 Agreement granted [NAME_103] an entitlement to a non-exclusive perpetual licence to use, copy, market, re-sell and promote [NAME_101] worldwide, subject to an obligation on [NAME_103] to pay a licence fee of $1,000 for each person authorised by [NAME_103] to use [NAME_101] for a period of seven years from 11 August 2004. There is a dispute between the parties as to whether the 2004 Agreement has a term of seven years, or that is merely the period for which [NAME_103] is obliged to pay licence fees, so that [NAME_103] thereafter has a licence for which no fees are payable. [NAME_103] points out that the licence is stated to be a "perpetual licence" agreement, subject to termination provisions. 123In opening submissions, [NAME_112] contended that the 2004 Agreement was largely abandoned by [NAME_80], so far as its obligations were concerned, from 2009. [NAME_112] also contend that: "Even though [NAME_5] and [NAME_80] knew that new customers were being licensed with [NAME_101] (without [NAME_80] receiving the $1,000.00 licence fee) [NAME_80] took no step to claim payment of that money until after it sold [NAME_101] to [[NAME_116]] and was no longer entitled to that money (because it became payable to [[NAME_116]]." The acknowledgement in [NAME_112]' opening submissions that new customers were being licensed with [NAME_101] without [NAME_80] receiving a licence fee is a matter of some significance, and it is expressly made in respect of a period prior to the expiry of the seven year period for which licence fees were payable. 124I will first note the background to and the terms of the 2004 Agreement and then turn to the issues arising in respect of the 2004 Agreement, as identified by [NAME_112]. As I noted above, [NAME_126] terminated negotiations for an exclusive arrangement in July 2004 and [NAME_104]'s evidence is that [NAME_103] no longer required exclusivity from [NAME_80] and that he drafted a non-exclusive licence agreement which he provided to [NAME_127] ([NAME_89] 26.10.12 [44] - [45]). It appears that licence agreement was in fact drafted by a firm of New Zealand lawyers on [NAME_104]'s instructions. 125Recital A of the 2004 Agreement records that the Licensor ([NAME_80]) is "the owner ... of the Software", and the definition of the term "Software" in this agreement broadly corresponds to that of "The Goods" in the 2002 Agreement and the "Licensed Goods" in the Exclusivity Agreement, as: "The software package referred to as [NAME_99] and includes Quik Roof, Quick [sic] Truss, Quik Frame and Quik Floor owned by [[NAME_80]] and also includes the know how, methodology and trade secrets necessary for the implementation of the Software." That definition is, as I have noted above, inconsistent with an assertion of ownership of the software or the copyright in it by [NAME_102]. 126Recital B records that the agreement is an exclusive licence within Australia. Recital C recorded that the parties wished to enter the [NAME_118] Agreement to record the terms of a grant by [NAME_80] to [NAME_103] of a non-exclusive licence to use, copy, market, resell and promote the Software (as defined) in the Territory, as defined. The "Territory" is defined as "the world other than Australia, subject to clause 2.5", and cl 2.5 provides that the territory includes Australia on termination or expiry of the Exclusivity Agreement. After termination of that agreement on 31 March 2005, [NAME_103] therefore had a non-exclusive licence to in respect of [NAME_101], including Australia, under the 2004 Agreement. 127I should set out cll 2.1 and 2.2 of the 2004 Agreement in full, since they are of particular importance in these proceedings: "2. LICENCE OF THE SOFTWARE 2.1 Grant of licence In consideration for the sum of $1.00 paid by the Licensee [[NAME_103]] to the Licensor [[NAME_80]], the receipt of which is hereby acknowledged, [[NAME_80]] hereby licences to [[NAME_103]], and [[NAME_103]] hereby accepts a non-exclusive, perpetual (subject to clause 8) [dealing with termination] licence to use, copy, market, resell and promote the Software in the Territory. 2.2 Right to use [[NAME_103]] shall be entitled to grant to its customers the right to use the Software for their internal business purposes only, provided that for the period of 7 years following the date of this Agreement only the following terms shall apply: (a) [[NAME_103]] shall under the terms of its agreements with such customers limit the number of persons within the customer's organisation who will be authorised to use the Software; (b) For each person authorised by [[NAME_103]] to use the Software under paragraph (a) above [[NAME_103]] shall pay to [[NAME_80]] the sum of $1,000.00; (c) Payments due under paragraph (b) above in respect of each authorised person shall be made within 30 days following the date such authorised person is first authorised by [[NAME_103]] to use the Software; and (d) [[NAME_103]] may provide to each person authorised by [[NAME_103]] to use the Software under paragraph (a) all New Releases or Updates as and when they become available and without being required to make any further payment to [[NAME_80]] under this clause 2.2. For the avoidance of doubt, following the period of 7 years after the date of this Agreement [[NAME_103]] shall be entitled to grant to its customers the right to use any number of copies of the Software for their internal business purposes only, and may provide such customers with all New Releases and Updates, without being obliged to make any further payments to [[NAME_80]] under this clause 2.2." There is a question whether the reference to "customers" in this clause was a continuing permission to provide copies of [NAME_101], including to new customers introduced after the end of that seven year period. 128Clauses 2.2(d) (to which I have referred above), 2.3(c) and 2.4 of the 2004 Agreement in turn deal with the provision of "New Releases" and "Updates" as defined to [NAME_103]. Clause 2.2(d) allowed [NAME_103] to provide New Releases or Updates (as defined) "as and when they become available" but does not itself impose any obligation on [NAME_80] to provide them. By cl 2.3(c), [NAME_80] represented and warranted that: "The Software is, and all New Releases and Updates of the Software will be compatible with the operating platform known as [NAME_119] version 4, or such future version of [NAME_119] or such other operating platform as the parties may agree in writing." (Emphasis added) I will address the effect of this clause further below. Clause 2.4 provided that: "[[NAME_80]] shall offer [[NAME_103]] all Updates and New Releases immediately they become available, without further charge. [[NAME_103]] shall not be obliged to accept an Update or New Release." 129The terms "New Release" and "Update" used in these clauses are defined in cl 1.1 as follows: "'New Release' means software which has been developed by [[NAME_80]] for general release to its customers primarily to provide an extension, alteration, improvement or additional functionality of the Software. 'Update' means software which has been produced by the [[NAME_80]] primarily to overcome defects in the Software." 130Clause 2.5 in turn provided that: "The parties agree that this document replaces any current licences and licensing conditions issued with, or in relation, to the Software, with the exception of the Exclusivity Agreement, to the intent that the exclusivity granted under the Exclusivity Agreement within Australia shall continue until the termination or expiry of the Exclusivity Agreement. Following termination or expiry of the Exclusivity Agreement for any reason other than for breach of the Exclusivity Agreement by [[NAME_103]], the term "Territory" in this document shall be deemed to include Australia, but [[NAME_103]] shall not be liable to make any payments to [[NAME_80]] under clause 2.2 of this document in respect of any rights granted by [[NAME_103]] in Australia prior to the termination or expiry of the Exclusivity Agreement." 131Clause 4.1 of the 2004 Agreement in turn allowed [NAME_103] to request [NAME_80] to provide development services in relation to the software and contemplated the entry into a specified form of Development Agreement in respect of such a request. Development Agreements were entered into, pursuant to cl 4.1 of the 2004 Agreement, in relation to customers of [NAME_103] including [NAME_126], [NAME_172] and [NAME_151] ([NAME_89] 26.10.12 [48]-[50]). [NAME_104]'s evidence is that, from October or November 2006, [NAME_115] took the view that he would not sign more agreements and suggested that [NAME_104] send a purchase order for each development job ([NAME_89] 26.10.12 [57]). 132Clause 5 required the parties to enter into an escrow agreement with a reputable escrow agent, on terms acceptable to [NAME_103], in relation to the source code of the Software and all Improvements (as defined). That clause identified the terms on which the escrow agreement would provide for the release of the source code by the escrow agent to [NAME_103]. Clause 7.1(e) in turn contained a warranty by [NAME_80] that it was the legal and beneficial owner of all [NAME_9] (as defined) in the Software (emphasis added). The term "[NAME_9]" was in turn defined to include patent rights, know-how, copyright and design rights. Once again, there is no suggestion that [NAME_103], or [NAME_104] who signed the document on its behalf, took any objection to the accuracy of that warranty, notwithstanding that it would not have been accurate if [NAME_102] in fact owned the copyright in [NAME_101] under the 2002 Agreement, even on a non-exclusive basis. 133Clause 8.1 permitted [NAME_80] to terminate the 2004 Agreement immediately if [NAME_103] failed to pay the licence fee as set out in cl 3 of the agreement and that failure was not remedied within 21 days following receipt of a written notice from [NAME_80] requiring that non-payment to be remedied. Clause 8.2 provided for the consequences of termination, including termination of the non-exclusive licence, with specified exceptions. The [NAME_6] contend that the 2004 Agreement included an implied term that [NAME_103] would properly account for its licensing activity. 134Clause 10 contained a provision for the resolution of disputes under the 2004 Agreement, which contemplated the use of informal dispute resolution techniques such as mediation or expert evaluation or determination and, absent agreement as to the dispute resolution technique and procedures and other matters, then mediation in a specified manner. Clause 13.2 in turn provided that: "Neither party may assign or transfer its rights or obligations in this document or its rights, title and interest in the Software without first obtaining the written consent of the other party, such consent not to be unreasonably withheld. The proposed assignee's lack of experience shall be reasonable grounds for withholding consent." 135Clause 13.6(a) of the 2004 Agreement provides that it is intended to replace any previous understanding, agreement, representation or warranty relating to the subject matter of the agreement. Scope of licence under 2004 Agreement (Amended Statement of Claim [37] - [39]) ([NAME_7]' issues 17-18) 136The first issue identified by [NAME_112] is directed to the question whether if (as I have held), [NAME_102] did not have a non-exclusive licence under the 2002 Agreement that included the right to use all [NAME_101] updates that has not terminated, the 2004 Agreement was limited so as only to require [NAME_103] to license [NAME_101] and updates to it to customers who were purchasing a "complete turnkey solution" (Defence [37(d)]). 137The [NAME_6] contend that a principal objective of the business of [NAME_103] was that [NAME_101] would be supplied together with rollforming machines supplied by [COMPANY_108] and that [NAME_101] and the rollforming machines were to be sold as a single package, referred to as a "turnkey system". The [NAME_6] contend that the 2004 Agreement contemplated that [NAME_103] could sub-license [NAME_101] only in connection with the supply of a rollforming machine, where it was entered in the context of the joint venture with [NAME_106] which supplied such machines, since otherwise [NAME_103] would potentially be a direct competitor with [NAME_80] or [NAME_115] in the licensing of [NAME_101]. I accept that the agreement was entered in that context. However, it does not seem to me that the terms of the agreement impose such a limitation. 138The [NAME_7] respond that the language of 2004 Agreement grants [NAME_103] the right to sub-license [NAME_101] to its customers, but otherwise does not restrict the scope of the rights and, in particular, does not expressly limit the licence to a "turnkey" solution. There is a further dispute, which it is not necessary for me to resolve, as to the scope of the restriction on [NAME_103]'s business under its Shareholder Agreement with [NAME_106]. [NAME_112] also point out, and I accept, that the internal arrangements between [NAME_102] and [NAME_106] could not be characterised as the surrounding circumstances "known to the parties" in respect of the 2004 Agreement because there is no evidence that [NAME_133] knew of any suggested restriction to the scope of [NAME_103]'s activities. Even if such a restriction in [NAME_103]'s business had existed and had been known to both parties, that would not have supported narrowing the 2004 Agreement in a manner not supported by its terms. 139The next issue identified by [NAME_112] is whether the licence under the 2004 Agreement was limited for seven years. I set out the terms of the "right to use" under cl 2.2 of the 2004 Agreement in paragraph 127 above, and noted that there was a question whether that reference to "customers" in that clause extended to new customers introduced after the end of the seven-year period. It is clear that the licence granted by that clause was perpetual, as cl 2.1 provided, and did not itself terminate during the seven-year period. Each of the provisions in paragraphs 2.2(a)-(d) apply only in the seven-year period, including the requirement that [NAME_103] limited the number of persons within the customer's organisation authorised to use the software and pay the licence fee. It seems to me that clause provided the right to grant a licence to new and existing customers of [NAME_103] within that seven year period, subject to the relevant restrictions and licence fee requirement. 140The question then arises as to the scope of the licence granted after the expiry of the seven year period. There are matters that might support a view that the reference to "customers" in the last paragraph of cl 2.2 is to existing customers of [NAME_103], at the end of that seven year period, and not to new customers after that date. I note that cl 9.1(d) of the 2004 Agreement distinguishes between an existing customer of [NAME_103], described as a "customer", and a "prospective customer", and the reference to "customer" in cl 2.3 should be read as directed to the former. However, that does not determine the question whether a person is only a "customer" if he or she meets that description at the end of the seven year period or if that is determined from time to time after the end of that period. 141The narrower view of that clause would preserve [NAME_103]'s and its customers' ability to use [NAME_103] under rights granted in that seven year period, and allow incremental expansion of that right so far as additional persons within the customer organisations are permitted to use the software after the expiry of the seven year period. The wider view has the result that [NAME_80] and [NAME_115], at the end of the seven year period, authorised [NAME_103] to grant as many licences as it wished to as many persons as it wished within new customer organisations without payment of any licence fee to [NAME_80] or [NAME_115] and indefinitely into the future. That wider reading might reflect a commercial bargain that, after paying licence fees for seven years, [NAME_103] should be allowed a continuing licence at no further charge. On the other hand, that wider reading could confer a windfall on [NAME_103], particularly where the initial fee paid under the 2004 Agreement was nominal ($1.00) and [NAME_103] had not committed to payment of any minimum amount of licence fees in that seven year period. 142With considerable hesitation, it does not seem to me that the terms of cl 2.2 are sufficient to support the narrower reading of the clause. On its natural meaning, the phrase "customers" of [NAME_103] refers to customers from time to time, and that terms should be given the same meaning within and after the seven year period. I do not consider that the terms of the clause are sufficient to, in effect, read into the last paragraph an additional limitation that the reference to "customers" is to [NAME_103]'s customers at the end of the period. 143The [NAME_6] refer to several matters which they submit are post-contractual admissions by [NAME_127] that the 2004 Agreement remains in effect. These include a reference to the 2004 Agreement in the [NAME_116] Agreement; that the notice of breach and termination of the agreement proceeded on the basis that the 2004 Agreement was on foot; and that the [NAME_6]' [NAME_117] pleads that the second agreement is held on trust, which suggests that it has not expired. The first and second of these matters are equivocal, since the 2004 Agreement is on any view on foot to the extent that it confers continuing use rights on existing customers of [NAME_103], at the end of the seven year period as I have held above. Each of those matters otherwise depends on the question of law as to the proper construction of the 2004 Agreement and, if admissible, I consider they have little weight. 144For these reasons, I do not find that the licence under the 2004 Agreement was limited to seven years or to existing customers of [NAME_103] at the end of that seven-year period. Termination of 2004 Agreement (Amended Statement of Claim [75] - [77]) ([NAME_7]' issue 19) 145The next issue identified by [NAME_112] is whether [NAME_80] properly terminated the 2004 agreement. [NAME_112] plead that a termination of the 2004 Agreement by [NAME_80] by letter dated 24 January 2012 from [NAME_80]'s solicitors, [NAME_98], to [NAME_103]'s solicitors, [NAME_97], was not effective. [NAME_112] particularise a range of matters to support that allegation, including a claim that the relevant notice was not given in accordance with cll 8 and 12 of the 2004 Agreement. 146The parties identify numerous sub-issues which they contend arise in respect of this issue, namely, whether [NAME_103] was in a breach of the 2004 Agreement which remained unremedied; whether [NAME_103] failed to pay [NAME_80] all outstanding licence fees; whether non-payment of licence fees was abandoned by [NAME_80]; whether [NAME_103] sublicensed [NAME_110] to grant licences in [NAME_101]; whether [NAME_110] received any rights from [NAME_102] under the 2002 Agreement; whether [NAME_110]'s conduct was attributable to [NAME_103]; if [NAME_110]'s conduct was attributable to [NAME_103], whether [NAME_103] received consent from [NAME_80] to assign its rights to [NAME_110]; if [NAME_110]'s conduct is attributable to [NAME_103], and [NAME_103] did not receive consent from [NAME_80] to assign its rights to [NAME_110], whether [NAME_80] contributed or caused any breach by [NAME_103] by unreasonably withholding consent to an assignment, so [NAME_80] cannot take advantage of its own conduct to terminate; whether notice of the breach and notice of termination was properly served; whether the dispute resolution procedure in the 2004 Agreement was mandatory; and whether [NAME_80] was entitled to terminate the 2004 Agreement where [NAME_80] had assigned the 2004 Agreement to [NAME_116]. Not all of these issues were addressed by substantive submissions, and I will address below those that are material to the determination of the proceedings. [NAME_103] was in breach of the 2004 Agreement by reason of non-payment of licence fees 147Under cl 8.1 of the 2004 Agreement (Ex P2 112), [NAME_80] is entitled to terminate the agreement for [NAME_103]'s failure to pay licence fees if [NAME_80] gives notice of the failure and the failure is not remedied within 21 days. 148At about the time that [NAME_110] commenced licensing [NAME_101] to new customers, in about April 2009, [NAME_104] decided to cease to undertake new business in [NAME_103] and instead to undertake new business in [NAME_110]. So far as evidence as to the grant of licences after April 2009 was led in the proceedings, it appears that all such licences were granted by [NAME_110] (Ex D4, Tab 1, Schedules). [NAME_104]'s evidence in cross-examination as to [NAME_103]'s activities since April 2009 was not entirely clear. His evidence was initially that: "[NAME_110], as I mentioned before, is issuing renewals for existing licences for all customers. Obviously [[NAME_103]] isn't an operating entity anymore, even though it still exists. Everything is done out of [NAME_110] for business operations, and that includes licensing customers of [[NAME_103]] that appear on the first page of that schedule [Ex D4] that aren't required to pay annual fees as well. They are all annually relicensed." (T97) [NAME_104]'s further evidence in cross-examination was that, by April 2009, [NAME_110] had taken over the licensing, which he then qualified to indicate that was for new licences, but that [NAME_103] "had an existing customer base worldwide, and with those customers came obligations" (T131). [NAME_104] then indicated that, from April 2009, [NAME_110] took over as the licensor of [NAME_101] for "new, non-existing licences" (T132). [NAME_104] then suggested, inconsistently, that [NAME_103] both "continued and slightly wound down" and that "it is just not really doing anything", as follows: "Q. You don't make it clear in this first affidavit that [[NAME_110]] is taking over from [[NAME_103]] as the licensor - A. Well, when it came to new licences but what you have read there, [NAME_174], is about the development of the product and [[NAME_103]] didn't hit a brick wall and stop. It continued and slightly wound down. We did exhibitions after this time and advertised [[NAME_103]], [[NAME_103]] just didn't drop away. Q. So, when [[NAME_103]] continued until - what time do you say? A. It is still there, it is just not really doing anything. It is dormant, if I can put it that way. ... If I decided to trade from it, if [[NAME_103]] had a purpose to do something I guess it would." Doing the best that I can with this evidence, it seems to me that [NAME_103] had at least ceased to deal with new clients and substantially ceased all its business from April 2009, but may have had a residual business renewing licences granted to previous clients, the extent of which is unclear. 149HSFS stopped paying licence fees to [NAME_133] in respect of [NAME_101] possibly by February 2009, and certainly by April 2009, and [NAME_104] took the position in cross-examination that [NAME_110] was not required to pay such licence fees (Ex D4, item 15, T95, 111-114, 129-130). The [NAME_6] also submit that [NAME_175], who dealt with [NAME_115] on behalf of [NAME_110], used a different email address in communication with [NAME_115] and that the Court should infer that he was trying to suppress the identity of [NAME_110] as the licensing entity of [NAME_101] as well as the identity of new customers to whom licenses were granted (Ex P7/Tab 4/Annexures "B" to "F" at 16-32, Annexure "G-R" at 32-36, Annexure "S" at 37, Annexure "T-BB" at 42, 46; Annexures "CC-OO" at 50-51). [NAME_175] denied that suggestion when it was put to him in cross-examination. There were many occasions on which [NAME_175] used that separate email address and several occasions on which he used an email address that referred to [NAME_110]. I do not consider it necessary to determine this matter in order to decide this issue given the other findings that I have reached. 150By letter dated 21 December 2011 from solicitors acting for [NAME_127] to solicitors acting for [NAME_103] (and [NAME_104]), [NAME_127] gave notice that they required [NAME_103] to remedy all breaches of the 2004 Agreement including paying all outstanding licence fees within 21 days, by 11 January 2012. [NAME_116] also sent a notice of breach on 21 December 2011 ([NAME_130] 31.10.13 [46], Annexure SMTH, Ex P7, 6/Tab 10). 151By letter dated 6 January 2012, [NAME_112]' solicitors responded that: "[[NAME_103]] acknowledges its liability to your client for Licence Fees for each Licence granted prior to August 2011 at the rate of $1000.00 per licence as specified in the 2004 Agreement. On this basis, our client calculates that 19 new licences have been granted. Notwithstanding our view that your client is itself in breach of contract, we enclose herewith, without admission, our client's cheque in the amount of $20,900 (inclusive of GST)." [NAME_104] accepted in cross-examination that this payment did not include any of the licences granted by [NAME_110], in purported reliance on a sub-licence granted by [NAME_102] under the 2002 Agreement. The [NAME_6] submit that the 19 licences did not on any view represent the totality of the licences granted by interests associated with [NAME_104], and specifically [NAME_110] for [NAME_101], and that proposition is established by Ex D4. However, as I will note below, [NAME_103] was not required to pay royalties in respect of licences that it had not in fact granted. 152By letter dated 24 January 2012 from their solicitors to [NAME_112]' solicitors, [NAME_127] purported to terminate the 2004 Agreement, effective immediately ([NAME_130] 31.10.13 [85], Annexure SMTR, Ex P7, 6/Tab 10). [NAME_116] also sent a notice of termination on 24 January 2012 (Ex D9, Tab 1), although it had not previously given notice of any breach of the 2004 Agreement. 153By a further letter dated 23 May 2014, without admission as to the effectiveness of the earlier notices to remedy the breaches and termination notices, [NAME_80] and [NAME_116] terminated the 2004 Agreement for non-payment of licence fees and terminated any licence, authorisation or authority to [NAME_102], [NAME_103], [NAME_110] or [NAME_104] to do any of the acts comprised in the copyright in [NAME_101] or the user documentation. 154The [NAME_7] submit, first, that [NAME_80]'s termination of the 2004 Agreement was not effective because it was based on [NAME_103] not paying licence fees to [NAME_80] under the 2004 Agreement, and [NAME_103] had remedied any failure to pay licence fees when, on 6 January 2012, its solicitors sent a letter to [NAME_80]'s solicitors enclosing a payment of unpaid licence fees (Ex P2 373). 155The [NAME_6] contend that they were entitled to terminate the 2004 Agreement for failure by [NAME_103] to pay licence fees to [NAME_80] as and from 2009 and for the purported transfer of the rights to license [NAME_101] to [NAME_110], without the knowledge or consent of [NAME_133]. That proposition assumes that [NAME_103] in fact transferred such rights to [NAME_110]. 156The [NAME_6] at one point submitted that the amount then paid was not the full amount of licence fees outstanding because it was not "per person", or did not cover all licences granted by [NAME_103]. [NAME_112] submit that the fees they paid were paid on a per person basis, and there are seven licences for one customer, [COMPANY_171], and 12 licences for another customer, [COMPANY_173] (Ex D4, Tab 1, [NAME_101] Schedule dated 11 March 2013, items 42 and 43). They submit that there is no evidence that [NAME_103] granted any other licences and did not pay licence fees for those licences. However, the [NAME_6] did not identify evidence to support that submission of non-payment in respect of licences granted by [NAME_103] when I requested further submissions as to that matter following the hearing. It does not seem to me that a breach has been established in respect of licence fees payable in respect of licences granted by [NAME_103], as distinct from licences granted by [NAME_110]. The [NAME_6] did not submit that a payment of unpaid licence fees, without an undertaking not to repeat the breach, was not sufficient to cure the relevant breach and it is therefore not necessary to address the complexities that would have arisen had such a submission been made, having regard to cases such as Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689 at 722-723 per Wardell AJA and Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 558 at [120]ff. 157The [NAME_7] submit that no breach arose from their admitted failure to pay licence fees in respect of licences granted by [NAME_110] because, they submit, [NAME_103] is not required to pay licence fees under the 2004 Agreement where [NAME_110] granted the relevant licences, and that [NAME_110] is not exercising rights under the 2004 Agreement but instead exercising rights sub-licensed to it by [NAME_102] under the 2002 Agreement. [NAME_112] make clear that they do not contend that [NAME_110] is using rights under the 2004 Agreement, and correctly point out that that is the premise of the [NAME_6]/[NAME_11]' claim for breach of copyright against [NAME_110]. 158The [NAME_6] conversely submit that: "... to the extent that [[NAME_103]] authorised this conduct [ie the grant of licences by [NAME_110]], it constituted breaches of the 2004 Agreement entitling [NAME_80] and [NAME_115] to terminate the 2004 Agreement and to revoke any licence of [NAME_101] including for: a failing to pay any licence fees to [NAME_80] as and from April 2009; or b (if this indeed happened) purporting to transfer rights to license [NAME_101] to [NAME_110], without the knowledge or consent of [NAME_133]. By this device, also, [[NAME_103]] by its director [NAME_104] sought to avoid the obligations under the 2004 Agreement." 159I do not accept this submission. I have referred above to cl 2.2 of the 2004 Agreement, which authorised [NAME_103] to grant its customers the right to use the software and required [NAME_103] to pay [NAME_80] the amount of $1000 for each person authorised by [NAME_103] to use the software. That payment obligation depended on the grant by [NAME_103] of the relevant right to its customers. [NAME_112]' case is that [NAME_110], not [NAME_103], granted that right and it did not do so under the 2002 Agreement. There is no evidence to the contrary and it is not implausible that [NAME_110] either granted rights in reliance on the 2002 Agreement (as [NAME_112] contend) or without any basis to do so (as the [NAME_6] contend in their [NAME_117]). The terms and conditions of the licences granted by [NAME_110] to customers refer to dealings with [NAME_110] and invoices to customers appear to have been issued by [NAME_110] (although a minority also refer to [NAME_103]). Even if [NAME_103] is held to the admission in the earlier Statement of Claim that [NAME_110] was acting as its agent, a grant of a licence to a customer other than under the 2004 Agreement did not give rise to an obligation to pay a licence fee under that agreement. 160The fundamental difficulty with the [NAME_6]' submission is therefore that [NAME_103] was not obliged to pay licence fees to [NAME_80] other than in respect of licences that it had granted. It generally did not grant such licences from April 2009, after [NAME_104] as its director diverted its business to [NAME_110]. There is no evidence that [NAME_103] purported to transfer its rights to license [NAME_101] to [NAME_110]. Although I do not find that [NAME_102] granted a sub-licence to [NAME_110] in April 2009, as [NAME_112] contend, that does not lead to the conclusion that some other transaction took place, where [NAME_112] do not contend that any other transaction took place and the alternative conclusion that [NAME_110] simply dealt with the software without any right to do so is plainly open. 161For these reasons, a continuing breach of the 2004 Agreement by reason of non-payment of licence fees is not established. [NAME_110] is exercising rights under the 2002 Agreement 162As I noted above, [NAME_112] also identify a sub-issue whether [NAME_110] obtained its rights from [NAME_102] under the 2002 Agreement. I have held above that the 2002 Agreement had been abandoned and ceased to have effect well before the suggested grant of rights under it by [NAME_102] to [NAME_110] in April 2009 and that is sufficient to dispose of this subissue. I should, however, also address [NAME_104]'s affidavit evidence that [NAME_102] (acting through him) granted rights to [NAME_110] (also acting through him) under the 2002 Agreement after April 2009. The suggested sub-licence is not in writing and its terms were not identified. 163The [NAME_7] point out, and I accept, that a person may make an agreement between himself and a company which he or she controls, or by extension, two companies which he or she controls, in an informal way: see, for example, [NAME_113] v [NAME_154] above at [401]-[402]. However, the Court may be less readily satisfied that a commercial transaction in fact took place in that manner where, as here, there is no evidence of any consideration given to its terms and no identification of what they are. I am by no means satisfied, for the reasons noted below, that [NAME_104] in fact granted an informal sub-licence to [NAME_110] in April 2009 in reliance on its rights under the 2002 Agreement or that the terms of any such grant (which were not identified by [NAME_112]) were sufficient to authorise [NAME_110]'s sub-licensing of [NAME_101] to third parties after that date. 164Mr [NAME_89]'s initial evidence ([NAME_89] 26.10.12 [76]) as to the entry into the licence between [NAME_102] and [NAME_110] was no more than a conclusory assertion, admitted without objection, that: "In April 2009 I determined on behalf of [[NAME_102]] to licence [NAME_110] to use [NAME_99] and did so." This evidence is striking for its lack of specificity, as to when in April 2009 that decision was made and as to the terms of any licence, including the particular rights that comprised any ability of [NAME_110] to "use" [NAME_101]. The language of "use" might also be apt to reflect a permission for [NAME_110] to use [NAME_101] for its own use, rather than a sub-licensing arrangement by which [NAME_110] was entitled to grant new licences to its own customers. 165In reply, [NAME_104] somewhat expanded on the circumstances of the suggested assignment from [NAME_102] to [NAME_110], but not on its terms, as follows: "Following [[NAME_80]'s] refusal to discuss any issue relating to any agreements with [[NAME_102]] and [[NAME_103]], in or about April, 2009, I decided that [[NAME_102]] could and would provide [NAME_110] with sub-licensing rights, given the rights acquired by [[NAME_102]] pursuant to the 2002 Agreement. I was of the view that this allowed [NAME_110] to licence new customers and/or users of the [NAME_101] program and that this also allowed [[NAME_103]] to continue to licence new customers and/or users of the [NAME_101] program via the 2004 Licence." ([NAME_89] 28.1.13 [59]) 166Mr [NAME_89]'s oral evidence-in-chief, by leave, was that he decided to grant the licence by [NAME_102] to [NAME_110] in April 2009 in his capacity as a director of those companies (T66-67). [NAME_104] gave further evidence as to the grant of the suggested licence in cross-examination as follows (T66-67): "Q. How do you say that any such licence was granted? A. Well, I decided myself to grant that licence. Q. At the time that you say, first of all, can you tell his Honour when you made that decision? A. That decision was made around April 2009. Q. When that decision was made, in what capacity or capacities were you making that decision? A. I was making that decision as directors of the companies concerned. Q. Just for completion, the companies concerned are? A. As director of [NAME_102] and [NAME_110]." [NAME_104] was further cross-examined as to this issue as follows (T141 - 142): "Q...you gave evidence about the circumstances under which you decided to grant the licence to [NAME_110]. Do you recall that? You said you made that decision around April 2009? A. Yes. Q. There's no document, as I think you've agreed, recording that licence, is there? A. No, there is not. Q. How do you say it occurred? Was it something that you what, you had a conversation with yourself, or how did you say that happened? A. Yeah, I - well, yes is the short answer. I decided because there were no other partners involved and it was me that was in charge and an owner of those companies, I didn't feel I needed to actually document in the same way that I did with [NAME_102] where I had a known minority position and an American partner. I didn't feel I needed to do it the same way." 167The correspondence between the parties before and after April 2009 does not refer to a sub-licence granted by [NAME_102] to [NAME_110] in reliance on its rights under the 2002 Agreement. [NAME_112] do not suggest such a sub-licence was granted at any other time. The case law indicates that the Court may have reference to subsequent dealings between parties to determine whether an oral agreement exists, as distinct from questions of constructions in respect of such an agreement. In Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [143], Campbell JA observed that: "... the task in ascertaining what are the terms of a contract that is not wholly in writing ... is finding as a fact what the parties have agreed. A range of postcontractual conduct could be relevant to ascertaining what the parties have agreed. For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record or report on the contract rather than carry it out could also assist in that task." In Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 at [98]-[99], Edelman J similarly observed that: "... subsequent conduct is a relevant matter to consider in finding whether, as a fact, the alleged oral promises were made. [NAME_177] v [COMPANY_178] [[1983] QB 54, 77], Stephenson LJ (with whom O'Connor LJ and [NAME_179] agreed) said: I have already expressed my view that this agreement was oral, but even if it was partly in writing, we are concerned with the search for a term that was not written down, and there is nothing in those authorities which prevents the court from looking at the way the parties acted for the purpose of ascertaining what that term was. Common sense suggests that their subsequent conduct is the best evidence of what they had agreed orally but not reduced to writing, though it is not evidence of what any written terms mean. This passage was approved by Owen J in [COMPANY_182] (in liq) v Westpac Banking Corporation (No 9)[[2008] WASC 239 at [2668]] and the latter half was quoted with approval by Murphy JA (Pullin & Newnes JJA agreeing) in [NAME_183] v [NAME_183] [[2012] WASCA 72 at [192]-[195]]. The statement by Stephenson LJ is consistent with statements in a number of other cases. Spigelman CJ has also described post-contractual conduct as a matter of "significant weight" in identifying the subject matter of an alleged oral contract [County Securities Pty Ltd v Challenge Group Holdings Pty Ltd [2008] NSWCA 193 at [24]]. This approach also accords with principle. It would be peculiar if courts were to be constrained in the exercise of finding facts from considering any relevant matter subsequent to the alleged occurrence of the fact in issue." This principle has been applied in respect of an inferred agreement in Fazio v Fazio [2012] WASCA 72 at [193] per Murphy JA (with whom Pullin and Newnes JJA agreed). It seems to me that principle is no less applicable where [NAME_112] rely, not on an oral agreement, but on an agreement said to have been formed by [NAME_104] within his own mind in his two capacities as a director of [NAME_102] and [NAME_110]. It seems to me that, to adopt the language of Edelman J in [NAME_184] above, it would indeed be peculiar if the Court could not look to whether what [NAME_104], [NAME_102] and [NAME_110] subsequently said and did was consistent with the agreement [NAME_104] said had been formed in April 2009 in order to determine whether his evidence as to that matter should be accepted. 168Prior to the suggested sub-licence from [NAME_102] to [NAME_110], [NAME_104] had raised various possible licence arrangements with [NAME_115] about this time, but none of them involved a licence by [NAME_102] to [NAME_110] relying upon the 2002 Agreement. By email dated 30 May 2008 (Ex P5), [NAME_104] suggested to [NAME_115] that a new licence agreement be entered into in respect of [NAME_101] between [NAME_110] and [NAME_80]. That email noted that the attached licence agreement was the same as [NAME_115] had seen before - presumably in the 2004 Agreement - other than for non-solicitation and naming rights provisions in cll 2.4 and 2.5 and the draft agreement increased the price per licence to $1,250, and [NAME_104]'s covering email offered to provide for a minimum of five licence bundles. The proposed cl 2.5 would have prohibited [NAME_80] knowingly approaching, soliciting or supplying [NAME_101] to any customer of [NAME_110] without [NAME_110]'s written consent, and a similar provision was found in the 2004 Agreement in respect of [NAME_103]. Clause 5 would have permitted [NAME_110] to promote or resell the software under such name, logo or other reference as it chose, subject to [NAME_80]'s written consent which could not unreasonably be withheld. 169By an email dated 8 March 2009, which also dealt with escrow issues to which I will refer below, [NAME_104] referred to his intention to assign the "existing licence" to [NAME_102] and sought consent to that assignment. That email necessarily referred to the 2004 Agreement, since there would be no need to assign the 2002 Agreement to which [NAME_102] was party to itself. A further email from [NAME_104] to [NAME_115] dated 20 March 2009 again referred to a suggested assignment of the licence agreement to [NAME_102] which was described as "just an inter-company thing" so that [NAME_102] would have the licence and not [NAME_103], and offered to explain the reasons for that assignment. That email is also necessarily directed to an assignment of the 2004 Agreement, given the reference to [NAME_103] as the existing licensee and the fact that there was no need to assign the 2002 Agreement to which [NAME_102] was already party to itself. 170Mr [NAME_5]' evidence is that, when he received a request from [NAME_104] to assign the 2004 Agreement to [NAME_102], he was not aware of the reason for that assignment because [NAME_104] did not explain it to him ([NAME_5] 4.12.12 [117]). His evidence was also that he was then receiving new requests from [NAME_104] to develop [NAME_101] to meet new arrangements between [NAME_103] and new customers, for which he had not received licence fees ([NAME_5] 4.12.12 [118]). [NAME_115]' evidence in cross-examination was that, when he had numerous emails from [NAME_104] seeking to transfer the interest to several entities and did not know what was going on, he was "distrustful so [he] just sat back and done nothing" (T259). [NAME_104] responds to that evidence by referring to an email dated 20 March 2009 (Ex P7 3/324) as the explanation of the reason for the assignment. That email provides no real explanation of either the purpose or the commercial effect of the suggested assignment. 171An email dated 3 April 2009 from [NAME_104] (Ex P7, 3/332) refers to CNC outputs for products to match with Howick machines and to a request for a licence transfer to [NAME_110] and for [NAME_101] to be "marketed back into SFS customer base". It seems to me this email must also refer to the 2004 Agreement, since emails before and after it refer to that agreement rather than the 2002 Agreement. [NAME_115] ([NAME_5] 4.12.12 [121]) refers to a conversation with [NAME_104] in words to the effect that: "[NAME_5]: "Where are the sales that go with these requests? [NAME_89]: There haven't been any sales." [NAME_115]' evidence is also that, to his knowledge, none of [NAME_103]'s existing customers were then using Howick machines; he was concerned with matters raised in that email, including two matters that appeared to be requests for modifications of [NAME_101] for new customers; and he had not previously received a request for a licence transfer to [NAME_110] or for [NAME_101] to be "marketed back into SFS customer base" ([NAME_5] 4.12.12 [122]). 172Mr [NAME_89] denies the conversation and adds, in reply that: "All customers up until April 2009 were licensed by [[NAME_103]] under the 2004 [Agreement], and all customers licensed after April 2009 were licensed by [NAME_110] via the sub-licensing rights given to [NAME_110] by [[NAME_102]] under the 2002 Agreement." ([NAME_89] 28.1.13 [62]) There seem to me to be several difficulties with [NAME_104]'s evidence in this regard. First, it seems to me likely that [NAME_115] would have in fact recognised that requests for compatibility with a brand of machine not used by existing customers of [NAME_103] would indicate that there were customers of which he had not been informed and had not received licence fees and would make inquiry as to that matter. [NAME_104]'s denial of the conversation relates not only to the answer he gave, but also to the fact of that inquiry. Second, the email appears to support the view that, prior to April 2009, customers were using Howick machines and there was no evidence contrary to [NAME_115]' evidence that they were not customers of [NAME_103]. [NAME_104]'s evidence does not explain how, prior to April 2009, those customers came to be licensed without [NAME_103] paying the requisite fees to [NAME_80], where the suggested sub-licence given by [NAME_102] to [NAME_110] did not come into existence in April 2009. Third, [NAME_104]'s explanation again highlights the lack of precision in the reference to "April 2009" as to when the suggested sub-licence was given by [NAME_102] to [NAME_110]. 173Mr [NAME_89]'s evidence is also that, in April 2009, [NAME_102] and [NAME_103] "were, at the time, deciding on the best course of action and wished to discuss the options of assigning the rights of the 2004 Licence [held by [NAME_103]] to either [[NAME_102]] or [NAME_110]" and that issue was to be discussed at the meeting at Sydney Airport on 6 April 2009 ([NAME_89] 28.1.13 [58]). That issue is recorded on the agenda for that meeting. 174By email dated 19 April 2009, [NAME_104] advised [NAME_115] that, if he had not heard from [NAME_115] by the end of the week, he would transfer the rights to [NAME_102] and also again referred to the escrow agreement, which I will address below (Ex P2, 190). That email also referred to the 2004 Agreement since, as I noted above, there would be no need to assign the 2002 Agreement to which [NAME_102] was party to itself. 175On 1 May 2009, [NAME_104] sent a further email to [NAME_115] (Ex P7, 3/335) noting that some of the items raised with [NAME_115] at their meeting at the airport "have grave commercial consequences for us" and indicating the view that it is "only fair and reasonable to expect you to honour current obligations from the contracts we have in place". That email did not refer to any sub-licence by [NAME_102] to [NAME_110] that, on [NAME_115]' evidence, had already been granted. [NAME_115]' evidence is that was the last email he received from [NAME_104], although he later received further communications from [NAME_175] in respect of technical issues after May 2009 ([NAME_5] 4.12.12 [125]-[126]). There is therefore no contemporaneous notification to [NAME_115] of any sub-licence given by [NAME_102] to [NAME_110], as well as no contemporaneous documents created by [NAME_102], [NAME_110] or [NAME_104] referring to such a sub--licence and, it appears, no reference to such a sublicence in licence agreements subsequently granted by [NAME_110] to its customers (Ex D4). A further letter dated 18 November 2011 from the [NAME_185] to [NAME_115] (Ex P2, 349) referred both to the 2002 Agreement and the 2004 Agreement and also dealt with the question of escrow arrangements, but also did not refer to any sub-licence of [NAME_137] rights under the 2002 Agreement to [NAME_110], notwithstanding that it appears by that time that [NAME_110] rather than [NAME_103] was undertaking the bulk of licensing activity. 176It was squarely put to [NAME_104] in cross-examination that the suggested sub-licence by [NAME_102] to [NAME_110] is a retrospective attempt to provide a basis for the licence to [NAME_110] which would not give rise to an obligation to pay royalties under the 2004 Agreement. It is not necessary for me to reach such a finding, given its character, but I am not satisfied that a sub-licence was granted by [NAME_102] to [NAME_110] in April 2009 such as would authorise the grant of software rights by [NAME_110] to third parties and [NAME_112] do not suggest it was granted thereafter. I think it likely that, about April 2009, [NAME_104] did decide that [NAME_110] would commence dealing with new customers to the exclusion of [NAME_103], and that is what occurred. That course could have been implemented by [NAME_104], who was then obviously frustrated by [NAME_115]' lack of consent to the alternatives he had proposed, taking that course without considering he needed to address the legal niceties, particularly where he would have known that [NAME_115] did not have a practice of taking legal advice as to their dealings. It could have been implemented by [NAME_110] acting as agent for [NAME_103], relying on [NAME_103]'s rights under the 2004 Agreement, a course that would be consistent with [NAME_112]' pleading, in their earlier Statement of Claim, that [NAME_110] in fact dealt with third parties in that capacity. It could have been founded on an assignment of the 2004 Agreement to [NAME_110], although that would have required [NAME_80]'s consent and [NAME_112] do not suggest it occurred. It could have occurred by an assignment or sub-licensing of rights under the 2002 Agreement, had it not been previously abandoned, to [NAME_110] although the absence of any reference to that course before or after it is said to have occurred makes that possibility less likely. I am not satisfied, given the generality of [NAME_104]'s evidence and the absence of any contemporaneous support for it, that it occurred by [NAME_104] forming an informal agreement with himself in his two capacities as director of [NAME_102] and [NAME_110], with sufficient specificity that it was directed, first, to the rights under the 2002 Agreement rather than the 2004 Agreement and, second, that it had the character of a sub-licence of those rights by [NAME_102] to [NAME_110]. 177The [NAME_7] also advanced elaborate submissions as to the position if, contrary to their position, [NAME_103] had assigned rights under the 2004 Agreement to [NAME_110] without [NAME_80]'s consent. I do not consider it necessary to address those submissions where [NAME_112] do not seek to rely on such an assignment and there is no other evidence that it took place. I should note, however, that I do not consider that it would have been unreasonable for [NAME_80] to withhold consent to such an assignment where it would have had the result that the rights under the relevant agreement would have vested in [NAME_110] although any obligations under it, which were not capable of assignment, would have remained with [NAME_103] and where, arguably, [NAME_110] could have exercised those rights without payment of licence fees since the relevant licences would then not have been granted by [NAME_103]. I should add that I do not accept [NAME_104]'s evidence in cross-examination (T113) that he would have been "happy" for [NAME_110] to pay licence fees in that situation, although it was not obliged to do so. That evidence was inconsistent with the fact that [NAME_103] and [NAME_110] did not do so from April 2009, although [NAME_104] sought to explain that inconsistency by the deterioration in the relationship with [NAME_115], and was also inconsistent with his evidence in cross-examination (T111) that [NAME_115] could have had no expectation of receiving licence fees if [NAME_103] (or [NAME_110]) was not obliged to pay him, presumably after the expiry of the seven-year period under the 2004 Agreement (T111). I also do not accept [NAME_112]' associated submission, based on [NAME_104]'s evidence, that: "The reason [NAME_110] did not pay licence fees was because [NAME_80] had not consented to [[NAME_103]] assigning the [2004] Agreement to [NAME_110] [sic] denied its rights under the 2002 Agreement". [NAME_80] had abandoned its right to terminate the 2004 Agreement for breach 178The [NAME_7] also submit that [NAME_80] had abandoned its right to terminate for [NAME_103]'s failure to pay licence fees because it was aware of the facts giving rise to [NAME_103]'s asserted breach of the 2004 Agreement and any consequential right to terminate that agreement and did not terminate that agreement within a reasonable time of becoming aware of those matters. It is not strictly necessary to determine this matter since I have held above that a right of termination did not arise from [NAME_110]'s grant of licences, which were not founded on rights arising under the 2004 Agreement. 179The [NAME_7] point out that [NAME_115]' evidence was that he had not received licence fees since February 2009 ([NAME_5] 4.12.12 [102]) and was suspicious that [NAME_103] was not paying licence fees from September 2009 ([NAME_5] 4.12.12 [134], [NAME_5] 14.10.13 [124]) and that [NAME_115] conceded in cross-examination that his concerns had stretched back years (T313). [NAME_112] also submit that [NAME_80] elected to affirm the contract by not blocking authorisations generated by a customer licence generator previously supplied to [NAME_134] and continuing to provide updates through its website and continuing to engage with [NAME_175], [NAME_103]'s technical support person ([NAME_5] 4.12.12 [126]-[128]; [NAME_176] 22.10.13 [18], [22]-[23]). 180The [NAME_7] did not advance substantive submissions as to the applicable principles of abandonment, waiver, election or affirmation. I do not consider that I should seek to formulate the manner in which they would seek to establish that the facts to which they refer constitute abandonment, waiver, affirmation or election, in order to determine that claim, since the [NAME_6] would then have had no real opportunity to answer such a formulation. I note that, in any event, that claim would have faced the immediate difficulty that [NAME_127] would not have knowledge of the relevant facts where [NAME_112] had not disclosed that they were relying on a claimed sub-licence by [NAME_102] to [NAME_110] to grant licences from [NAME_110] without paying the amounts that would have been payable under the 2004 Agreement. [NAME_112] have therefore not established any abandonment, waiver, election or affirmation so as to defeat the notice of termination. Service of the notice of breach and notice of termination 181There is also a sub-issue as to whether and when notice of termination of the 2004 Agreement was effectively served. By an affidavit dated 2 April 2014, [NAME_112]' solicitor gave evidence that the notice to remedy the relevant breaches and the termination notice were sent to him rather than the address set out in cl 12 of the 2004 Agreement. The [NAME_6] contend that this matter was not specifically pleaded. [NAME_112] submit, and I accept, that they referred to this matter in the pleadings (in particulars (i) to paragraph 76 of the Amended Statement of Claim and the particulars to paragraph 28(d) of the Reply), although I note that those reference were not particularly transparent in disclosing the point to be taken. I will assume, without deciding, that this point was open to [NAME_112]. 182The issue turns upon cl 12 of the 2004 Agreement (Ex P7, 3/205). Clause 12.1 provides that: "A notice, consent or other communication under this document is only effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail or fax. ..." (emphasis added) Clause 12.2 in turn specifies both the address and facsimile numbers of [NAME_80] and [NAME_103]. It seems to me that cl 12.1 identifies alternative means of service, either by delivering a document to the addressees' address or by mail or by facsimile, specifying in the former case that that document be sent to the addressee at that particular address, but in the latter case specifying only that it be sent to the addressee but not adding an additional requirement that be done at the specified address or facsimile number. 183The [NAME_7] submit, correctly, that a notice of termination under the 2004 Agreement "is only effective" if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail or fax, by reason of cl 12.1 of the 2004 Agreement. [NAME_112] submit, and I will also assume without deciding, that this is a mandatory clause and the notice is only effective if it complies with the clause: Comdox No 24 Pty Ltd v Robins [2009] NSWSC 367. However, [NAME_112]' submission assumes, sub silentio, that the reference to the addressee's address refers not only to where the notice should be left but also to where it should be sent by mail or fax, and I do not accept that assumption. In my view, that clause permitted a notice to be sent to the addressee by mail or by facsimile, at any address at which the addressee had expressly or impliedly agreed to accept communications, and not only at the address or facsimile number specified in cl 12.2, by contrast with the provision for leaving a notice at the addressee's address which could only be effected at the address specified in cl 12.2. 184The letter sent by the solicitors for [NAME_127] requiring rectification of the breach and the notice of termination were sent by facsimile (Ex P2, 351, 384) and it seems to me that delivery in that manner is not limited to delivery to the specified address. [NAME_112] also submit that the notices were addressed to [NAME_103]'s solicitors and not [NAME_103], but the terms of cl 12.1 of the 2004 Agreement do not prevent such notice being given to a party by its agent. In engaging a solicitor to send and receive communications on its behalf, [NAME_103] necessarily consented to communications to it being sent to that solicitor for the purposes of the latter part of that clause. 185The [NAME_6] also submit that the purpose of the clause dealing with the method of service was to ensure that notices under the 2004 Agreement came to the attention of the other party, and presumably to rely upon proof of service where service is factually in dispute: Al Jadeed TV v United Broadcasting International Pty Ltd [2011] FCA 983; (2011) 283 ALR 205 at [65]-[66] per Flick J. They note that [NAME_112] do not dispute the fact of service on their solicitor and that it is clear that the notice of breach and the termination notice in fact came to [NAME_103]'s attention because responses were received to those notices on 6 January 2012 and 2 February 2012 respectively. It is not necessary to determine the effect of these matters where the issue can be determined on the proper construction of cl 12 of the 2004 Agreement for the reasons noted above. 186The [NAME_6] also submit that the filing and serving of the Cross Claim on 29 May 2013 constitutes sufficient notice as and from that date and that, without any admissions as to the effectiveness or otherwise of the notice of breach and the notice of termination, the [NAME_6] sent a further letter of termination on 23 May 2014 (Ex P2, 401-415). It is also not necessary to address these matters given the findings that I have reached above. Failure to comply with dispute resolution procedures 187The [NAME_7] also refer to the requirements of the dispute resolution procedure under cll 10.1-10.3 of the 2004 Agreement and refer to the decision of the High Court in [COMPANY_186] (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 311-312 per Brennan CJ, Gaudron and McHugh JJ and also to Fabig v Photon Group [2010] NSWSC 358 at [10] per [NAME_68] J. Those cases dealt with the stay of court proceedings, pending an arbitration in the former case and an expert determination in the latter and not with the termination of an agreement, and [NAME_112] did not refer to authority dealing with the issue in respect of termination. As [NAME_187] v [COMPANY_188] above recognised, a stay of such proceedings by reason of a failure to comply with such proceedings is a matter of discretion. Those cases do not establish any principle that a contract cannot be terminated in that situation. 188I accept that cll 10.1-10.3 of the 2004 Agreement imposed mandatory provisions, which were breached by [NAME_80] so far as it did not proceed to mediation as contemplated by those clauses. However, the right to terminate the 2004 Agreement for breach, after notice is provided under cl 8 of the 2004 Agreement, is not expressly limited by any requirement for previous compliance on that clause. The [NAME_6] did not contend that such a limitation could be implied into that clause, and it does not seem to me that such a contention could have been accepted, so that, for example, [NAME_103] could, by serving a notice of dispute, avoid or delay termination of the agreement for a failure or refusal to pay licence fees when due which it had failed to remedy after notice. Had the parties wished to achieve that result, they could readily have limited the right to terminate under cl 8 to do so. The position in that regard is quite different from the question whether, for example, [NAME_80] could commence court proceedings without compliance with cl 10 of the 2004 Agreement. [NAME_80] could terminate the 2004 Agreement after the entry into the [NAME_116] Agreement 189Next, [NAME_112] contend that [NAME_80] was not entitled to terminate the 2004 Agreement where it had assigned the benefit of that agreement to [NAME_116] under the [NAME_116] Agreement. [NAME_112] contend that [NAME_116] as the assignee of the contractual right under a legal assignment is entitled, as owner of that right, to take action in respect of it. In Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40; (2006) 149 FCR 395 at [30], [32], [42], Finn and Sundberg JJ observed that, where the benefit of contractual rights was assigned, the assignee also acquired the remedies in respect of non-performance including the right to terminate the contract. [NAME_112] point out that [NAME_127] gave (or, as they put it, purported to give) notice of the assignment by letter dated 21 December 2011 (Ex P2 351) and, if that notice was effective, the assignment was effective under s 12 of the Conveyancing Act 1919 (NSW) from that date. 190The [NAME_6] submit that the 2004 Agreement was not assigned to [NAME_116] but was held on trust for it, because the 2004 Agreement required [NAME_103]'s consent before that agreement was assigned, and cl 5.4 of the [NAME_116] Agreement provided that the parties would use all reasonable endeavours to obtain consent necessary to transfer [NAME_80]'s rights under the relevant contracts including that agreement. [NAME_80] and [NAME_116] could have proceeded in that manner, they did not do so, possibly because (as I will note below) [NAME_115] understood the 2004 Agreement had terminated and [NAME_116] did not have notice of the terms of that agreement or any contrary position taken by [NAME_112] until after the [NAME_116] Agreement had been executed and any assignment effected. [NAME_112] also submit, and I accept, that an assignment without consent can still take effect, although it would involve a breach of the 2004 agreement: [NAME_189], [NAME_61] & [NAME_63], Contract Law in Australia, (5th ed 2007, [NAME_65]) at [17.24]. Clause 13.2 of the 2004 Agreement does not seem to me, on its proper construction, to amount to a condition to an effective assignment so as to invalidate an assignment undertaken in breach of it, since it neither provides that such consent is a precondition to a valid assignment nor provides that the absence of such consent invalidates an assignment. 191The [NAME_7] submit that, after [NAME_80] entered into the [NAME_116] Agreement on 31 October 2011, only [NAME_116] had the right to terminate the 2004 Agreement, and [NAME_116] has not given notice to terminate that agreement. I also accept that submission, which follows from the matters set out above. 192Tanmari gave a further notice of termination of the 2004 Agreement by letter dated 23 May 2014 from [NAME_98] to [NAME_103] (Ex P2 401.) [NAME_112] also contend that notice was ineffective. That notice was not necessary so far as any question of service was concerned, since I have held that the initial termination letter was effectively served, and does not otherwise bring about an effective termination of the 2004 Agreement where notice was given by [NAME_80] rather than [NAME_116]. 193For these reasons, the 2004 Agreement has not been validly terminated. Right to updates (Amended Statement of Claim [40] - [46]) ([NAME_7]' issue 20) 194The next issue raised by [NAME_112] is whether [NAME_80] is required to provide updates to [NAME_103] under the terms of the 2004 Agreement, including updates so that [NAME_101] is compatible to the most recent version of [NAME_119] and whether [NAME_116] is now responsible for providing the updates. The [NAME_6] rely on cll 2.3(c) and 2.4 of the 2004 Agreement, which provide that [NAME_80] was obliged to provide new releases of the version of [NAME_101] that were compatible with the operating platform for [NAME_119] version 4 but not thereafter, unless agreed in writing. I have set out those clauses above. 195The [NAME_7] point out that cl 2.3(c) of the 2004 Agreement provides that [NAME_80] warrants that [NAME_101] is and all new releases and updates "will be compatible with [NAME_119] 4, or such future version of [NAME_119] or such other operating platform as the parties may agree in writing." I read the words "may agree in writing" in cl 2.3(c) as qualifying both the words "such future version of [NAME_119]" and "such other operating platform" in this clause. The comma that appears prior to the words "or such further version" supports that reading of those words as quantifying both concepts. The reference to "such" prior to the reference to "future version of [NAME_119]" is also only consistent with a reading of that requirement as to extending to particular versions of [NAME_119] that were the subject of agreement. That reading of the clause is commercially reasonable, where [NAME_80] would be unlikely to accept an open-ended commitment to maintain compatibility with [NAME_119] without knowing what changes might in future be made to [NAME_119] or whether it would be technically possible to do so, at all or at a reasonable cost. It is common ground that there was no agreement in writing concerning compatibility with later versions and [NAME_131]'s evidence is that there is no working version of [NAME_101] compatible with [NAME_119] 7 or version 7.2 ([NAME_130] 30.5.14 [6], [8]-[11]). 196The [NAME_7] submit the parties only have to agree in writing if another operating platform is used, and not for [NAME_119] version 4 or for a future version of [NAME_119]. [NAME_112] also submit that: " It is reasonable that the parties would need to agree in writing if [NAME_80] or [[NAME_103]] were changing operating platforms as this would be a significant logistical and business issue if the parties changed platforms. In contrast, there were no significant issues if [NAME_119] transitioned from version 4 to a later version. The analogy is moving from Microsoft Windows to [NAME_190] requiring written agreement, but moving from Microsoft Windows version 7.0 to Microsoft Windows version 7.1 does not require written agreement." It does not seem to me that the terms of the clause support that construction of the clause, as I have noted above. It also seems to me that [NAME_112]' analogy demonstrates the difficulty with their construction of this clause. Moving from one version of [NAME_119] to another or one version of Microsoft Windows to another may or may not raise significant difficulties, depending upon the differences between those versions, and there was good reason for the parties to require agreement to that course since either might be disadvantaged by a requirement for compatibility with a version of [NAME_119] that was significantly different to version 4. 197This reading of cl 2.3(c) of the 2004 Agreement has the result that [NAME_80] is not obliged to bring an update into existence, where it has not otherwise done so, so as to secure compatibility with later versions of [NAME_119] beyond version 4 unless that later version is agreed in writing between [NAME_80] and [NAME_103]. However, cl 2.4 of the 2004 Agreement requires [NAME_80] to offer Updates and New Releases (as defined) to [NAME_103] immediately as they become available, without further charge. I should note, for completeness, that [NAME_80] is not under any obligation to provide such updates to [NAME_102], since it is not party to the 2002 Agreement and that agreement was abandoned no later than the date of [NAME_103]'s entry into the 2004 Agreement. [NAME_80] is also under no obligation to provide such updates to [NAME_110], both for that reason and because I have not accepted [NAME_104]'s evidence that [NAME_102] sub-licensed its rights to [NAME_110] as he claimed in April 2009. 198The parties led conflicting evidence as to the versions of [NAME_101] that were in fact available to [NAME_103], as to which they made somewhat limited submissions. On the one hand, [NAME_112] submitted that updates were available and provided to licensees of [NAME_80] but not provided to [NAME_103], and in particular updates compatible to IntellliCAD 6 were not made available to [NAME_103]. That submission was undermined by [NAME_115]' evidence in cross-examination, which I accept, that he did not provide updates to existing customers to [NAME_119] version 6, because the software was already compatible with [NAME_119] version 6, although new customers received versions of [NAME_101] that were combined with [NAME_119] version 6.6 which involved the provision of new software rather than an "update" or new release in respect of existing software (T297-298). It does not seem to me that that evidence is "elusive" (as [NAME_112] described it in submissions) and there is nothing illogical about the sale of new software in one form without the provision of updates to existing customers, absent a contractual obligation to issue such updates. The obligation in the 2004 Agreement was, as [NAME_112] recognise, to provide such updates to [NAME_103] if they were made available, and does not arise where such updates (as distinct from new software in a different form) were not made available. 199The [NAME_7] also submitted that the current version of [NAME_101] is version 11.803 ([NAME_130] 30.5.14 [8], [9]) and submitted that this has not been provided to [NAME_103]. That submission has the difficulty that it assumes, without establishing, that that version of [NAME_101] is properly characterised as an "Update" or "New Release' for the purposes of the 2004 Agreement, notwithstanding [NAME_115]' evidence to which I have referred above. The [NAME_6] respond that [NAME_80] provided updates and new releases to [NAME_103] up to 11 August 2011 pursuant to the 2004 Agreement and thereafter by making them available to all of its customers, including [NAME_103], on its website. The [NAME_6] also point out (in their submissions as to [NAME_103]'s allegation of conspiracy) that [NAME_104] accepted in cross-examination that the latest version of [NAME_101] held by [NAME_103], obtained in 2011, was version 11.599 or 11.604 (T178) and they submit that both those versions are compatible with [NAME_119] version 6.6 and no existing version of [NAME_101] is compatible with [NAME_119] version 7.2 ([NAME_130] 30.05.14 [9] and [11]). They also point out that, in 2011 and 2013, [NAME_110] made representations on its website that it could renew [NAME_101] licences for versions later than 11.603 ([NAME_5] 14.10.13, Annexure RC2, pp.1, 3, 4 and Annexure RC3). It does not seem to me that the manner in which [NAME_112] have put their case as to this matter allows me to conclude that any particular version of [NAME_101] which they say they do not have was an "Update" or "New Release" as defined in the 2004 Agreement, or that that particular update was made available to third parties and not to [NAME_103]. It might be added that, although quantification is not in issue at this stage, any loss suffered by [NAME_103] by this matter would be limited by the fact that it ceased to license new customers in April 2009 and did not purport to, and does not contend that it was entitled to, sub-license the software provided to it to [NAME_110]. 200The [NAME_7] also submit that the [NAME_116] Agreement restricts [NAME_80]'s ability to provide updates to [NAME_103] since, on the settlement date, [NAME_127] delivered all copies of the source code to [NAME_116] ([NAME_116] Agreement, cl 4.2(a)(i), Ex P2 330) and cl 4.2(b) of that agreement provides that [NAME_127] must not directly or indirectly make use of any of the Assets (as defined to include the [NAME_101] Application) except as directed by [NAME_116] and [NAME_127] cannot be involved in the development, support, maintenance, licensing or sale of any software competing with [NAME_101] for the restraint period under cl 7.1 of the [NAME_116] Agreement. [NAME_112] also point out that cl 2.2 of the [NAME_116] Agreement provides that [NAME_116] will assume and perform all obligations of [NAME_127] in respect of the Specified Liabilities (as defined), which include the 2004 Agreement. These provisions do not prevent [NAME_80] complying with any such obligations under the 2004 Agreement with [NAME_116]'s consent or [NAME_116], as the successor to the copyright in [NAME_101], doing so. 201The [NAME_7] alternatively, and somewhat tentatively, submit that emails from [NAME_115] to [NAME_103] which refer to [NAME_80] transitioning to [NAME_119] version 7.2 "may constitute" an agreement for that purpose (Ex P2 193, 304, 308; [NAME_89] 26.10.12 [88], Ex P7, 3/339; [NAME_176] 22.10.13 [24]; Ex P7, 5/tab 4, Annex "A" at 13, "Y" at 42, "BB" at 46). I do not accept that submission since discussion of that matter is not agreement about it. Right to escrow and implied term right to source code (Amended Statement of Claim [53]-[66]) ([NAME_7]' issues 21-23) 202The next issues identified by [NAME_112] are whether [NAME_80] breached an obligation to deposit source code with an escrow agent; whether, if [NAME_80] breached its obligation to deposit source code, there was an implied term in the 2004 Agreement that if [NAME_80] breaches that obligation then it is required to provide source code if one of the escrow release conditions is satisfied; and whether, if there is such an implied term, one of the escrow release conditions been satisfied. 203Mr [NAME_89]'s evidence is that he raised the question of placing the source code in escrow with [NAME_115] in March 2005 ([NAME_89] 26.10.12 [52]). [NAME_115] conceded in his evidence that the issue of putting the source code in escrow was raised by [NAME_104] at various times after the 2004 Agreement was entered, and he attributes the words "don't worry, we'll get around to it" to [NAME_104] ([NAME_5] 4.12.12 [107]). [NAME_104] denied that conversation in evidence in reply ([NAME_89] 28.1.13 [52]). 204Mr [NAME_89] contacted an escrow agent in mid-2007 ([NAME_89] 26.10.12 [59]) and, in November 2007, obtained a verification report from the proposed escrow arrangement as to source code provided to [NAME_102] at the time of entry into the 2002 Agreement ([NAME_89] 26.10.12 [60], Ex P7, 3/250). Communications took place between the proposed escrow agent and [NAME_115] in early 2008. By email dated 9 January 2008, the proposed escrow agent referred to issues that had been identified during the verification of the [NAME_118] (implicitly, in respect of the 2002 Agreement) and noted that it had also been requested to look at the [NAME_101]/[NAME_103] material subject to a second licence agreement, presumably the 2004 Agreement. That email noted that: "The key objective of the review that we recently undertook is to ensure that the source code, as lodged/provided, is current and provides the necessary basis for a build should a probably unlikely event be triggered that would make this necessary." (Ex P7, 3/289) The proposed escrow agent suggested that it would like to address issues relating to: "The current versioning, build and other documentation, and some suggestions on our part as to how to restructure the source code material currently held to better reflect the actual position." (Ex P7, 3/289) [NAME_115] appears to have taken no objection to that approach. However, it should be recognised that [NAME_80]'s obligation in respect of the lodgement of source code was to lodge that source code in the form it existed, not to engage in any process of improving it. The further suggestion made by the escrow agent seems to me to be inconsistent with an obligation to lodge the source code as it existed at a particular point in time in escrow, as distinct from improving it for other purposes. No doubt, parties could contract for source code to be revised or improved to meet particular objectives, but the parties in this matter had not done so. 205Mr [NAME_89] renewed his request for the source code to be placed in escrow in November 2008 ([NAME_89] 26.10.12 [68], Ex P7, 3/294). [NAME_115]' evidence is that he received a draft escrow agreement from [NAME_104] in January or February 2009, although he did not keep a copy of it, and that the release provisions in respect of the source code did not reflect the terms included in the 2004 Agreement. His evidence is that, after receiving the draft, he called [NAME_104] and said words to the effect that: "I've been to see my accountant. He's told me that the software's an asset and I shouldn't be prevented from transferring it. I am concerned about the triggering events. I can't agree to your draft." ([NAME_5] 4.12.12 [114]) [NAME_104] denies that conversation ([NAME_89] 28.1.13 [56]). It seems to me likely that the draft would have contained such provisions, so far as other drafts in evidence were to similar effect. [NAME_115]' evidence is consistent with his practice of discussing matters of this kind with his accountant rather than with a solicitor throughout the relevant period. I prefer [NAME_115]' evidence to [NAME_104]'s evidence in respect of this conversation. [NAME_115]' evidence in cross-examination was that there was a particular clause in the draft escrow agreement that he was not happy with and he did not accept that draft agreement and he was not asked to identify that clause (T293). 206A further meeting took place between [NAME_115] and the proposed escrow agent in January 2009 ([NAME_89] 26.10.12 [69]). [NAME_104] then sent [NAME_115] a further draft escrow agreement in March 2009 ([NAME_89] 26.10.12 [71], Ex P7, 3/322; [NAME_5] 4.12.12 [116]). That draft software escrow agreement was prepared by the solicitors acting for [NAME_104] and referred to the parties as [NAME_102], [NAME_80], [NAME_115] and the proposed escrow agent, and to that extent was not consistent with the fact that the 2004 Agreement was with [NAME_103], not [NAME_102]. [NAME_104] claimed that the reference to [NAME_102] in the draft escrow agreement circulated in 2008 was a "mistake" and that should have been a reference to [NAME_103]. It was put to [NAME_104], although he denied, that the draft agreement was sent in [NAME_137] name in order to advance a restructuring so that licence fees would no longer be paid to [NAME_80] under the 2004 Agreement (T103). I consider it unlikely that the preparation of a draft escrow agreement that named [NAME_102] rather than [NAME_103] was merely a mistake, and it seems to me that draft was intended to put [NAME_102] in the position that it would have obtained the software had the escrow conditions be satisfied. 207The escrow events included in that draft agreement were also not consistent with those provided in the 2004 Agreement because the suggested agreement was extended beyond the source code to "Material" (which was defined to include a significant volume of information); extended to provide for the release of the source code and the "Material" in the event, not only of actual or threatened insolvency on the part of [NAME_191] and [NAME_115], but if [NAME_133] were "in jeopardy of becoming subject to any form of insolvency administration"; and an additional event for the release of the source code and "Material" was introduced, namely, if [NAME_115] assigned or transferred any of his right and interest in the Software and Improvements to any other person. It seems to me that [NAME_115] was justified in not entering into that agreement in the form proffered by [NAME_103], whether or not he had recognised the extent to which it sought to improve the position of the interests associated with [NAME_104] beyond that contemplated by the 2004 Agreement. 208By an email dated 8 March 2009, [NAME_104] retreated somewhat from that position that had previously been advanced in that draft escrow agreement, advising by email that he had cut out matters that were not mentioned in "our licence", which was presumably a reference to the 2004 Agreement. The email refers to an attachment, a further revised draft escrow agreement, but that attachment is not in evidence and whether it was in fact in terms consistent with the 2004 Agreement has not been established. A further email from the proposed escrow agent dated 19 March 2009 referred to [NAME_115]' advice that he had "significant problems with the triggering events" (Ex P2, 187) although it is not clear to which draft of the agreement he was referring, and whether those concerns were justified cannot be assessed without access to the terms of the relevant draft. By email dated 19 April 2009, [NAME_104] again referred to the escrow agreement, which was said to be straight out of "an existing agreement" (Ex P2, 190). 209A further discussion took place in late March 2009 between [NAME_115] and the proposed escrow agent in respect of the trigger events for a release of the source code from escrow ([NAME_89] 26.10.12 [72]; Ex P7, 3/323; [NAME_5] 4.12.12 [113]-[114]) and further communications between [NAME_104] and [NAME_115] followed. An agenda prepared by [NAME_104] for a meeting on 3 April 2009 referred to the proposed escrow agreement ([NAME_89] 26.10.12 [81], Ex P7, 3/332; [NAME_5] 4.12.12 [121]-[122]). A meeting then took place between [NAME_104] and [NAME_115] at Sydney Airport on 6 April 2009. [NAME_104]'s evidence of that meeting ([NAME_89] 26.10.12 [79]-[81]) is that he said to [NAME_115] that: "The corporate issues such as assigning our rights and escrow are well overdue." ([NAME_89] 26.10.12 [84]) [NAME_115]' evidence is that he does not have a recollection of the meeting ([NAME_5] 4.12.12 [123]) although he denies [NAME_104]'s evidence that he walked out on that meeting. I accept that it is, on its face, surprising that [NAME_115] does not have a recollection of that meeting, in circumstances that he has been able to give evidence of other conversations with [NAME_104] in the relevant period. 210The question of the escrow agreement and a suggested assignment of the 2004 Agreement was again canvassed in an email from [NAME_104] to [NAME_115] dated 19 April 2009 ([NAME_89] 26.10.12 [84], Ex P7, 3/333). 211A letter dated 18 November 2011 from the [NAME_185] to [NAME_115] referred both to the 2002 and 2004 Agreements; identified suggested deficiencies with the "source code which was provided to our client" in respect of the 2002 Agreement and also referred to an obligation of [NAME_80] to deposit the source code for the [NAME_101] with an escrow agent on terms acceptable to [NAME_103]. The latter statement was something of a gloss on the 2004 Agreement, which referred to an obligation to enter an escrow agreement with a reputable escrow agent, with the deposit of the source code being a matter that would presumably be addressed by that escrow agreement. 212A further letter dated 6 January 2012 from the solicitors acting for [NAME_104] and the companies associated with him responded to various matters raised in the letter dated 21 December 2011 from the solicitors acting for [NAME_127], maintained [NAME_137] entitlement to source code under the 2002 Agreement, and went so far as to allege that the source code provided by [NAME_115] in respect of the 2002 Agreement have been "falsely marked to be the source code". That allegation is not now pressed by [NAME_112]. 213The [NAME_7] submit that [NAME_80] was and is required to put the source code for [NAME_101] in escrow, to be released on certain specified conditions. They point out that cl 5 of the 2004 Agreement (Ex P7, 3/211) requires the parties to enter into an escrow agreement, with an escrow agent, in relation to [NAME_101], to be released in the circumstances set out in that agreement. They submit, and it is common ground, that [NAME_80] did not enter into an escrow agreement, and did not deposit the then source code to [NAME_101] in escrow. It should, however, be noted that [NAME_103] also failed to comply with cl 5 of the 2004 Agreement, so far as the only draft escrow agreement proffered by it that is in evidence did not comply with the requirements of that clause. 214The [NAME_6] respond (in their submissions as to [NAME_103]'s allegation of conspiracy) to [NAME_112]' criticisms of [NAME_115]' failure to deposit source code into escrow. They submit that the evidence establishes that [NAME_115] was initially negotiating a suitable agreement with [NAME_104], through a representative of the escrow agent. They note that the draft escrow agreement provided (as I noted above) for [NAME_102] to be a party to it, whereas [NAME_103] was party to the 2004 Agreement which gave rise to the provision of source code into escrow ([NAME_89] 26.10.12, Ex P7, 3/299-321; [NAME_5] 4.12.12 [118]-122], [127]-[130], [134]-[135]; T286). That difference seems to me to be material since an escrow agreement in favour of [NAME_102] had the potential, if the conditions to release of the software were satisfied, to allow [NAME_102] to take possession of the software to which (as I have held above) it had limited rights under the 2002 Agreement and no rights under the 2004 Agreement. The [NAME_6] also submit that [NAME_115] did not ultimately finalise these negotiations because he was not being paid licence fees, and he suspected that [NAME_104] was selling [NAME_101] to new customers without paying him those licence fees ([NAME_5] 4.12.12, [118]-[122], [127]-[130], [134]-[135]; T286). That suspicion was correct, so far as sales were made by [NAME_110] at least from April 2009, although it does not provide a contractual justification for non-compliance with the requirements as to entry into the escrow agreement under the 2004 Agreement. 215The [NAME_6] also plead that [NAME_80] did not enter into the escrow agreement because the proposed escrow agent was not independent (Defence [54(b)(iii)]). I do not understand that submission to have been pressed and it does not seem to me to have been established by the evidence of some dealings between that escrow agent and [NAME_103] in respect of verification of the [NAME_101] source code, and is also not supported by [NAME_115]' evidence as to the matters that concerned him at the relevant time. 216The [NAME_7] submit that the release conditions in the draft escrow agreement ([NAME_89] 26.10.13, Ex P7, 3/307) "substantially" reflect the release conditions in the 2004 Agreement (cl 5, 2004 Agreement, [NAME_89] 20.10.13, Ex P7, 3/211). [NAME_112] also submit that: "... it is disingenuous for [NAME_80] to claim that the draft Escrow Agreement did not reflect the [2004] Agreement in circumstances where [[NAME_115]] was given the opportunity to comment on the draft escrow agreement, and [[NAME_115]] did not make comments or seek amendments to the draft escrow agreement". I do not accept that submission. [NAME_103] and [NAME_104] proffered a draft escrow agreement that significantly expanded [NAME_103]'s rights beyond those to which it was entitled under the 2004 Agreement, leaving [NAME_115], who they would have known typically did not take legal advice to such matters, to identify the differences if he could. It seems to me that [NAME_115] and [NAME_102] had every reason to object to that approach. Nonetheless, [NAME_112] have established that [NAME_80] breached the 2004 Agreement, so far as it was obliged to enter into an escrow agreement and did not do so. 217The [NAME_7] submit that [NAME_80] is now required to enter into the escrow agreement and put the source code for [NAME_101] in escrow, to be released on the conditions set out in cl 5 of the 2004 Agreement. I do not accept that submission, which is in the nature of an application for a mandatory injunction but is not supported by any submission as to why such an order is an appropriate remedy in the circumstances. It seems to me that damages are an appropriate remedy for the breach of [NAME_80]'s obligation to enter into that escrow agreement, and the quantification of those damages may well reflect the extent to which [NAME_103]'s conduct contributed to any resulting loss and the fact that [NAME_103] substantially ceased to grant new licences in April 2009. I would also decline injunctive relief as a matter of discretion, where [NAME_103]'s actions in proffering a draft escrow agreement that did not comply with the 2004 Agreement plainly contributed to the breach by [NAME_80]; the deposit of the source code as it exists in 2014 would be materially different from the deposit of the source code as it existed in 2004; and [NAME_103] has not in any event since April 2009 been conducting business in respect of new customers. 218The [NAME_7] also submit that, if [NAME_80] failed to enter into an escrow agreement and failed to deposit the [NAME_101] source code with a reputable escrow agent within a reasonable period, then there is an implied term in the 2004 Agreement that [NAME_80] will be obliged to provide the [NAME_101] source code direct to [NAME_103] if any of the conditions in cl 5 of the 2004 Agreement are satisfied. It does not seem to me that that suggested term complies with the requirements for implication of a term as a matter of fact as stated in BP Refinery (Westenport) above. [NAME_112] submit that it is necessary for business efficacy that [NAME_103] have some mechanism to have access to the source code for [NAME_101] if the events listed in cl 5 of the 2004 Agreement eventuate, but it had such a mechanism so far as it could at any time have sought an order requiring [NAME_80] to comply with the clause, at least if it had itself proffered a compliant escrow agreement for execution by [NAME_80]. [NAME_112] also submit that it is reasonable and equitable between the parties that [NAME_103] have some mechanism to have access to the [NAME_101] source code if [NAME_80] fails to provide services or is otherwise unable to provide a level of development, design and software [NAME_113] assistance or services in relation to [NAME_101] to meet [NAME_103]' ongoing business requirements. In my view, the suggested implied term is not necessary to give business efficacy to the contract, where the Court could order compliance with cl 5 of the 2004 Agreement in an appropriate case or alternatively award damages for the breach. The suggested clause is also by no means so obvious that it goes without saying, where it parallels the orders that might be made by the Court but excludes the discretionary factors that the Court will take into account as to whether such an order should be made. 219I also do not accept that, in any event, the conditions in the 2004 Agreement are satisfied so as to trigger any obligation to provide source code [NAME_112] submit that the conditions in cl 5 of the 2004 Agreement have been satisfied, because [NAME_115] is incapacitated from providing services due to cll 4.1, 4.2 and 7 of the [NAME_116] Agreement providing for the sale of [NAME_101] to [NAME_116]. I do not accept that submission. In oral opening submissions, [NAME_112] also sought to read the reference to "incapacity" in the 2004 Agreement, which refers to [NAME_115] rather than to [NAME_80], as triggered where [NAME_133] entered into the agreement with [NAME_116] in 2011, so (it was suggested) that they are thereafter legally incapacitated from providing the relevant services to [NAME_103]. It seems to me that a contractual prohibition on [NAME_133] providing source code under the Purchase Agreement with [NAME_116] does not "incapacitate" him or [NAME_80] from taking that step, so far as he would presently be able to take that step with [NAME_116]'s consent. Even if the proposition for which [NAME_112] contend were made good, it would not follow that [NAME_103] is then entitled to the source code as it existed in 2011 or as it exists in 2014. It would instead be entitled to damages reflecting the loss that it suffered by reason of a failure to enter into an escrow agreement at an earlier point in time, or, at best, an order requiring provision of the source code as it existed at the time of entry into the 2004 Agreement. Development services, information and assistance (Amended Statement of Claim [47]-[52]) ([NAME_7]' issues 25-27) 220The next issues identified by [NAME_112] are whether [NAME_103] had requested [NAME_80] to provide development services which it was required to provide; whether [NAME_80] failed to provide those development services; and whether [NAME_80] breached its obligation to provide information and assistance. 221In the period from July 2009, [NAME_175], who was working with [NAME_110], requested assistance from [NAME_115] in respect of various matters. By about this time, [NAME_115] was becoming uncooperative in respect of such assistance, as he accepted in cross-examination. By at least September 2009, I think it likely that he had formed a suspicion that interests associated by [NAME_104] were granting licences without making payments to [NAME_133], as was in fact the case. Version 11.561 of [NAME_101], as at about that date, introduced a new feature by which new users automatically sent an email to [NAME_115]. [NAME_115]' evidence is that he inserted the email notification feature into [NAME_101] in about September 2009, because of a concern about privacy of [NAME_101], particularly in Malaysia, although he also acknowledges that he became suspicious that [NAME_103] was entering into new agreements with customers but not passing on licence fees by late September 2009 ([NAME_5] 4.12.12 [133]-[134]). [NAME_175] protested the introduction of that feature, ostensibly on the basis that customers had not consented to it. While that proposition was true, it seems to me that an inference that [NAME_110]'s real objection to that feature was that it would identify new users, for which it had not paid any amount to [NAME_133], would at least be open, although it is not necessary to draw it in order to determine this case. 222The [NAME_7] point out that cl 4.1 of the 2004 Agreement provides that [NAME_103] can at any time and on reasonable notice request [NAME_80] to provide development services relating to the [NAME_118], and the parties will enter into a development agreement. [NAME_103] and [NAME_80] entered into two written development agreements, being Software Development Agreements dated 11 August 2004 (Ex P2 127, [NAME_89] 26.10.12, Ex P7, 3/221) and 30 May 2005 (Ex P2 140, [NAME_89] 26.10.12, Ex P7, 3/233). [NAME_112] submit that, from around 2009, [NAME_80] refused to provide development services ([NAME_89] 26.10.12 [78]-[89]; [NAME_176] 22.10.12 [12]-[13], [15], [19]; [NAME_89] 19.3.14 [152]-[162]). [NAME_112] refer to one email where [NAME_175] indicated a willingness to pay for the relevant service and asked for an estimate of time and costs ([NAME_176] 22.10.13, Ex P7, 5/tab 4, Annexure "LL" at 53). [NAME_112] also submit that [NAME_80]'s refusal to provide development services is a breach of the 2004 Agreement and caused loss, contending that [NAME_103] was compelled to engage a third party, [NAME_192], on an hourly rate to undertake development work ([NAME_165] 26.10.12, [NAME_165] 3.3.14 [31] - [33], [NAME_89] 19.3.14 [154] - [161], [NAME_176] 22.10.12 [23].) The [NAME_6] submit (in their submissions as to [NAME_103]'s allegation of conspiracy) that the evidence showed that [NAME_115] in fact continued to provide assistance to what he believed was [NAME_103] after April 2009 although that assistance was not extended to services in respect of customers for which he was not paid licence fees ([NAME_5] T286, T295; [NAME_176] 22.10.12, Annexures B (27 July 2009), C (29 July 2009) and F (11 and 13 September 2009); [NAME_89] 26.10.12, Ex P7, 3/334 (24 April 2009), 339 (4 November 2010)). 223It does not seem to me that a breach of cl 4.1 of the 2004 Agreement was established where [NAME_103] did not in fact proffer further development agreements for execution or send purchase orders, as [NAME_115] at one point suggested as an alternative. That clause is not directed to the provision of ad-hoc services in response to email requests, but to a more formal arrangement for such services documented by such agreements. Moreover, since at least April 2009, any requests for development services were not in truth made by [NAME_103], because it had substantially ceased business, but by [NAME_110] to which [NAME_80] had no obligation to provide development services. 224The [NAME_7] also submit that, under cl 3 of the 2004 Agreement, [NAME_80] was and is required to provide information and assistance when reasonably requested by [NAME_103], including assistance and staff training, and copies of all information, documentation and other tools or materials relating to [NAME_101] reasonably necessary to enable [NAME_103] to use, copy, market, resell and promote [NAME_101]. [NAME_112] submit that [NAME_80] failed to provide assistance in that it did not explain information and methodology ([NAME_89] 26.10.12 [82], [85], [87], [89]; [NAME_89] 28.1.13 [71]-[73]); took the position that there were "no notes" ([NAME_89] 26.10.12 [82]), and from time to time refused assistance ([NAME_176] 22.10.13 [19], [24]). 225In order to establish a breach of this clause, [NAME_103] would have had to establish that the particular information and assistance was reasonably requested in the circumstances and that it was reasonably necessary to enable [NAME_103] to use, copy, market, resell and promote [NAME_101]. As I noted above, from April 2009, [NAME_103] had ceased to grant licences to new customers and [NAME_110], which had no such right to information and assistance, was doing so in its place. The evidence led by [NAME_103] showed that the requests were made but not that they were reasonable in the circumstances or that the information and assistance was reasonably necessary for the relevant purpose. It is difficult to see that any such information or assistance, after April 2009, could have been reasonably requested or was reasonably necessary for that purpose where [NAME_110] rather than [NAME_103] was dealing with new clients and licence fees were no longer being paid to [NAME_80] in respect of such clients. A breach of this requirement has not been established. Confidential Information (Amended Statement of Claim [67]-[70]) ([NAME_7]' issues 28-29) 226The next issues identified by [NAME_112] are whether [NAME_103] provided [NAME_80] with confidential information and whether [NAME_80] used or disclosed the confidential information in breach of the 2004 Agreement. 227The [NAME_7] point out that cl 9 of the 2004 Agreement requires [NAME_80] to keep and maintain all of [NAME_103]'s confidential information strictly confidential; only use it for the purposes for which it was disclosed; and not disclose other than to employees, sub-contractors, legal advisers, auditors and other consultants who require the information for the purposes of that agreement. 228The [NAME_7] identify information of three kinds that they contend was provided to [NAME_127] and is confidential to [NAME_103]. First, they contend that they (or at least [NAME_103]) provided [NAME_115] with encryption software that was confidential. It appears that [NAME_115] did not draft that encryption software since, by an email dated 18 February 2008 to [NAME_103], he referred to "your" encryption software and made various criticisms of it ([NAME_89] 26.10.12, Ex P7, 3/292). [NAME_164]'s evidence is that his company, [NAME_192], created that software and that [NAME_115] then made changes to the source code for [NAME_101] so that it could run that software ([NAME_165] 3.3.14 [49]-[52]). Second, [NAME_112] contend that a T-cord truss and U-chord truss were products supplied by [NAME_103] ([NAME_89] 26.10.12 [78] and Ex P7, 3/328; [NAME_125] 8.5.14 [63], T223-224; [NAME_89] 19.3.14 [75(c)], [146]; [NAME_89] 28.1.13 [60]). It does not, however, follow that they were confidential where their shape and dimensions were presumably available to numerous users of the products. Third, they submit that CNC files were [NAME_103]'s confidential information, even if they were created by [NAME_80], because a CNC file incorporates "[[NAME_103]] and its customers' confidential information". 229The [NAME_7] point out that cl 7.3 of Software Development Agreements dated 11 August 2004 (Ex P2 127, [NAME_89] 26.10.12, Ex P7, 3/221-231; Ex P2 140, [NAME_89] 26.10.12, P7, 3/233) provide that exclusive ownership of all data files and CNC files comprising [NAME_103]'s data incorporated into the New Software shall be and remain vested in [NAME_103] (although that leaves open the question of which data had that character) and cl 10.1 of those agreements required [NAME_80] to hold and maintain all "Confidential Information" in strict confidence and as a trade secret of [NAME_103] and not to use the "Confidential Information" in whole or in part other than in accordance with the agreement. The term "Confidential Information" was in turn broadly defined in those development agreements as including, inter alia, information relating to the design, specification and content of data files and CNC files comprising [NAME_103] data incorporated into the software. 230The [NAME_7] point out that, under cll 2.1 and 4.2 of the [NAME_116] Agreement, [NAME_127] sold and transferred the Assets (as defined) and delivered possession and control of those Assets to [NAME_116]. The term "Assets" includes Software, Business Records, and any other assets and information; the term "Business Records" includes "Documentation", and the term "Documentation" includes all documentation relating to the software including all technical and marketing documentation and specifications. They submit that: "Therefore, [[NAME_115]] and [NAME_80] disclosed information in the [NAME_101] Application. This included [[NAME_103]] encryption software, T-Cord Truss, U-chord Truss and CNC files." 231I do not accept the last step of this submission. [NAME_112] point to the categories of information that [NAME_127] were obliged to deliver under the [NAME_116] Agreement and assume that they included information delivered by [NAME_103] to [NAME_133] at earlier points in time. That is certainly possible, but it is also possible that such information had been displaced by development work done by [NAME_80] between 2009 when the relationship with [NAME_103] had substantially ceased - and, indeed, [NAME_103] had substantially ceased its business - and its entry into the [NAME_116] Agreement in 2011. It does not seem to me that this claim can be established by inference at this level of generality, as distinct from a comparison of the particular information claimed to be confidential with the information in fact provided by [NAME_127] to [NAME_116]. [NAME_112] did not seek to undertake a comparison of that character. It does not seem to me that this claim has been established. Obligation of good faith (Amended Statement of Claim [71]-[74]) ([NAME_7]' issues 30-31) 232The next issues identified by [NAME_112] are whether [NAME_80] had an obligation of good faith under the 2004 Agreement and whether it breached such an obligation of good faith. 233The [NAME_7] point out that cl 13.2 of the 2004 Agreement provided that neither party may assign or transfer its rights in the 2004 Agreement or [NAME_101] without first obtaining the other party's written consent, and the other party will not unreasonably withhold such consent; and cl 13.4 of the 2004 Agreement required that each party do anything (including executing any document) and ensure that its employees and agents do anything (including executing any document) that the other party may reasonably require to give full effect to the 2004 Agreement. They also submit there is an implied term in the 2004 Agreement that each party would act in good faith and reasonably towards the other in exercising or enforcing its rights. They refer in this regard to [COMPANY_39] v [NAME_41] (1992) 26 NSLWR 234, although it should be noted that there are several subsequent decisions which deal with the extent to which such a duty should be implied and its content: see for example, Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 363-369 per Sheller JA (with whom Powell and Beazley JJA agreed); [NAME_193] Corporation above at [186]; United Group Rail Services Ltd v Rail Corporation (NSW) [2009] NSWCA 177; (2009) 74 NSWLR 618 at [58]-[61] per [NAME_58] P (with whom [NAME_194] agreed). 234Some earlier cases had expressed the view that a duty of good faith was implied by law in all commercial contracts: see for example, Overlook v Foxtel [2002] NSWSC 17 at [62] per Barrett J (as his Honour then was); Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] per Finkelstein J. However, in Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15, Giles JA (with whom [NAME_194] agreed) stated (at [191]): "I do not think the law has yet gone so far as to say that commercial contracts are a class of contracts carrying the implied terms [of a duty of good faith] as a legal incident, and the width and indeterminancy of the class of contracts would make it a large step." Several subsequent decisions have indicated that whether a duty of good faith will be implied into a contract will depend on the particular contract and the particular circumstances of the case: Council of the City of Sydney v Goldspar Australia Pty Ltd [2006] FCA 472; (2006) 230 ALR 437 at [168] per Gyles J; Insight Oceania Pty Ltd v Philips Electronics Australia Ltd [2008] NSWSC 710 at [157]-[175] per Bergin J; see also [NAME_67], "The Implied Duty of Good Faith in Australian Contract Law" (2006) 108 Australian Construction Law Newsletter 28; [NAME_57], "Good faith and Australian contract law: A practical issue and a question of theory and principle" (2011) 85 Australian Law Journal 341; [NAME_53] and [NAME_55], "20 years on from [NAME_38] - is the contractual duty of good faith any clearer?" (2012) 24 Australian Construction Law Bulletin 23. 235In Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184, Bathurst CJ (with whom Macfarlan and Meagher JJA agreed) stated (at [145]) that the content of such a duty: "... has commonly been held to embrace three related matters:

1. An obligation on the parties to co-operate to achieve the contractual objectives.

2. Compliance with honest standards of conduct.

3. Compliance with standards of conduct that are reasonable having regard to the interests of the parties." (citations omitted) Bathurst CJ also expressed the view (at [144]) that: "the obligation does not require a party to act in the interests of the other party or subordinate its own legitimate interests to those of the other party, although it does require it to have due regard to the rights and interests of the other party." A contractual duty of good faith cannot, however, impose obligations on parties that are inconsistent with the terms of the relevant agreement: Cordon Investments above at [146]; Vodafone above at [194], [208]. 236In [COMPANY_50] v [COMPANY_52] (in liq) [2014] NSWSC 382 at [160]-[161], Ball J helpfully summarised the position as follows: "The circumstances in which a court will imply a term requiring each to act in good faith remains uncertain: see Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [144] per Bathurst CJ. For discussion see, K Lewison & D Hughes, The Interpretation of Contracts in Australia, (2012, Law Book Company) at [6.14]. There is authority that the terms should be implied in all commercial contracts: see, for example, [COMPANY_39] v [NAME_41] (1992) 26 NSWLR 234 at 268 per Priestley JA. Other cases have suggested that the term should only be implied as a matter of fact in accordance with the principles stated in the [COMPANY_168] v [NAME_169] of Hastings (1977) 180 CLR 266: see eg Androvitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212 at [108]; R & J [COMPANY_195] v 155 Macquarie St [COMPANY_3] [2008] NSWSC 310; (2008) 13 BPR 25,161 at [68] per Bryson AJ; Tote Tasmania Pty Ltd v Garrott [2008] TASSC 86; (2008) 17 Tas R 320 at [16]; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 at [25] per Buchanan JA; Australian Hotels Association (NSW) v TAB Ltd [2006] NSWSC 293 at [78] per Bergin J. In that case, the implication of the term depends on the presumed intention of the parties. One feature of the implied term is that it is expressed at such a level of generality and abstraction that it can be difficult to determine its content in any particular case. Consequently, to suggest, as some cases do, that the term should be implied as a matter of law in all commercial contracts has the effect of moving the enquiry from whether a particular term should be implied in the circumstances of the case to the question of the content of the general term in light of those circumstances." 237The [NAME_7] also submit, and I accept, that, each party has an obligation to co-operate to achieve contractual objectives, particularly where the contract requires or envisages co-operation and involves an ongoing business arrangement: RPR Maintenance Pty Ltd v Marmax Investments Pty Ltd [2014] FCA 409 at [208], [212]-[213] per Griffiths J. 238The [NAME_7] identify numerous matters that they contend involved a breach of [NAME_80]'s express and implied obligations in this regard under the 2004 Agreement. First, they contend that [NAME_80] breached that obligation in respect of refusing to engage with [NAME_104]'s (or [NAME_103]'s) request for consent to assign its rights under the 2004 Agreement. The relevant obligation was, under the terms of that agreement, not unreasonably to withhold consent to an assignment. It seems to me that, for the reasons noted in paragraph 177 above, [NAME_127] would have been reasonably entitled to withhold such consent in the relevant circumstances. 239Second, [NAME_112] contend that [NAME_80] refused to engage and reasonably consider [NAME_103]'s requests relating to the escrow process in cl 5 of the 2004 Agreement. I have held above that a breach of the obligation to enter an escrow agreement is established, although that obligation attached to both [NAME_103] and [NAME_80] and each of them breached it. It does not seem to me that a further breach of duties of good faith or cooperation or to execute a document reasonably required to give effect to the 2004 Agreement are established, where the process adopted by [NAME_103] in respect of the escrow had, as I noted above, sought substantially to enlarge its rights beyond those contemplated by the 2004 Agreement. [NAME_112] also rely, as a further matter supporting a breach of a duty of good faith in this regard, on the fact that [NAME_80] delivered all copies of the source code to [NAME_116] under cl 4.2 of the [NAME_116] Agreement, so that [NAME_80] was not able to deliver the source code to the escrow agent. It does not seem to me that that course was capable of breaching such a duty, where some seven years had lapsed from the execution of the 2004 Agreement without the entry into an escrow agreement, and where [NAME_103] had ceased to grant new licences and [NAME_110] had commenced to do so without payment of licence fees to [NAME_80] from April 2009. [NAME_112] also contend that it was a breach of the 2004 Agreement for [NAME_80] to assign or transfer the [NAME_118] without first obtaining [NAME_103]'s consent, under cl 13.2 of the 2004 Agreement. A breach of that provision may give rise to a claim for damages - if [NAME_103] suffered any, where it had ceased to deal with new clients some time before - but does not seem to me to establish any independent breach of a duty of good faith that would not otherwise be established. 240Third, [NAME_112] contend that [NAME_80] did not reasonably consider [NAME_103]'s requests for development services. [NAME_112] also point out that cl 7.1 of the [NAME_116] Agreement restricted [NAME_115]' and [NAME_80]'s ability to provide development services. I have held above that [NAME_112] have not established a breach of the express provision of the 2004 Agreement dealing with the provision of such services, and it does not seem to me that conduct that did not breach that provision can be recharacterised as a breach by [NAME_80] of a duty of good faith, particularly where [NAME_103] had ceased to grant new licences and [NAME_110] had commenced to do so without payment of licence fees to [NAME_80] from April 2009. 241Fourth, [NAME_112] repeat a matter on which they previously relied to support the second suggested breach of the duty of good faith by pointing out that [NAME_80] did not seek [NAME_103]'s consent before assigning (or, as [NAME_112] would have it, purporting to assign) its rights under the 2004 Agreement and in [NAME_101] to [NAME_116], as required by cl 13.2 of the 2004 Agreement. [NAME_112] also observe, in a criticism that reads oddly given [NAME_104]'s lack of transparency in respect of licences granted by [NAME_110] after April 2009, that "[NAME_80] did not even disclose the deal to [[NAME_103]]". As I have noted above, a breach of that provision may give rise to a claim for damages - if [NAME_103] suffered any, where it had ceased to deal with new clients for April 2009 - but does not seem to me to establish any independent breach of a duty of good faith that would not otherwise be established. 242Fifth, [NAME_112] contend that [NAME_80]'s failure to engage in the dispute resolution procedure under cl 10 of the 2004 Agreement and its termination of the 2004 Agreement amounted to a breach of a duty of good faith. There is a dispute between the parties as to their dealings in respect of that mediation proposal, and the terms on which [NAME_116] would have been prepared to engage in a mediation, but I do not consider it necessary to determine that dispute in order to address this claim. It does not seem to me that this submission adds anything to any breach of cl 10 of the 2004 Agreement that would otherwise be established, and I do not consider that a breach of the duty of good faith is established by it, again in the context that [NAME_103] had ceased to grant new licences and [NAME_110] had commenced to do so without payment of licence fees to [NAME_80] from April 2009. 243Sixth, [NAME_112] contend that [NAME_80] breached a duty of good faith by not seeking a novation of the 2004 Agreement so that [NAME_103] would have a direct contractual relationship with [NAME_116]. [NAME_112] do not point to any case law which has treated a failure by one contracting party to novate rather than assign a right under the contract to a third party as a breach of a duty of good faith, although the two forms of transaction would typically have different legal consequences, and the duty of good faith does not, even on the widest view, require one contracting party to subordinate its interests to the other's interests. This breach is also not established. 244Seventh, [NAME_112] contend that [NAME_80] purported to terminate the 2004 Agreement for breaches of that agreement that, they contend, [NAME_80] had been aware of for more than two years. I do not accept the premise of this submission where [NAME_104] and [NAME_103] had not, in fact, disclosed to [NAME_133] in any direct way that [NAME_103] had ceased to grant new licences and [NAME_110] had commenced to do so without payment of licence fees to [NAME_80] from April 2009. 245Next, [NAME_112] contend that [NAME_80] did not provide [NAME_103] with updates that were compatible with [NAME_119] version 6.6, even though the updates were available and it was required to make such updates immediately available under cl 2.4 of the 2004 Agreement, and it warranted that [NAME_101] would be compatible with [NAME_119] under cl 2.4(c) of the 2004 Agreement. This proposition merely recharacterises the suggested breach of cl 2.4 of the 2004 Agreement as a breach of a duty of good faith. That breach is not established for the same reasons that the breach of cl 2.4 of the 2004 Agreement is not established. 246Next, [NAME_112] contend that [NAME_115] represented to a third party that he or [NAME_80] had a contract with [NAME_103] and that [NAME_103] had not purchased software since 2007, by an email dated 22 December 2011 (Ex P2 371, [NAME_89] 19.3.14 JP4-M.) [NAME_112] characterise this email as a representation that the 2004 Agreement did not exist and [NAME_103] did not have any rights. It does not seem to me that the email contained a representation that the 2004 Agreement did not exist, where it expressly referred to a "contract" with [NAME_103]. The proposition that [NAME_103] had not "purchased software" since 2007 was not correct in respect of its date, although [NAME_103] had not paid licence fees since at least April 2009. The error or overstatement in that email does not seem to amount to a breach of a contractual duty of good faith. 247For these reasons, the claim for a breach of a duty of good faith is not established. [NAME_7]' other claims 248The [NAME_7] also plead that [NAME_80], [NAME_5] and [NAME_116], as the case may be, have conspired to cause harm to [NAME_103] (paragraphs 78-83 of the Amended Statement of Claim); have engaged in misleading or deceptive conduct in respect of representations made on a website and to customers and potential customers (paragraphs 84-96 of the Amended Statement of Claim); have engaged in unconscionable conduct (paragraphs 97-111 of the Statement of Claim); have committed the tort of inducing breach of contract, in respect of an allegation that [NAME_80]'s entry into the [NAME_116] Agreement breached the 2004 Agreement, and that [NAME_116] induced or procured [NAME_80] to enter into the [NAME_116] Agreement (paragraphs 112-116 of the Amended Statement of Claim) and in respect of the purported termination of the 2004 Agreement (paragraphs 117-120 of the Amended Statement of Claim) and have made groundless threats of copyright infringement (paragraphs 122-125 of the Amended Statement of Claim). Tort of conspiracy (Amended Statement of Claim [78]-[83]) ([NAME_7]' issues 32-35 (where first occurring)) 249The [NAME_7] identify the issues in respect of their claim for conspiracy as whether the [NAME_6] combined to perform overt acts; whether those overt acts were unlawful; whether the [NAME_6] combined to perform any such unlawful overt acts pursuant to an agreement with a purpose of causing harm to [NAME_112] and, if not, whether the [NAME_6] combined to perform those lawful overt acts pursuant to an agreement with the sole or dominant purpose of causing harm to [NAME_103]. [NAME_112] rely on each of the allegedly unlawful overt acts set out in the particulars to paragraph 79 of the Amended Statement of Claim. Although I have referred to the "[NAME_7]" in this summary of the allegation, it should be noted that [NAME_102] and [NAME_103] (not [NAME_110]) are [NAME_112] in the proceedings and that the claim for conspiracy is brought only by [NAME_103] and not by [NAME_102], so that matters involving [NAME_102] and [NAME_110] will generally be irrelevant to that claim. 250The elements of the tort of conspiracy were summarised by [NAME_68] J in Ballard v Multiplex [2012] NSWSC 426 at [65]-[69] as follows: "At common law, the parties to an agreement may incur civil liability to a third party if by their agreement they "combine" for the purpose of causing harm to that third party; if they execute their agreement by the performance of overt acts; and if thereby the third party does suffer harm. An actionable conspiracy may be one to be performed by legal or by illegal acts. In the first category, it must be the sole or predominant purpose of the conspiracy to cause harm to the third party. In the second category, it must be a purpose of the conspiracy to cause harm to the third party. To prove the (or a) purpose of a conspiracy, it must be shown either that the parties agreed on that purpose or that one party, having that purpose, made it known to the other or others, and that the other or others, having that knowledge, joined or continued with or performed the conspiracy. The purpose of a conspiracy (or combination) is not necessarily to be identified with its immediate result. For example, merchants may combine for the purpose of enhancing their business and profits. The inevitable result of that combination may be that a competitor is ruined. Indeed, the ruin of a competitor may be the means by which they intend to achieve their purpose. But the law seems to recognise that such a combination would not be actionable (leaving aside, of course, any statutory prohibitions), because the purpose was lawful even though both the result and the means to the achievement of that purpose was the ruin of a competitor. See Mogul Steamship Co v McGregor Gow & Co [1892] AC 25. As Viscount Simon LC put it in Crofter Hand Woven Harris Tweed Co v Veitch [1941] UKHL 2; [1942] AC 435 at 445, "the test is not what is the natural result to [NAME_112] of such combined action, or what is the resulting damage which the [NAME_6] realise or should realise will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not consequence that matters, but purpose..." 251The [NAME_6] submit that [NAME_103] has not made out and could not make out the elements of conspiracy and refer to the identification of those elements by Foster J in [NAME_26] v Commonwealth of Australia [2014] FCA 552 at [69]-[75] (referring in particular to McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 at 361-362 per Dixon J and at 398-403 per Evatt J) as requiring that the [NAME_6] to such a claim be party to a combination of acts whose sole, true, dominant or main purpose was the wilful infliction of damage upon the plaintiff and that the combination possesses the additional character or quality of being malicious. The [NAME_6] submit that the adoption of a course that necessarily interferes with a plaintiff in the exercise of its business and thus injures it is not enough to establish conspiracy and that it is not enough that damage is intended if the motive that actuates the [NAME_6] is not the desire to inflict injury. 252HSFS identifies several overt acts that are said to constitute the basis of the conspiracy, namely (1) the alleged breaches of the 2004 Agreement on which [NAME_112] rely elsewhere in their claims (failure to deposit escrow code, failure to provide updates and development services, and the entry by [NAME_80] into an agreement granting a non-exclusive licence to [NAME_116] in 2005); (2) the entry into the [NAME_116] Agreement in 2011, the provision of source code to [NAME_116] and assignment of rights to [NAME_116] without [NAME_103]'s consent; (3) [NAME_116] making representations to third parties that [NAME_112] did not have rights to [NAME_101] and later that there would be litigation involving [NAME_103] and that third parties should acquire products from [NAME_116] (Ex P2 371); and (4) the purported termination of the 2004 Agreement. I have reached factual findings in respect of several of those matters above and will not repeat those findings here. 253HSFS contends that the relevant acts were unlawful, in the sense that they were a breach of contract and not an act that the [NAME_6] were at liberty to do, and gave [NAME_112] an actionable claim against the [NAME_6]: Dresna Pty Ltd v Misu Nominees [2004] FCAFC 169 at [16] per Kiefel and Jacobson JJ. I have addressed the question of breach of contract by [NAME_127] above and do not repeat the analysis of that issue. I have held that a breach of cl 5 of the 2004 Agreement was established in respect of the failure to enter an escrow agreement, although I noted that [NAME_103]'s approach to the escrow agreement contributed to that result and it was also in breach of that clause; that the assignment of [NAME_80]'s rights under the 2004 Agreement and in the [NAME_118] to [NAME_116] without [NAME_103]'s consent breached the 2004 Agreement, although I accept [NAME_115]' evidence that he then understood (I interpolate, incorrectly) that agreement had lapsed at the end of the seven-year period referred to in that agreement; and that [NAME_80]'s termination of the 2004 Agreement was not effective, both because [NAME_103] was not under an obligation to pay licence fees for licences it had not granted (albeit, on my findings, [NAME_110] was in breach of copyright in that regard) and because [NAME_80] had assigned its rights under that agreement to [NAME_116]. It follows that several of the relevant acts were unlawful, in the sense that they were in breach of contract by [NAME_115] and/or [NAME_80]. No breach of contract is established against [NAME_116] since it was not party to any contract with [NAME_103], either before or after the assignment of the rights under the 2004 Agreement to it. 254HSFS also contends that [NAME_116]'s representations during the term of the 2004 Agreement that [NAME_103] was infringing copyright were unlawful as they were contrary to s 202 of the Copyright Act giving [NAME_103] an actionable claim against [NAME_116]. This allegation relies on a communication from [NAME_131] to [COMPANY_136] on 21 December 2011 (Ex P2 371) which refers to a "court battle looming between [[NAME_115]] and SFS[I]" as to the right to use the source code". [NAME_112] refer to [NAME_131]'s evidence as support for the proposition that the claim was made in relation to [NAME_103]; however, I consider the contemporaneous email is a more reliable indicator of the content of the conversation which was directed to [NAME_110]'s position, and that finding is supported by the fact that [NAME_110] rather than [NAME_103] was then active in the market. The findings that I have reached above would have the result that an allegation that [NAME_103] was infringing copyright would not have been correct, since it had substantially ceased business, was not dealing with new clients since April 2009 and any continuing sub-licenses granted by it to its existing customers, at the expiry of the seven year term, were permitted by the 2004 Agreement. However, to the extent the communication involved an implied allegation of infringement of copyright, that allegation was directed against [NAME_110] which does not bring a claim in conspiracy and, on my findings, was justified since [NAME_110] was in fact infringing that copyright and would not have contravened that section. 255HSFS accepts that, in order to establish a claim for conspiracy committed by unlawful means, it must establish that one of the purposes of the [NAME_6] was to harm HSFS (Williams v Husey [1959] HCA 51; (1959) 103 CLR 30) and it points out that it is sufficient if one of the parties had the purpose, made it known to the others, and the others having that knowledge, joined in or continued with or performed the conspiracy ([NAME_196] v [NAME_197] above at [66], [73]). [NAME_103] refers to numerous matters on which it relies to support a finding that [NAME_115], [NAME_80] and [NAME_116] acted together in taking the relevant acts and, at least implicitly, that one of the purposes of those acts was to harm [NAME_103]. I have had regard to all of the matters referred to, many of which are addressed elsewhere in this judgment, but I do not consider it necessary to deal with them individually at length in order to explain the findings that I have reached as to this issue. I will, however, make several brief comments about them. [NAME_103] submits, and I accept, that it can be inferred that [NAME_115], [NAME_80] and [NAME_116] acted together in respect of the purported termination of the 2004 Agreement, and they did not contend to the contrary. [NAME_103] characterises the claim by [NAME_80] for unpaid licence fees of "only $39,000 + GST" that had been outstanding for up to two years as involving a "relatively minor breach" of the 2004 Agreement. I do not accept the characterisation of the non-payment of that amount for that period as "minor". [NAME_103] also points to communication(s) by [NAME_131], for [NAME_116], to customers and potential customers referring "court battles" about [NAME_103]'s right to use [NAME_101]. As I noted above, its seems to me that the relevant communication was directed to [NAME_110] rather than [NAME_103]. That communication also seems to me to involve somewhat aggressive competitive conduct, which was intended to advance [NAME_116]'s commercial interests rather than to damage [NAME_103]. [NAME_103] submits that [NAME_131] held "animus" against [NAME_104], and I accept that the evidence indicated at least that [NAME_131] did not hold [NAME_104] in high regard. It does not seem to me that matter, alone or with other matters, including the criticisms that [NAME_103] makes of [NAME_131]'s demeanour or [NAME_115]' evidence (to which I have referred above) establishes a purpose of harming [NAME_103]. 256I have had regard to all of the matters to which [NAME_112] refer. I do not consider that they, or the evidence generally, establishes that one of the purposes of the entry into the [NAME_116] Agreement or the termination of the 2004 Agreement was to harm [NAME_103]. So far as the entry into the [NAME_116] Agreement in October 2011, by which [NAME_127] sold their business including [NAME_101] to [NAME_116] is concerned, the [NAME_6] contend that that was a commercial decision that had nothing to do with [NAME_103]. [NAME_115]' evidence was that [NAME_116] (or its predecessor) had been offering to purchase [NAME_101] from [NAME_127] since the time of the memorandum of understanding was entered into in September 2005 (Ex P2, pp 154Aff). It seems to me that the purpose of [NAME_127] in respect of entry into the [NAME_116] Agreement was to seek to realise value for [NAME_101] and the purpose of [NAME_116] in entry into the [NAME_116] Agreement was to take advantage of the commercial opportunities that ownership of [NAME_101] might offer. The transaction would have had no impact (on the findings that I have reached) on the sub-licences that [NAME_103] granted to its customers prior to April 2009, which were preserved under the 2004 Agreement, and it was not dealing with new customers after April 2009. No doubt, any competitive advantage obtained by [NAME_116] might give rise to a consequential disadvantage to [NAME_110], which had largely assumed [NAME_103]'s business from at least April 2009. However, that is a consequence of advancing [NAME_116]'s interests in a competitive market and does not establish any purpose of damaging [NAME_110], which does not in any event bring a conspiracy claim. So far as [NAME_127]'s failure to seek [NAME_103]'s consent for the transfer of [NAME_101] by entering into the [NAME_116] Agreement in October 2011 is concerned, the [NAME_6] point to [NAME_104]'s evidence that the last licence granted by [NAME_103] was in February 2009 (T100, 113); that [NAME_103] was not 'doing any business' by April 2009 (T97-98,114); and thereafter, all licences and renewals were granted by [NAME_110]. The [NAME_6] also point out that [NAME_103] ultimately consented to the sale to [NAME_116], which, on [NAME_112]' case, includes the assignment of the 2004 Agreement (Amended Statement of Claim [43], [58], [65]). 257HSFS also contests the validity of termination of the 2004 Agreement on that basis that [NAME_110], rather than [NAME_103], had granted the relevant licences. I do not accept [NAME_103]'s submission that that was done "in full view" of the market, since [NAME_103], [NAME_110] and [NAME_104] were not transparent, at least from April 2009 until December 2012, as to the number of licences granted or the basis on which they were granted. I also do not accept that the fact that the basis of termination of the 2004 Agreement on which the [NAME_6] relied has ultimately not been established supports any inference of an intention to harm [NAME_103], given the complexity of the relevant legal issues. It seems to me that the purpose of termination of the 2004 Agreement was defensive, so as to seek to preserve the [NAME_6]' rights against an apprehended (and, on my findings in respect of [NAME_110], existing) copyright infringement, and preserve the value of the asset that [NAME_116] had purchased against such use, rather than to harm [NAME_103]. 258HSFS also accepts that a conspiracy committed by lawful means can only be established if the sole, true, or dominating or main purpose of the conspiracy is to harm the plaintiff: [redacted] 259The [NAME_6] refer to the oral evidence of [NAME_104] (T97-98, 100; 104, 106, 108-109, 113-114) and submit that [NAME_104]'s decision to cease to undertake business in [NAME_103] by at least April 2009 had nothing to do with their conduct. [NAME_103] contends that it has a claim even if it is not currently trading, since it is still a registered company and has the ability to trade (Ex P2 106) and that it still has market presence and it still appears at trade shows (albeit, I interpolate, together with [NAME_110]) so it has goodwill and reputation (T153). It does not seem to me that it has been established that any of the acts alleged to give rise to the relevant conspiracy caused any damage to [NAME_103] in that regard. [NAME_103] also submits that it has valuable rights under the 2004 Agreement. However, [NAME_103] is not using those rights in respect of new customers; and [NAME_112] do not contend that customers' rights to use software previously licensed to them are affected by the purported termination of the 2004 Agreement. 260The claim for conspiracy therefore fails. Misleading or deceptive conduct - website and representations to customers and potential customers (Amended Statement of Claim [6], [84]-[96]) ([NAME_7]' issues 35 (where second occurring) - 41) 261The [NAME_7] identify the issues in respect of these claims as whether [NAME_116] was engaged in trade or commerce between Australia and another country or engaged in conduct involving the use of telegraphic or telephonic services; whether [NAME_116] made or was involved in making representations on a specified website; whether [NAME_116] made certain representations to customers and potential customers; and whether those representations were misleading or deceptive. The [NAME_6] admit making the alleged representations. They submit that whether they are false will follow the determination of the Court on the contract claim and that, if [NAME_112]' case in breach of contract fails, then the ancillary claims for misleading or deceptive conduct must also fail. 262The [NAME_7] identify an issue whether [NAME_116] was engaged in trade or commerce between Australia and another country; or engaging in conduct involving the use of telegraphic or telephonic services. They submit that [NAME_116], although incorporated in New Zealand, engaged in trade or commerce in Australia or between Australia and another country for the purposes of s 6(2)(a)(i) of the Competition and Consumer Act 2010 (Cth), by its entry into an agreement with [NAME_80] by which [NAME_80] granted [NAME_116] a non-exclusive licence to resell copies of [NAME_101] ([NAME_5] 4.12.12 [124]) and by its purchase of [NAME_115]' and [NAME_80]'s business which was located in Australia and where the governing law of the [NAME_116] Agreement is the law of Australia ([NAME_116] Agreement cl 9.11; Ex P2 330). They also submit that [NAME_116]'s conduct involves an internet website, and therefore involves the use of telegraphic or telephonic services, at least so far as that website was accessible in Australia, for the purposes of s 6(3)(a) of the Competition and Consumer Act. I do not understand [NAME_116] to have contended to the contrary. 263The [NAME_7] submit that [NAME_116] made representations or was involved in making representations on a website with a domain name referring to "Quikseries" (Ex P2 394) which is registered to [COMPANY_92] not [NAME_116]. They submit that [NAME_116] was making the representations or was involved in making the representations, because the website says "[NAME_83] acquired the rights" and refers to "our rights" and [NAME_116] acquired those rights under the [NAME_116] Agreement and claims that it owns copyright; and the website says "our lawyers" have written to the company and those lawyers said they acted for [NAME_116] (Ex P2 361, 389). I do not accept this submission, since the statements on the website can readily be understood as referring to the [NAME_83] group of companies. It seems to me that, where the representations were made on a website registered to [COMPANY_92], it and not [NAME_116] made those representations, and it is not a defendant in the proceedings. This claim should fail for that reason alone. 264The [NAME_7] contend that several representations were misleading or deceptive, namely, that dealing with [NAME_116] is the "only" way to ensure that users have the legal right to use [NAME_101]; that users "need" to obtain a "valid" licence "exclusively" from [NAME_116]; and "another company" has claimed that it is "entitled" to grant licences and "our lawyers have formally written" to this company. I accept [NAME_112]' submission that the statements on the website represent that [NAME_102] and [NAME_103] do not have rights in [NAME_101], with the qualification that I understand those representations to be directed to the right to grant licences to new customers or renew expired licences. [NAME_112] submit those statements are misleading or deceptive because [NAME_102] owns or has a non-exclusive licence in [NAME_101] under the 2002 Agreement; [NAME_102] and [NAME_103] have an implied licence in [NAME_101]; and [NAME_103] has a non-exclusive licence in [NAME_101] under the 2004 Agreement. 265The approach to be adopted in determining whether conduct amounts to misleading or deceptive conduct is well-established. Whether conduct is misleading or deceptive is a question of fact and is determined by whether, viewed objectively, the relevant conduct was misleading or deceptive or likely to mislead or deceive, and conduct is likely to mislead or deceive if there is a real and not remote chance or possibility that a person is likely to be misled or deceived: [NAME_49] Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199 per Deane and Fitzgerald JJ; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 197 per Gibbs CJ, 216 per Brennan J; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [112] per McHugh J. 266The substance of the relevant representation was that a licence issued by [NAME_116] was the "only" way to ensure that users have the legal right to use [NAME_101] and that persons who wished to obtain a "valid" licence could only obtain it "exclusively" from [NAME_116]. I have held above that [NAME_110] did not have any rights to [NAME_101] and [NAME_102] and [NAME_103] did not, at that time, have any rights in [NAME_101] arising under the 2002 Agreement or by an implied licence, and the representation was accurate so far as it depended on those matters. It was inaccurate, and potentially misleading or deceptive or likely to mislead or deceive, so far as it suggested that [NAME_103] could not have granted rights to [NAME_101] arising under the 2004 Agreement, so far as it continued beyond the seven-year period as noted above. However, it does not seem to me that [NAME_112] have in fact made good a claim for misleading or deceptive conduct in that regard, because, while [NAME_103] could have taken that course, it was not then doing so. The statement that [NAME_116] was the only source of a valid licence for [NAME_101] was accurate, as a matter of substance, so far as [NAME_103] was not granting such rights, although it could have done so, and [NAME_110], which was purporting to grant such rights, had no entitlement to do so. There seems to be no basis for a suggestion that the further representations that "another company" (relevantly, [NAME_110]) had claimed that it was "entitled" to grant licences and that "our lawyers have formally written" to this company were not correct. 267The [NAME_7] also contend that [NAME_116] made statements to third parties (or at least one party addressed by the evidence) that there was a "court battle looming" about [NAME_103]' right to use [NAME_101] and that any customer who wanted the right to use [NAME_101] should sign with [NAME_83] "so as not to be caught up in the crossfire" (Ex P2 371; [NAME_89] 19.3.14 JP4-M). [NAME_116] and [NAME_131] accept that he made a telephone call to that entity (Defence [92(b)] and [NAME_130] 31.10.13 [78]) and I find that he encouraged that entity to obtain a licence from [NAME_116]. [NAME_112] submit that [NAME_116]'s statement was a representation that [NAME_103] did not have the rights to [NAME_101] as at 21 December 2011. The representation that a court battle was looming was plainly correct. Assuming, without deciding, that the representation that any customer who wanted to sign with [NAME_101] should sign with [NAME_116] "so as not to be caught up in the crossfire" can be read as anything more than a sales pitch, it seems to me not to have been directed to the question whether [NAME_103] had legal rights to [NAME_101], which would have been of no interest to a potential customer for its own sake, but to the practical question where a potential customer could obtain a licence for [NAME_101]. To the extent the representation conveyed that licences could be obtained from [NAME_116] rather than [NAME_103], it does not seem to be misleading or deceptive. Such rights could be obtained from [NAME_116] which had acquired the ability to grant them under the [NAME_116] Agreement and they could not be obtained from [NAME_103], because it was not then granting such rights, although it could have done so, and [NAME_110] which was then purporting to grant such rights had no entitlement to do so 268The [NAME_7]' claim for misleading or deceptive conduct is therefore not established. [NAME_80] (Amended Statement of Claim [5], [97]-[105]) ([NAME_7]' issues 42-47) 269The [NAME_7] identify the issues in respect of this claim as whether [NAME_80] was a corporation engaged in trade or commerce within the meaning of ss 20 and 21 of the [NAME_8]; whether [NAME_112] were under a special disadvantage that was known to [NAME_80]; whether [NAME_80] unconscientiously took advantage of [NAME_112]' special disadvantage within the meaning of the unwritten law for the purposes of s 20 of the [NAME_8]; whether [NAME_80] has engaged in conduct in connection with supply or possible supply of goods or services to a person within the meaning of s 21 of the [NAME_8]; and [NAME_80] has engaged in conduct that is in all the circumstances unconscionable within the meaning of s 21 of the [NAME_8]. The [NAME_6] submit that this claim must fail because neither [NAME_102] nor [NAME_103] had any special disadvantage, where [NAME_104] engaged his own solicitors to draft the various agreements (T123-124) and there are software packages other than [NAME_101] that could be utilised by [NAME_112] in their business ([NAME_165] T229; [NAME_89] T77). 270This claim firstly relies on s 20 of the [NAME_8] which prohibits a person, in trade or commerce, engaging in conduct that is unconscionable within the meaning of the unwritten law from time to time. The section does not apply to conduct that is prohibited by s 21 of the [NAME_8] to which I will refer below. [NAME_112] refer to the well-established principle that the Court may grant relief on the ground of unconscionable conduct where a party makes unconscientious use of their superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage: [COMPANY_24] Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at 462 per Mason J. In Australian Competition and Consumer Commission v CG Berbartis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51, the High Court held that unconscionability is not established merely because a party takes advantage of a superior bargaining position in its dealings with another party. Several later cases suggest that special disadvantage may need to be established in order to establish unconscionability under this section and corresponding sections, and [NAME_112] appear to proceed on that basis in their submissions: for example, Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCAFC 4; (2002) 117 FCR 301 at [48]; AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2004] FCA 1330; (2004) 139 FCR 223 at [72] per Heerey J. The concept of special disadvantage can include at least a disadvantage which "seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to have known of the existence of that condition or circumstances and of its effect on the innocent party": [COMPANY_24] Australia Ltd v [NAME_200] above at 461; see also Credit Connect Pty Ltd v Carney [2010] NSWSC 910 at [48] per [NAME_201]. 271The [NAME_7] submit that [NAME_102] and [NAME_103] were under a "special disadvantage" that was known to [NAME_80] in that, first, [NAME_102] and [NAME_103] were "locked into" [NAME_101] as part of [NAME_112]' product offering, the Hayes Base System. [NAME_112] refer to matters both prior to and after the shift of [NAME_103]'s business of dealing with new customers to [NAME_110] at least from April 2009 to support this proposition. It will be necessary to separate those matters by time period, in a manner that [NAME_112] do not, for reasons that will emerge below. So far as [NAME_112] rely on events prior to April 2009, they point to [NAME_104]'s evidence that he explained to [NAME_115] when he first met him in 2002 that he wanted to use [NAME_101] as a component of a steel frame manufacturing system, and point out that intention is reflected in Recital B of the 2002 Agreement to which I have referred above and in other documents provided by [NAME_104] to [NAME_115] in 2002. [NAME_112] point out that [NAME_102] and later [NAME_103] "licensed" [NAME_101] (although that submission should be qualified by the findings as to the nature of [NAME_137] rights to which I have referred above) and paid significant amounts for development, modifications and services relating to [NAME_101]. They point out, and I accept, that the Hayes Base System was developed using [NAME_101] as a component and other software programs that interoperated with [NAME_101] were also developed. 272The [NAME_7] also submit that they were "locked in" to [NAME_119], although that submission depended upon the premises both that they were "locked in" to [NAME_101] and that no other CAD program would operate with [NAME_101]. It does not seem to me that [NAME_112] have established that they are dependent on [NAME_101] or [NAME_119] in the manner that they indicate. I accept that their use of [NAME_101] was plainly advantageous to them, but it has not been established that they could not access other substitutable products in the market if they were not permitted to use [NAME_101], or that such other products would only operate with [NAME_119]. 273I do not accept that a "special disadvantage" was established in respect of the matters to which I have referred above, prior to April 2009, because any vulnerability which [NAME_112] might otherwise have had as a result of these matters was addressed by the facts that they were successful commercial entities in a competitive market, who were dealing with [NAME_115] who was plainly not a sophisticated businessperson and [NAME_80] which was a small business; that they, or [NAME_104], had drafted the relevant agreements in a manner that would adequately protect their interests; that [NAME_103] was legally represented and [NAME_127] were not in entry into the 2004 Agreement; and that [NAME_103] and [NAME_104] had sufficient sophistication to subsequently seek, albeit unsuccessfully, to substantially improve [NAME_103]'s position under the proposed draft escrow agreement, and then to shift [NAME_103]'s business of dealing with new customers to [NAME_110] in April 2009 with the result that [NAME_110] licensed (or purportedly licensed) [NAME_101] to customers but did not pay licence fees to [NAME_133] in doing so. 274So far as the position after April 2009 is concerned, special disadvantage is not established because [NAME_103] has had no substantial business since at least April 2009, and is under no present disadvantage in any substantive relationship with [NAME_80] since that date, where its business substantially ceased at that date and [NAME_110] commenced dealing with customers in a manner that avoided the need to pay licence fees under the 2004 Agreement. If it were relevant, [NAME_110] is also not under any disadvantage in any relationship with [NAME_80], because it has no such relationship; and, to the extent that [NAME_110] (rather than [NAME_112]) offered a product that incorporates [NAME_101], any vulnerability on its part arose from its failure to seek any rights to do so from [NAME_80], and its apparent wish to do so without paying licence fees that would likely have been payable had it sought such rights, not from any conduct of [NAME_133]. 275The [NAME_7] next identify the question whether, if [NAME_134] is under any special disadvantage, [NAME_80] unconscientiously took advantage of their special disadvantage in a manner that was unconscionable within the meaning of the unwritten law within the meaning of s 20 of the [NAME_8]. This question does not arise, since [NAME_112] have not established that they are under any special disadvantage in dealing with [NAME_80] for the reasons noted above. I will nonetheless briefly refer to [NAME_112]' submissions as to this matter. 276The [NAME_7] contend that [NAME_80] unconscientiously took advantage of their special disadvantage (which, as noted above, has not been established) by reason of the same matters that they relied on to establish breach of contract and conspiracy. These include (without repeating the full list of matters) that (they contend) [NAME_80] did not provide available updates as required by cl 2.4 of the 2004 Agreement; [NAME_80] did not provide development services as required by cl 4 of the 2004 Agreement; [NAME_80] did not deposit source code with an escrow agent and enter into an escrow agreement as required by cl 5 of the 2004 Agreement and failed to offer alternative escrow agents or negotiate a draft escrow agreement; [NAME_80] entered into the [NAME_116] Agreement and agreed to deliver possession and control of the source code to [NAME_116] and did not take any steps to novate the 2004 Agreement to [NAME_116] or seek [NAME_103]'s consent to the assignment of the 2004 Agreement to [NAME_116]; [NAME_80] did not provide assistance to [NAME_103] in relation to the release of [NAME_119] version 7; [NAME_80] purported to give notice that [NAME_103] was in breach of the 2004 Agreement; [NAME_80] purported to terminate the 2004 Agreement without following the dispute resolution process in cl 10 of that agreement; and [NAME_80] purported to terminate the 2004 Agreement for [NAME_103] failing to pay licence fees "in circumstances where it had not taken any steps previously to chase up the licence fees, the licence fees were relatively insignificant and the failure to pay licence fees was up to 2 years old". [NAME_112] also submit that: This "accumulation of incidents" discloses a case of unreasonable and unfair behaviour that amounts to unconscionable conduct - Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Ltd (2000) 104 FCR 253 at [51] per Sundberg J. 277I have addressed these matters above in respect of the claims for breach of contract and conspiracy. I have held that some of those matters did not breach the 2004 Agreement, although others did, and that [NAME_112]' claims in conspiracy are not established as to those matters. So far as these matters are reformulated as a claim for unconscionability based on special disadvantage, they do not succeed because "special disadvantage" is not established at the relevant time. I also do not consider that these matters, separately or together, involve any element of unconscientious conduct on the part of [NAME_133], a fortiori in circumstances that, from April 2009, the licensing business of [NAME_104]'s companies was being conducted substantially through [NAME_110] which had no relationship with [NAME_133]. 278Next, [NAME_112] bring a claim for unconscionability in the supply of goods under s 21 of the [NAME_8]. It appears that the relevant form of that section is that which applied prior to amendments made by the Competition and Consumer Legislation Amendment Act 2011 (Cth) with effect from 1 January 2012, although the parties did not address that matter in submissions. The former section prohibited a person, in trade or commerce, in connection with the supply or possible supply of goods or services to a person (other than a listed [NAME_42] company), engaging in conduct that is, in all the circumstances, unconscionable. Section 21(2) set out a list of factors to which the Court may have regard in determining whether the section was contravened, which include the relative strengths of the bargaining positions of supplier and consumer; the intelligibility of the relevant documents; undue influence or unfair tactics; and the amount for which a consumer could have acquired identical or equivalent services from another supplier. 279I accept that the supply of software is a supply of goods, because "goods" includes is defined to include computer software in s 2 of the [NAME_8], and that [NAME_80]'s licensing [NAME_101] to [NAME_103], and the provision of other services to [NAME_103] under the 2004 Agreement, were within the scope of that section. I do not understand [NAME_80] to have contended to the contrary. However, s 21(5) of the then [NAME_8] provided that a reference to "goods or services" in the section is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. The parties did not address submissions to this limitation. I find it difficult to see that specialist computer software used in the operation of rollforming machines for, inter alia, roofing components could possibly fall within this concept and within the scope of the section. There is also a question, also not addressed by the parties, as to whether the relevant conduct would be excluded from the section, by s 21(6) of the [NAME_8], so far as the software was supplied for the purposes of resupply by [NAME_134] or transforming it (by incorporating it the Hayes Base System) in trade or commerce. However, it is not necessary to address these matters given the findings that I have reached below. 280The [NAME_7] submit, and I accept, that the meaning of "unconscionability" in s 21 of the [NAME_8] is not limited to the meaning of the word according to established principles of common law and equity, and involves conduct which is clearly unfair or unreasonable, normally involving some moral fault or moral responsibility: Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; 148 FCR 132 at [30]; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 at [291] per [NAME_58] P (with whom Bathurst CJ and Campbell JA agreed); [NAME_32] v [NAME_33] (No 2) [2012] NSWSC 61 at [21] per Ball J. [NAME_112] rely on the conduct to which I have referred above in respect of their claim under s 20 of the [NAME_8] to support their further claim under this section. They do not, in submissions, point to any particular matter which would indicate a different result in applying the two sections to the same conduct, although I accept, of course, that is a possibility where the terms of the sections differ. In this case, it does not seem to me that the conduct on which [NAME_112] rely on the part of [NAME_80] has a quality of clear unfairness or involved moral fault so as to give rise to a contravention of the section, for all the reasons I have noted above in addressing the conduct on which [NAME_112] rely. 281The [NAME_7] also rely on: "[NAME_80]'s unreasonable failure to disclose [NAME_80]'s intended conduct that would affect [[NAME_103]'s] interest and unreasonably failed to disclose any risks to [[NAME_103]] arising from [[NAME_103]'s] conduct that [NAME_80] should have foreseen would not be apparent to [[NAME_103]]." This submission does not identify which conduct of [NAME_80] it is intended to refer to or when or why the suggested disclosure should have been made. If the proposition is directed to a failure to disclose [NAME_80]'s intended entry into the [NAME_116] Agreement, then it seems to me that [NAME_80]'s not disclosing that matter does not have a quality of clear unfairness or involve moral fault so as to give rise to a contravention of the section, where [NAME_103] had not paid licence fees to [NAME_80] for a considerable period prior to the transaction and had, without disclosure on its part to [NAME_133], substantially ceased to conduct business when [NAME_110] began to sublicense [NAME_101] to customers without the payment of such licence fees. [NAME_116] (Amended Statement of Claim [6], [106]-[111]) ([NAME_7]' issues 48-50) 282The [NAME_7] also bring a claim for unconscionability against [NAME_116]. [NAME_112] identify the issues in respect of this claim as whether [NAME_116] was engaged in trade or commerce between Australia and another country or engaging in conduct involving the use of telegraphic or telephonic services; whether [NAME_112] were under a special disadvantage that was known to [NAME_116]; and whether [NAME_116] unconscientiously took advantage of [NAME_112]' special disadvantage. 283I proceed on the basis that [NAME_116] was engaged in trade or commerce between Australia and another country or engaged in conduct involving the use of telegraphic or telephonic services and I do not understand the [NAME_6] to have contended to the contrary. [NAME_112] again submit that [NAME_102] and [NAME_103] were under a special disadvantage because they were "locked in" to [NAME_101] and [NAME_119] and that [NAME_116] knew about this special disadvantage. I do not accept that these matters establish a special disadvantage, for the reasons noted above, and it is therefore not necessary to deal with the question of [NAME_116]'s knowledge in that regard. [NAME_112] also submit that [NAME_103] was under a "special disadvantage" because [NAME_103] became [NAME_116]'s licensee and customer without any direct contractual relationship with [NAME_116], so far as the operation of the Copyright Act meant that [NAME_127] assigned the copyright to [NAME_116], and the licence to [NAME_103] under the 2004 Agreement was binding on [NAME_116] as a successor in title, under s 196 of the Copyright Act. I also do not accept that submission since, as I have noted above, [NAME_103] was not undertaking any substantive business at that time; its rights were sufficiently protected by s 196 of the Copyright Act; and, to the extent that customers sub-licensed by [NAME_103] prior to April 2009 had rights to continue using [NAME_101], those rights were not prejudiced by the [NAME_116] Agreement. 284It is also therefore not necessary to deal with [NAME_112] submission that [NAME_116] unconscientiously took advantage of [NAME_103]'s "special disadvantage" by entry into the [NAME_116] Agreement. I note, however, that [NAME_112] submit that [NAME_116] entered into an agreement with [NAME_80] and [NAME_115] that required [NAME_80] and [NAME_115] to provide all copies of [NAME_101] to [NAME_116] and that [NAME_80] could not then perform its obligations under the 2004 Agreement to deposit the source code with an escrow agent and [NAME_80] could not provide the source code to [NAME_103] or an independent developer to modify [NAME_101] and [NAME_119] 7 so that they were compatible and interoperable. [NAME_112] also submit that the [NAME_116] Agreement restricted [NAME_80] and [NAME_115] from providing development and support services on the technology or technology that was similar to [NAME_101], so that they could not modify [NAME_101] and [NAME_119] 7.2 so that they were compatible and interoperable, or provide assistance to an independent developer to do so. [NAME_112] also submit that [NAME_116] did not take any steps to seek [NAME_103]'s consent to [NAME_80]'s assignment of the 2004 Agreement or to novate the 2004 Agreement. [NAME_112] again submit that this "accumulation of incidents" discloses a case of unreasonable and unfair behaviour that amounts to unconscionable conduct: Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365; (2000) 104 FCR 253 at [51] per Sandberg J. 285I have addressed broadly similar submissions in respect of the claims for breach of contract and conspiracy above. Had it been necessary to determine this matter, I would not have held that any element of moral obloquy or unconscionable conduct was established on the part of [NAME_116], where [NAME_103] had at that time substantially ceased business and new licences were being granted by [NAME_110] in breach of copyright and without payment of licence fees to [NAME_80]. I also note that - if, contrary to the fact, [NAME_103] had in fact been conducting any substantive business - the premise of this submission, that the [NAME_116] Agreement would deprive it access to [NAME_101] to which it is otherwise entitled, would not be established so far as [NAME_116] was bound by any obligations which attached to [NAME_80] as the successor to the copyright owner. Tort of inducing breach of contract - [NAME_116] Agreement (Amended Statement of Claim [112] - [116]) ([NAME_7]' issues 51-54) 286The first claim as to the tort of inducing breach of contract relates to the [NAME_116] Agreement. [NAME_112] identify the issues in respect of this claim as whether [NAME_80]'s entry into the [NAME_116] Agreement breached the 2004 Agreement; whether [NAME_116] induced or procured [NAME_80] to enter into the [NAME_116] Agreement; whether [NAME_116] had sufficient knowledge of the terms of the 2004 Agreement to know that it was a breach of the 2004 Agreement; and whether [NAME_116] had the intention for [NAME_80] to breach the 2004 Agreement or was recklessly indifferent or wilfully blind to the breach. The [NAME_6] submit that there has been no breach of the 2004 Agreement by [NAME_80] and a claim for the tort of inducing breach of contract cannot be made out on that basis. They also deny that the elements of such a claim are established so far as [NAME_116] is concerned. 287The [NAME_7] identify the first issue as to this claim as whether [NAME_80]'s entry into the [NAME_116] Agreement breached the 2004 Agreement. [NAME_112] point out (repeating a submission to which I have referred several times above) that cl 4.2 of the [NAME_116] Agreement required [NAME_80] and [NAME_115] to provide all copies of the source code for [NAME_101] to [NAME_116] and that cl 7.2 of the [NAME_116] Agreement also provided that they would not provide development, support or maintenance for [NAME_101] to any person other than [NAME_116] during the restraint period, which is 5 years. [NAME_112] submit that the inevitable consequence of [NAME_127] entering into the [NAME_116] Agreement was that [NAME_80] and [NAME_115] could not perform and would inevitably breach its obligations under cl 2.3(c) (which is contended to require that [NAME_101] be compatible with [NAME_119] version 7.2), cl 2.4 (provide updates immediately they become available), cl 3 (provide information and assistance), cl 4 (provide development services), and cl 5 (escrow agreement) of the 2004 Agreement. I do not accept this submission. I have held above that cl 2.3 of the 2004 Agreement does not impose the requirement as to compatibility with [NAME_119] version 7.2 for which [NAME_112] contend; second, the entry into the [NAME_116] Agreement did not result in an inevitable breach of these obligations, because it was not inevitable that [NAME_116] would not consent to [NAME_133] complying with them, particularly if a court held they continued to exist; it was not inevitable that [NAME_116] would not comply with those obligations itself, to the extent that it had been assigned the benefits under the agreements; and the provisions of the Copyright Act dealing with the position of a successor to a copyright holder, to which I have referred above, may have caused or encouraged [NAME_116] to do so. I have, however, held that the entry into the [NAME_116] Agreement breached cl 13.2 of the 2004 Agreement which required [NAME_80] to obtain [NAME_103]'s consent before assigning [NAME_101] or the 2004 Agreement, although there may be a question whether any loss would follow from that breach where [NAME_103] has no substantial continuing business and has in any event consented to the assignment. 288The [NAME_6] also submit that it is necessary to show the alleged tortfeasor procured or induced the breach of contract. In DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 694; 2 All ER 361, Jenkins LJ observed that: "It is to be observed that in all these cases there is something amounting to a direct invasion by the third party of the rights of one of the parties to the contract, by prevailing on the other party, to do, or doing in concert with him, or doing without reference to either party, that which is inconsistent with the contract, or by preventing, by means of actual physical restraint one of the parties from being where he should be or doing what he should do under the contract." 289The [NAME_7] submit that [NAME_116] "procured and induced" [NAME_80] to enter into the [NAME_116] Agreement, but refer in submissions to no more than the entry into that agreement to establish that proposition. It is by no means self-evident that each contracting party can be said to procure or induce the other to contract. I am conscious, however, that there is other evidence that [NAME_116], through [NAME_131], had opened a dialogue with [NAME_115] as to the possible sale of [NAME_101] to [NAME_116] from early in their dealings, and it may be that that would be sufficient to amount to procuring or inducing the entry into the agreement. [NAME_115] accepted in cross-examination that [NAME_116] had made several offers to buy (or at least had expressed an interest in buying) [NAME_101] in the period after he entered a memorandum of understanding with it in 2005, and approximately once a year in that period (T303). [NAME_131]'s evidence was also that he had informal discussions with [NAME_115] about joining together in 2010 and 2011 ([NAME_130] 31.10.13 [30]) and due diligence discussions in mid-2011 ([NAME_130] 31.10.13 [39]). I do not consider it necessary to decide this issue where the parties have not made substantive submissions about it and this claim can be determined on other grounds. 290The next issues identified by [NAME_112], which the authorities indicate are related, concern intention and whether [NAME_116] had sufficient knowledge of the terms of the 2004 Agreement to appreciate that [NAME_80]'s entry into the [NAME_116] Agreement was a breach of the 2004 Agreement. It is sufficient if [NAME_116] had sufficient knowledge of the terms of the contract to appreciate that what it is inducing would breach the contract, go as to establish an intention to interfere with contractual rights: [COMPANY_45] v Commonwealth of Australia [2009] NSWCA 373 at 130 per Hodgson JA; Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 58 FCR 26 at 43; 130 ALR 469 per Lindgren J (with whom [NAME_203] agreed). The [NAME_6] submit that the relevant intention requires that the conduct must "in some real sense be 'aimed at' the contract" (Oren v Red Box Toy Factory Ltd [1999] FSR 785 at 799 per Jacob J) such that there is a clear causal link between the defendant's conduct and the breach, and that it is insufficient that interference is the natural and probable consequence of the defendant's activities and that the [NAME_6] knew this to be the case. In Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; (2001) 110 FCR 157 at [127], the [ADDRESS] of the Federal Court observed that: "The gravamen of the tort of inducing breach of contract is intention. Although the requirement of knowledge of the contract is sometimes discussed as if it were a separate ingredient of the tort, it is in fact no more than an aspect of intention. The requirement that the alleged tortfeasor have sufficient knowledge of the contract is a requirement that he have sufficient knowledge to ground an intention to interfere with contractual rights. Both the intention to interfere with contractual rights and the necessary supporting knowledge of the contract refer to the state of mind of the alleged tortfeasor: All State Life Insurance Co v ANZ Banking Group Ltd (1995) 58 FCR 26 at 43." [ADDRESS] may in an appropriate case infer such an intention from the surrounding circumstances: [NAME_204] v [NAME_205] above at [239]. 291The [NAME_7] submit, and I accept, that [NAME_116] knew (at least generally) of the existence of non-exclusive software licences relating to [NAME_101], since it (or a predecessor) had entered a memorandum of understanding conferring such a licence in respect of [NAME_101] in 2005 (Ex P2 154A). Clause 3.3 of that memorandum of understanding disclosed that [NAME_103] was receiving updates of the software, at least in 2005, because it required [NAME_115] to provide [NAME_116]'s predecessor entity with updates "similar to the mode of operation currently done by [[NAME_103]]". As [NAME_112] point out, the [NAME_116] Agreement itself referred to the 2004 Agreement (and other third party contracts), defining the term "Contracts" as all contracts relating to the "Software", the "Vendor IP" (in turn defined as all "[NAME_9]" in and in relation to the "Software" including the source code for the "Software") and included the contracts listed in Schedule 2. That Schedule in turn refers to contracts with [NAME_103]. It follows that [NAME_116] knew that contracts with [NAME_103] existed or at least had existed. 292Mr [NAME_5]' evidence is that, when he was negotiating the sale of [NAME_101] to [NAME_116] in about September/October 2011, he told [NAME_116] that he did not have a copy of the 2004 Agreement at hand and that agreement had expired. His evidence is that it was his understanding, at that time, that the 2004 Agreement had expired and he therefore did not seek permission from [NAME_103] to assign the 2004 Agreement to [NAME_116] ([NAME_5] 14.10.13 [98] - [99]). That understanding was not implausible where the base licensing structure for a seven year period contained in that agreement would have expired in August 2011, before the entry into the [NAME_116] Agreement. 293Mr [NAME_130]'s evidence is that [NAME_115] provided [NAME_116] with copies of Development Agreements, including the [NAME_206], [NAME_126] and [NAME_151] in connection with the negotiations for the purchase of the software, and each contained an acknowledgement by [NAME_103] that the source code for [NAME_101] and [NAME_9] belonged to [NAME_80]. [NAME_112] point out that the Software Development Agreement relating to [NAME_151] also referred to the 2004 Agreement in the defined term "Source Software Licence" (Ex P2 140). [NAME_131]'s evidence is also that he conducted due diligence in relation to the purchase by [NAME_116] and had discussions with officers of [NAME_109] and [COMPANY_207] about that time in respect of the licensing arrangements between [NAME_103] on the one hand and [NAME_127] on the other ([NAME_130] 31.10.13 [39]). His evidence is that he requested a copy of the 2004 Agreement from [NAME_115], but [NAME_115] could not locate it and he was informed by [NAME_115] that the 2004 Agreement had expired; he thought that [NAME_103] had ceased doing business around 2009; and he had "very limited awareness" (admittedly, a somewhat imprecise description) of the terms of the 2004 Agreement and he had not read or seen a copy of that agreement until after receipt of a letter dated 18 November 2011 from [NAME_112]' solicitors to [NAME_80] ([NAME_130] 31.10.13 [33]-[39]; T353-354, 374-375). This evidence, at least so far as the state of [NAME_131]'s knowledge is concerned, is corroborated by [NAME_115]' evidence of these matters, which I accept. It has not been established that [NAME_131] or [NAME_116] had the necessary knowledge or intention as at 31 October 2011, when the [NAME_116] Agreement was executed, to commit the tort of inducing breach of contract. 294The [NAME_7] also submit that: "Therefore, even though [[NAME_116]] was not aware of the specific terms of the [2004] Agreement, it was aware that a licence of [NAME_101] Application would generally include a right to support and development, a right to updates and a warranty that [NAME_101] Application would be compatible with [NAME_119]. Therefore, it was sufficiently aware of the terms of the [2004] Agreement to appreciate that [[NAME_115]] and [NAME_80]'s entering into the [[NAME_116]] Purchase Agreement would inevitably lead to [NAME_80] breaching the [2004] Agreement." (emphasis added) I have held that the 2004 Agreement did not in fact include a warranty as to compatibility with [NAME_119] beyond version 4, with which [NAME_101] was already compatible, and no breach of the 2004 Agreement would arise in that respect from entry into the [NAME_116] Agreement. I have not accepted that the entry into the [NAME_116] Agreement would otherwise inevitably lead to a breach of the 2004 Agreement. [NAME_112] do not submit that [NAME_116] was aware of the prohibition on assignment without [NAME_103]'s consent, and no basis is therefore established for a claim for intentional interference arising from a breach of that prohibition. 295The [NAME_7] submit that the requisite intention should be inferred from the surrounding circumstances including that, as I noted above, [NAME_80] had also granted a non-exclusive licence in [NAME_101] to a predecessor of [NAME_116]. [NAME_112] also submit that [NAME_116] operates in the same industry as [NAME_103] and is a competitor to [NAME_103]. This submission neglects the fact that, as I have noted above, [NAME_103] had not any substantial business in that industry since new custom was diverted to [NAME_110] from April 2009. It does not seem to me that these matters establish an intention to breach the 2004 Agreement. No question of any intention to interfere with any contractual relationship between [NAME_110] - which was in truth [NAME_116]'s competitor at the relevant time - and [NAME_133] arises, both because it is not a plaintiff and brings no such claim, and because it had no contractual relationship with [NAME_133]. 296Alternatively, [NAME_112] submit that, when [NAME_116] entered into the [NAME_116] Agreement, [NAME_116] was recklessly indifferent or wilfully blind to [NAME_80]'s breach of the 2004 Agreement. [NAME_112] submit that, as I noted above, [NAME_116] knew of the fact that the 2004 Agreement existed (or had existed) and had some awareness of its terms. [NAME_112] then repeat the submission that the inevitable consequence of [NAME_80] entering into the [NAME_116] Agreement was that [NAME_80] would breach the 2004 Agreement, a submission that I have not accepted above. Given the inquiries that [NAME_116] and [NAME_131] had made, and the information that [NAME_115] had provided to them, I do not consider that reckless indifference or wilful blindness is established. 297The [NAME_6] also point out that damage is also a necessary element of the tort of inducing breach of contract. The [NAME_6] submit, and I accept, that [NAME_103] has not established that it suffered such damage, where [NAME_103] had, as I have noted above, ceased to undertake business with new customers before the [NAME_116] Agreement was made and that transaction did not affect [NAME_103]'s ability to license [NAME_101] under cl 2.2 of the 2004 Agreement. Tort of inducing breach of contract - Purported termination of 2004 Agreement (Amended Statement of Claim [117] - [120]) ([NAME_7]' issues 55-58) 298The [NAME_7] identify the issues in respect of this claim as whether [NAME_80]'s purported termination of the 2004 Agreement was a breach of that agreement; whether [NAME_116] induced or procured [NAME_80]'s purported termination of the 2004 Agreement; whether [NAME_116] had sufficient knowledge of the terms of the 2004 Agreement to know it was a breach; and whether [NAME_116] had the intention for the [NAME_80] to breach the 2004 Agreement or was recklessly indifferent or wilfully blind to the breach. 299The [NAME_7] submit that [NAME_80] purported to terminate the 2004 Agreement where it had no right to do so and thereby repudiated and committed an anticipatory breach of that agreement. I accept that the purported termination of that agreement was arguably an anticipatory breach of it and may have amounted to a repudiation of it, subject to the qualification that it is by no means clear that [NAME_80] (or [NAME_116] on its behalf) would not comply with that agreement if the Court held that termination was invalid. I accept that [NAME_116] induced or procured [NAME_80]'s attempted termination of the 2004 Agreement. [NAME_131]'s evidence was that he "directed" [NAME_80] to send the letter giving [NAME_103] notice of breach of that agreement and the further letter terminating that agreement ([NAME_130] 31.10.13 [84], [86]). [NAME_112] refer to further evidence of [NAME_116]'s involvement, but it is not necessary to address that evidence to reach that conclusion. 300The [NAME_7] recognise that a further question then arises as to whether [NAME_116] had sufficient knowledge of the terms of the 2004 Agreement to know that the purported termination of it was a breach of it. [NAME_131] accepted that he became aware of the terms of the 2004 Agreement after he received a copy of the letter dated 18 November 2011 from [NAME_112]' solicitors to [NAME_80] ([NAME_130] 31.10.13 [36]). [NAME_112] submit, and it follows, that [NAME_116] knew about [NAME_80]'s right to terminate in cl 8, the dispute resolution process in cl 10 and notice provisions in cl 13 of that agreement. However, knowledge of the terms of an agreement is not the same as knowledge of breach of it, particularly in a complex factual setting. [NAME_112] submit that [NAME_116] intended for [NAME_80] to breach the 2004 Agreement or to interfere with [NAME_80]'s performance of the contract, or alternatively, it was recklessly indifferent or willfully blind to [NAME_80]'s breach and [NAME_80]'s breach was an inevitable consequence of [NAME_116]'s direction that it terminate the contract. I do not accept that submission, where [NAME_116]'s and [NAME_80]'s conduct is at least equally consistent with a belief that [NAME_80] had a right to terminate the 2004 Agreement in the relevant circumstances. 301As I noted above, damage is also a necessary element of the tort of inducing breach of contract. The [NAME_6] submit, and I accept, that [NAME_103] has not established that it suffered such damage, where [NAME_103] had, as I have noted above, ceased to undertake business with new customers before the [NAME_116] Agreement was made and that transaction did not affect [NAME_103]'s ability to license [NAME_101] to existing customers at the end of that seven-year period under the 2004 Agreement. Groundless threats of copyright infringement (Amended Statement of Claim [122] - [125]) ([NAME_7]' issues 59-60) 302The [NAME_7] also claim that the [NAME_6] have made groundless threats of copyright infringement for the purposes of s 202 of the Copyright Act. [NAME_112] identify the issues in respect of this claim as whether [NAME_116] has threatened a person with action for infringement of copyright, by means of circulars, advertisements or otherwise. [NAME_112] identify the relevant legal principles as that the relevant representations must be a threat to bring proceedings for infringement and not merely notification of the existence of copyright and that the threats do not have to be made directly to the person threatened, and may include threats made generally, for example through advertisements, or to a third party: [redacted] 303There is ultimately little contest that the relevant statements, if unjustifiable, would have contravened s 202 of the Copyright Act. In oral submissions, [NAME_116] accepted (T42) that the relevant representations amounted to threats of an action for copyright infringement and submitted that it had now brought such an action and that the threats were not unjustified because that action was justified. [NAME_116] properly accepted that, if there was no infringement of copyright, then it would follow that the making of those representations would constitute groundless threats of copyright infringement. This claim therefore depend upon the outcome of [NAME_208]' claim for copyright infringement. 304The [NAME_7] point to representations on a website registered to [COMPANY_92] (Ex P2 394, [NAME_89] 1.11.12 [14] Annex G, 65, 66) that its (or [NAME_116]'s) solicitors had written to a company, which would have been readily identifiable as [NAME_103] or, more likely, [NAME_110]; that it (or [NAME_116]) believed that company's actions amounted to infringement of "our copyright" which it took "extremely seriously"; and that [NAME_116] was warning their customers to avoid "disruption of service". [NAME_112] submit that there was no copyright infringement where [NAME_102] owns or has a non-exclusive licence in [NAME_101] pursuant to the 2002 Agreement; [NAME_102] and [NAME_103] have an implied licence in [NAME_101]; [NAME_103] has a non-exclusive licence in [NAME_101] pursuant to the 2004 Agreement; and [NAME_110] has a right to use [NAME_101] because [NAME_102] granted rights to [NAME_110] using [NAME_137] rights in the 2002 Agreement. I have addressed these submission in respect of the corresponding claim for misleading or deceptive conduct in respect of the representations on the website in paragraphs 260-268 above. A copyright infringement by [NAME_110] is established for the reasons noted below and the threat of action for infringement was not unjustified. 305The [NAME_7] also point to the position taken in an email dated 21 December 2011 from [NAME_131] to a third party (Ex P2, 371; [NAME_89] 19.3.14 [108] JP4-M) that a "court battle [is] looming". [NAME_112] submit that [NAME_116] made that representation before [NAME_80] purported to terminate the 2004 Agreement on 24 January 2012, and that the 2004 Agreement granted (I interpolate, subject to the issues arising in respect of the seven-year period specified in cl 2.2 to which I referred above) [NAME_103] the right to use [NAME_101]. That does not seem to me to assist [NAME_112] where the relevant representation was not specifically directed to [NAME_103], but to the position in respect of infringing use; the relevant use was by [NAME_110], since [NAME_103] had ceased to deal with new customers and had substantially or entirely ceased its business from April 2009; and a copyright infringement by [NAME_110] is established for the reasons noted below and the threat of action for infringement was not unjustified. [NAME_117] by [NAME_116] and [NAME_80] 306FIPL and [NAME_80] also bring a [NAME_117] against [NAME_102], [NAME_103], [NAME_110] and [NAME_104] for breach of copyright, breach of trade mark, misuse of confidential information and misleading or deceptive conduct. [NAME_104] accepts that he is the controlling mind of [NAME_102], [NAME_103] since September 2008 and [NAME_110]. The Cross-[NAME_6] complain that these complaints were not raised until after [NAME_127] sold [NAME_101] to [NAME_116]. It seems to me that that complaint is a distraction from the underlying question of whether the claims made by [NAME_208] are justified. The Cross-[NAME_6] identified a list of issues arising in respect of the [NAME_117] which is again elaborate, and again of assistance in identifying the matters to be determined in the proceedings. I will refer to those issues in addressing particular questions below, although I have rephrased them on several occasions for simplicity, and have dealt with issues that raise common questions together. Copyright ([NAME_117] [1] - [17]) (Cross-[NAME_6]' issues 1-4) 307Paragraphs 1-17 of the [NAME_117] raise issues as to whether copyright subsists in each update or new release of [NAME_101]; whether [NAME_116] owns copyright in [NAME_101] releases to 1 November 2011 and after that date; and whether copyright subsists in each update and new release of user documentation. It is common ground that [NAME_101] is a computer program and a "literary work" as defined in s 10 of the Copyright Act. 308The first issue is whether copyright subsists in each update or new release of [NAME_101]. A preliminary question arises as to whether [NAME_103] and [NAME_102] have admitted that matter by the pleadings in the proceedings. Paragraph 7 of [NAME_112]' Amended Statement of Claim (to which [NAME_102] and [NAME_103] are party, but [NAME_104] and [NAME_110] are not) pleads that copyright subsists in the [NAME_101] Application (as defined). Paragraph 7(b) of the Amended Statement of Claim in turn pleads that [NAME_115] would be the owner of copyright in any updates to the [NAME_101] Application when the copyright came into existence. The Cross-[NAME_6] submit, and I accept with some hesitation, that that pleading deals with the position as to ownership of copyright, if such copyright exists (or at the highest, assumes that such copyright exists) in such updates and does not concede that such copyright exists. The Cross-[NAME_6] also point out that paragraph 7(b) of the Amended Statement of Claim deals only with updates and is not an admission in relation to new releases of software, where the terms "updates" and "new releases" are separately defined in the 2004 Agreement as noted above. 309Paragraph 2 of the [NAME_117] in turn pleads that [NAME_115] "from time to time" made updates and new releases of the [NAME_118]. The Cross-[NAME_6] admit that paragraph (Defence to [NAME_117] [2]). They point out that these pleadings do not necessarily extend to all updates and new releases of the software, given the qualification introduced by the term "from time to time", which introduces uncertainty as to whether the claim is that [NAME_115] developed all user documentation or only developed it from time to time, leaving open the possibility that other persons also did develop user documentation. In paragraphs 3-4 of the Defence to [NAME_117], the Cross-[NAME_6] "do not admit" that each update or new release of [NAME_101] contained reproductions of the whole or a substantial part of the previous version and say that some of the updates or new versions deleted or amended material and some of the additional, deleted or amended material was not original, and deny that each update or new release was a new literary work being a computer program in which copyright subsists, and say that each update was not substantial enough or original enough to be a new literary work. 310On balance, and with some hesitation, it seems to me that it is open to the Cross-[NAME_6], given these pleadings, to place in issue whether copyright subsists in each update or new release of [NAME_101]. That issue is at least open to [NAME_110] and [NAME_104] which are not bound by any pleading in that respect in the Amended Statement of Claim filed by [NAME_102] and [NAME_103]. 311The [NAME_11] submit that each new version of [NAME_101] includes previous versions of the software but with additional material and is a new work in which copyright subsists and they point to the minimal extent of the changes to a work necessary to establish a new copyright work: Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; 111 ALR 577. The Cross-[NAME_6] respond that, where [NAME_208] seek a declaration and injunctive relief in respect of each update or new release, then they must prove that copyright subsists in each update or new release. I accept that submission, both as a matter of principle and because the decision in Cummings v Vella [2002] FCAFC 218 seems to me to be authority that, unsurprisingly, that conclusion cannot be reached by taking a sample of some updates and releases and not considering the position as to others. However, it does not follow that such a conclusion can only be reached by individual scrutiny of the content of several hundred releases and updates. It may, in principle, be reached by inferences properly drawn from evidence as to the nature of such updates and releases and the process by which they were prepared. 312The Cross-[NAME_6] submit that an inference that each update or new release was sufficiently substantial or original to support a claim to copyright cannot be drawn, because the changes between an update or release and a subsequent update may not be sufficiently "original" or sufficiently substantial so as to constitute a new literary work, and that it is necessary to demonstrate "some intellectual effort" in relation to each such update or release. They point to the observation of Lord Atkinson in Macmillan & Co Ltd v Cooper (1923) 40 TLR 186 at 188 that: "To secure copyright for this product it is necessary that labour, skill and capital should be expended sufficiently to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material." That observation was in turn cited in Interlego AG v Tyco Industries Inc [1989] 1 AC 217, where Lord Oliver observed (at 263) that: "There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition." The Cross-[NAME_6] also refer to Telmak Teleproducts (Aust) Pty Ltd v Bond International Pty Ltd (1985) 66 ALR 118; 5 IPR 203 and CBS Records Australia Ltd v Gross (1989) 15 IPR 385, which seem to me to be examples of the application of that principle in particular cases. 313In IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 239 CLR 458, French CJ, Crennan and Kiefel JJ observed (at [33]) (footnotes omitted) that: "The requirement for copyright subsistence that a literary work be "original" was first introduced into the Copyright Act 1911 (Imp), although it had already been recognised at common law. Originality for this purpose requires that the literary work in question originated with the author and that it was not merely copied from another work. It is the author or joint authors who bring into existence the work protected by the Act. In that context, originality means that the creation (ie the production) of the work required some independent intellectual effort, but neither literary merit nor novelty or inventiveness as required in patent law." Their Honours also observed (at [47] - [48]) that: "Much has been written about differing standards of originality in the context of the degree or kind of "skill and labour" said to be required before a work can be considered an "original" work in which copyright will subsist. "Industrious collection" or "sweat of the brow", on the one hand, and "creativity", on the other, have been treated as antinomies in some sort of mutually exclusive relationship in the mental processes of an author or joint authors. They are, however, kindred aspects of a mental process which produces an object, a literary work, a particular form of expression which copyright protects. A complex compilation or a narrative history will almost certainly require considerable skill and labour, which involve both "industrious collection" and "creativity", in the sense of requiring original productive thought to produce the expression, including selection and arrangement, of the material. It may be that too much has been made, in the context of subsistence, of the kind of skill and labour which must be expended by an author for a work to be an "original" work. The requirement of the Act is only that the work originates with an author or joint authors from some independent intellectual effort. Be that as it may, as noted previously, since the subsistence of copyright need not be considered in this appeal, the relevance of skill and labour to that inquiry need not be considered further." I accept that the majority there refer to the need for independent intellectual effort in order to establish originality, but they also note that originality requires that the work originate with the author and distinguish the mere copying of another work, and recognise that a complex compilation may itself involve creativity and original thought. A pure compilation may well not satisfy that standard, but that result need not follow for updates to computer software which involve significant time and effort. Gummow, Hayne and Heydon JJ also there emphasised (at [131]) the need to have regard to the particular form of expression of information and pointed out that the Copyright Act does not afford protection to skill and labour alone. 314There is substantial evidence to support [NAME_115]' and [NAME_80]'s claim to originality in [NAME_101] and the updates and new releases to it, and to copyright in [NAME_101] and those updates and new releases. I have referred above to [NAME_115]' and [NAME_104]'s evidence of the extent of updates to [NAME_101] during the relevant period. [NAME_115]' evidence is that he developed [NAME_101] ([NAME_5] 4.12.12 [3]) and that he was the sole author of all source code for [NAME_101] ([NAME_5] 14.10.13 [37]). In 2002 - 2004, [NAME_115] made significant changes to [NAME_101] ([NAME_5] 4.12.12, [27]-[31]; [NAME_5] 14.10.13 [100]ff) including rewriting it to achieve compatibility with [NAME_119]; rewriting parts of [NAME_101] in the C++ programming language which is machine-readable to allow calculations to be performed more quickly; and developing the look-up tables using [NAME_113] principles and reducing the number of lines of source code in [NAME_101]. In the period between 1990 and November 2011, [NAME_115] developed and released more than 500 versions of [NAME_101] and created end user manuals and other documentation ([NAME_5] 4.12.12 [32]). The release notes of [NAME_101], which are in evidence for versions 11.176 to 11.399 from prior to November 2002 up to 20 May 2005 ([NAME_5] 3.12.12 Ex D6, 215-267), versions 11.209 to 11.533 from 29 October 2002 to 8 March 2008 ([NAME_89] 26.10.12 [27], Ex P7, 3/60-131) and versions 11.400 to 11.605 from 9 June 2005 to 20 September 2011 ([NAME_5] Ex D6, 267-302) indicate the extent of the additional work performed by [NAME_115] in making each new version of [NAME_101]. [NAME_115]' evidence also indicates the extent to which the source code of [NAME_101] has increased over that period, from 23,275 lines in version 11.176 (dated prior to February 2002) to 170,062 lines in version 11.406 (prepared in program language C++ in August 2005) and then to 297,954 lines in version 11.604 (prepared in program language C++ in May 2011) ([NAME_5] 14.10.13 [106]). [NAME_115]' evidence is also that he devoted approximately 40 plus hours per week on writing source code for [NAME_101] from 2002 to November 2011 ([NAME_5] 14.10.13 [110]). 315The Cross-[NAME_6] submit that [NAME_115] does not give "sufficient evidence" about the process of writing the code, including whether he directly wrote every line of code, or whether he used script editors or other software tools and these tools and programs generated the code, or whether he used commonplace routines in the code. They also point out that he accepted in cross-examination that he used software tools to generate part of the code, but I understand that acceptance to go no further than the use of tools available within the "C++ development environment" (T328). The Cross-[NAME_6] also submit that [NAME_115]' evidence as to lines of code ([NAME_5] 14.10.12 [106]) is "just a counting exercise" and that there is no analysis of the quality of the code or the files, whether there is a change in the functionality, or logic or structure, of the code or the files or the program in general and points out that the lines of code counted include CNC or data files that are not part of the literary work that is the computer program. They also submit that some of the updates and new releases "may have been" derivative [NAME_10] from other third party [NAME_10], and there "may be" insufficient originality to constitute a separate work from the other third party [NAME_10]. It seems to me, with respect, that that this submission is no more than speculation. Next, the Cross-[NAME_6] suggest that there "may be" no human author of the update or new release, and point out that copyright will not subsist if the work is computer generated: Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149; (2010) 194 FCR 142 at [117]-[119] per Perram J. I accept that copyright would not be established in updates or new releases that were wholly computer-generated, but the evidence and particularly [NAME_115]' evidence provides no support for a conclusion that the updates or new releases were prepared in that way. 316The [NAME_11] also rely on admissions as to the copyright of [NAME_127] in Recital A of the 2002 Agreement; Recital A and cl 7.1(e) of the Exclusivity Agreement; Recital A and cl 7.1(e) (warranty) of the 2004 Agreement; cl 7.1 of the [NAME_126] 2004 software Development Agreement between [NAME_103] and [NAME_80]; and cl 7.1 of the [NAME_172] 2005 Software Development Agreement between [NAME_103] and [NAME_80], to which I have referred above. [NAME_208] submit that each of the admissions was made by [NAME_104] on behalf of each of [NAME_102] and [NAME_103] and that those admissions are against interest. However, it does not seem to me that those admissions can be treated as binding on [NAME_110] and [NAME_104], for the purposes of the [NAME_117]. 317I have not accepted several of the Cross-[NAME_6]' submissions above, and it must be recognised that [NAME_102] and [NAME_103] propound, as part of their case as [NAME_7], [NAME_115]' ownership of copyright in [NAME_101] and that is not a matter they can now impugn. Nonetheless, the evidence led by [NAME_208] does not allow me to determine whether any particular update (other than the three updates to which I refer below) or all updates was original in the relevant sense, although it suggests that many such updates are likely to have that character given the time and work that went into their development. The conclusion that a group of items collectively involved significant effort, and were the original work of an author, does not indicate that every item in that group has that character, where republication of earlier versions with, for example, minor corrections that would not be original in the relevant sense, is by no means implausible. I therefore cannot grant a declaration or other relief extending to every new release and update of [NAME_101]. I do accept, however, that the evidence of the substantial time and effort spent by [NAME_115] and the significant increase in the number of lines in the software over time is sufficient to establish that the three identified versions of [NAME_101] which were the subject of line counts are subject to a proper claim for copyright and a declaration should be made in respect of those versions. 318The second issue identified by the Cross-[NAME_6] is, if copyright subsists in [NAME_101], whether [NAME_116] owns copyright in all [NAME_101] releases to 1 November 2011. The formulation of this issue requires one immediate correction. The fact that such copyright exists is pleaded by [NAME_102] and [NAME_103] and that pleading amounts to an admission against interest by which they are bound. That is the case notwithstanding they have not admitted the position in respect of each new release and update forming part of the application. The evidence to which I have referred above is sufficient to establish that copyright subsists in [NAME_101], so far as [NAME_104] and [NAME_110] may not have been bound by those admissions. 319The Cross-[NAME_6] contend that [NAME_116] is not the sole owner of the copyright in all [NAME_101] releases to 1 November 2011. They contend that [NAME_115] assigned the copyright in [NAME_101] to [NAME_102] under the 2002 Agreement, and that included an assignment of copyright as at 28 July 2002 under s 196(2) of the Copyright Act and an assignment of future copyright to the extent that copyright subsisted in subsequent updates and new releases under s 197 of the Copyright Act and [NAME_102] is therefore one of the owners of [NAME_101]. I do not accept that proposition since I have held above that the 2002 Agreement did not effect an assignment of the copyright in [NAME_101] to [NAME_102]. The Cross-[NAME_6] also contend that [NAME_80]'s claim to copyright does not detract from [NAME_115]' assignment of copyright to [NAME_102] because [NAME_115] did not assign any rights to [NAME_80] and was never [NAME_80]'s employer so ss 35(6) and 196 of the Copyright Act do not apply. This question does not arise in this context since I have held that the 2002 Agreement did not effect an assignment of the copyright in [NAME_101] to [NAME_102], although I have addressed associated issues above. The Cross-[NAME_6] also contend that [NAME_115]' assignment to [NAME_116] in the [NAME_116] Agreement is subject to [NAME_137] ownership of the copyright in [NAME_101], since [NAME_115] cannot assign to [NAME_116] what he already assigned to [NAME_102]. The premise of this proposition, namely, the assignment of copyright to [NAME_102], is not established for the reasons noted above. 320The third issue identified by the Cross-[NAME_6] is whether [NAME_116] owns copyright in all [NAME_101] releases after 1 November 2011. The Cross-[NAME_6] contend that [NAME_116] has not demonstrated that it owns copyright in all releases after 1 November 2011. They point to [NAME_131]'s evidence that, from May 2013 to October 2013, [NAME_116] worked on developing improved software to be compatible with [NAME_119] version 6.6 ([NAME_130] 30.5.14 [8]). They also point to [NAME_115]' evidence that he is not involved in developing [NAME_101] to be compatible with [NAME_119] (T264) and to [NAME_131]'s evidence that persons other than [NAME_166] and [NAME_115] have been involved in the current development of [NAME_101] (T376). The Cross-[NAME_6] contend that there is otherwise no evidence of who did the work or whether they are qualified persons for the purposes of the Copyright Act; no evidence of the originality or substantiality of their work (which raises a similar issue to that addressed in paragraphs 310-316 above) and no evidence that [NAME_116] owns the rights in this work. 321The Cross-[NAME_6] refer to Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984; (2010) 189 FCR 109, where the plaintiff had not identified the authors of newspaper headlines and combinations of newspaper article and headline and Bennett J held that a presumption of anonymous authorship under s 129 of the Copyright Act was not available and observed (at [79]-[82]) that: "I am not satisfied that the presumption of anonymous authorship is available. Fairfax has pleaded that the [NAME_10] in suit were written by its employees and were created only around twelve months prior to the hearing. Fairfax has chosen not to identify the authors. The onus does not shift to Reed to identify those authors, failing which Fairfax will be entitled to the benefit of a presumption that its [NAME_10] are original. There are no additional words in s 129(2) that provide that the test becomes whether the identity of the author can be ascertained by reasonable inquiry "external to the author or their employer. Section 129(2) of the Act applies where the "publication was anonymous or is alleged by the plaintiff to have been pseudonymous". Fairfax submits that the onus of establishing that the identity of the author is not generally known or cannot be ascertained by reasonable inquiry falls on the person challenging that anonymity and not on the person alleging it. I do not accept that submission as a matter of construction or as a matter of common sense. Authorship is crucial for establishing copyright because it is essential to prove that the work originated from an author who expended independent intellectual effort to create the expression in the work (IceTV at [48]). Section 129(2) assists the person claiming copyright where the identity of the author cannot be ascertained because it would otherwise be impossible to prove that the work originated from an unidentified author. The section cannot be intended to be address the situation where the source of the work and the authors are evident to or available to be ascertained by the employer but the employer claiming copyright decides not to identify the precise authors." I accept that a presumption under s 129 of the Copyright Act is not available where [NAME_116] could have, but did not, lead evidence to establish the authors of new releases and updates to [NAME_101] since November 2011, and that those persons were in a relationship with it such that it held the relevant copyright.

For these reasons, I accept that it is not been established that each of the updates and new releases of [NAME_101] since 1 November 2011 constitutes copyright [NAME_10] and that [NAME_116] owns all updates and new releases of [NAME_101] since that date. However, little may turn on this matter where [NAME_102] and [NAME_103] admit that copyright subsists in [NAME_101] and I have rejected the proposition that they have any interest in that copyright. 322For completeness, I note that the Cross-[NAME_6] also contend that a consultant, [NAME_166], worked on the source code for [NAME_101] after 2011, subject to an agreement with [COMPANY_92] rather than [NAME_116] (Ex P2 383a.) They submit that some of his development work "may still" be part of updates and new releases of [NAME_101] and that there is no evidence that [NAME_116] owns [NAME_166]'s work, to the extent that his work is part of any of the updates or new versions of [NAME_101]. It seems to me that a proposition that [NAME_116] did not own copyright in [NAME_101] after November 2011 because [NAME_166] or [COMPANY_92] did so, at least in part, is a matter that would need to have been pleaded, to give [NAME_208] notice of it and an opportunity to lead evidence in response. It is now open to the Cross-[NAME_6] in the absence of such a pleading. 323The fourth issue identified by the Cross-[NAME_6] is whether copyright subsists in each end user manual and other documentation ("user documentation") for [NAME_101]. Paragraph 2 of the [NAME_117] pleads that, "from time to time", [NAME_115] made updates and new releases of user documentation. The Cross-[NAME_6] admit this paragraph (Defence to [NAME_117] [2]). The Cross-[NAME_6] point out that these pleadings do not necessarily extend to all user documentation, given the qualification introduced by the term "from time to time", which introduces an ambiguity (similar to that which I have noted above in respect of updates and new release of [NAME_118]) as to whether the claim is that [NAME_115] developed all user documentation or that he only developed it on an occasional basis. [NAME_115] gives limited evidence about the creation and evolution of user documentation ([NAME_5] 14.3.13 [111]) and no evidence as to separate updates or new releases of the user documentation. It has not been established that there is sufficient originality to establish copyright in each update or new release of the user documentation. 2002 Agreement ([NAME_117] [18] - [21]) (Cross-[NAME_6]' issue 5) 324Paragraphs 18-21 of the [NAME_117] raise an issue whether the 2002 Agreement was completed, superseded and terminated as at August 2004. I have addressed that question in respect of the primary claim and held that the parties had abandoned that agreement by that date. [NAME_103] purported to grant a sub-licence of its rights under the 2004 Agreement to [NAME_110] ([NAME_117] [28], [29], [32]) (Cross-[NAME_6]' issue 6) 325Paragraphs 28-29 and 32 of the [NAME_117] raise an issue whether [NAME_103] purported to license the right to licence the use of [NAME_101], know-how methodology and trade secrets under the 2004 Agreement to [NAME_110]. [NAME_112]-[NAME_6] did not contend that such a licence had been granted. They relied exclusively on the sub-license of rights under the 2002 Agreement said to have been granted by [NAME_102] (by [NAME_104]) to [NAME_110] (by [NAME_104]) in April 2009. The case has therefore been conducted on the common basis that no such licence of rights under the 2004 Agreement was granted by [NAME_103] to [NAME_110]. Purported licence by [NAME_102] under the 2004 Agreement ([NAME_117] [30], [33] - [37]) (Cross-[NAME_6]' issues 7-9) 326Paragraphs 30 and 33-37 of the [NAME_117] raise an issue whether [NAME_102] purported to licence [NAME_110] to use and sub-license the use of [NAME_101] and whether [NAME_103] knew and consented to [NAME_102] purporting to license [NAME_110] to use and sub-license [NAME_101], and whether that knowledge and consent was a breach of the 2004 Agreement. In dealing with [NAME_112]' claim which relied on such a sub-licence, I indicated that I am not satisfied that an sub-licence was effectively granted by [NAME_102] to [NAME_110] in April 2009 in reliance on its rights under the 2002 Agreement, or that the terms of any such grant (which were not identified by [NAME_112]) were sufficient to authorise [NAME_110]'s sub-licensing [NAME_101] to third parties after that date. 327It is convenient to deal with the eighth and ninth issues identified by the Cross-[NAME_6] together, namely, whether [NAME_103] knew and consented to [NAME_102] purporting to license [NAME_110] to use and sub-license the use of [NAME_101] and whether, if [NAME_103] knew and consented to [NAME_102] purporting to license [NAME_110], this was a breach of the 2004 Agreement. On the findings that I have reached, these questions do not arise, since it has not been established that the relevant sub-licence was granted by [NAME_102] (by [NAME_104]) to [NAME_110] (by [NAME_104]) in April 2009 and the Cross-[NAME_6] have not contended a that sub-licence was granted at any later date. Had this issue arisen, I would have held that [NAME_103] would have had knowledge of any step taken by [NAME_102] in that regard. The contrary position would be wholly unrealistic where [NAME_104] was the controlling director of each of the companies and [NAME_103] is unlikely to have abandoned its business of dealing with new customers without knowledge that [NAME_110] would deal with those customers in its place and of the basis on which it would do so. The Cross-[NAME_6] submit, and I accept, that "consent" on the part of [NAME_103] would have required a positive act of agreement, permission or assent. However, it seems to me that the abandonment by [NAME_103] of its business in favour of [NAME_110] would have been sufficient to amount to such consent. I would not have accepted the Cross-[NAME_6]' further submission that there is no evidence that [NAME_103] "was in any way involved" with the grant of any such sub-licence or that [NAME_137] granting rights to [NAME_110] had "nothing to do with" [NAME_103]. [NAME_103] had least had an involvement in the matter so far as it ceased its business of dealing with new customers so as to permit [NAME_110] to do so in its place. 328The Cross-[NAME_6] respond to the claim that [NAME_103]'s knowledge and consent to [NAME_110]'s conduct amounted to a breach of the 2004 Agreement by observing that there are no express terms prohibiting [NAME_103] from knowing and consenting to [NAME_102] purporting to license [NAME_110] and [NAME_208] have not otherwise pleaded why [NAME_103]'s knowledge and consent to [NAME_102] purporting to license [NAME_110] is a breach of the 2004 Agreement. I accept those submissions. That conduct may or may not have breached a duty of good faith or an implied duty of cooperation or a narrower duty of [NAME_103] not to act in a manner that would deprive [NAME_80] of the benefit of licence fees under that contract. However, a claim on that basis was not pleaded by [NAME_208] and it would not be appropriate to address it where it was not squarely raised so as to allow the Cross-[NAME_6] to respond to it. [NAME_103]'s failure to pay licence fees under the 2004 Agreement ([NAME_117] [38] - [48]) (Cross-[NAME_6] issues 10-12) 329Paragraphs 38-48 of the [NAME_117] raise issues whether [NAME_103] has paid all licence fees for licences granted by it on a "per person" basis; whether [NAME_103] is required to pay licence fees for licences granted by [NAME_110]; and whether any failure to do so entitles [NAME_80] to terminate the 2004 Agreement. 330The tenth issue identified by the Cross-[NAME_6] is whether [NAME_103] paid all licence fees for all licences granted by SHFS on a "per person" basis. As I noted above in dealing with this issue in respect of the termination of the 2004 Agreement, the Cross-[NAME_6] contend that [NAME_103] paid all outstanding licence fees on 6 January 2012 when it paid the Paintiffs' solicitors $20,900 in respect of 19 licences (Ex P2 373). As I also noted above, [NAME_208] did not identify any evidence that any such fees were due and not paid, in respect of licences granted by [NAME_103] as distinct from [NAME_110], when I invited supplementary submissions as to the matter and that proposition has therefore not been established. 331The eleventh issue identified by the Cross-[NAME_6], and the real issue in dispute in this regard, is whether [NAME_103] is required to pay licence fees for licences granted by [NAME_110]. The Cross-[NAME_6] contend that [NAME_103] is not liable to pay licence fees under the 2004 Agreement for licences granted by [NAME_110] because [NAME_110] is not exercising rights under the 2004 Agreement, but (they contend) under the 2002 Agreement. As I noted above, [NAME_208] in turn plead that [NAME_110] has exercised copyright without the copyright owner's licence since at least April 2009 ([NAME_117] [60]) and that claim is consistent with that characterisation of events. The twelfth issue identified by the Cross-[NAME_6] is whether [NAME_103]'s failure to pay licence fees under the 2004 Agreement is a breach that would entitle [NAME_80] to terminate the 2004 Agreement. The Cross-[NAME_6] respond that there is no evidence that [NAME_103] failed to pay licence fees; [NAME_103] was not required to pay licence fees for licences granted by any other party; and, as of 24 January 2012, there was no entitlement to terminate the 2004 Agreement. 332I have addressed these questions above in dealing with the termination of the 2004 Agreement. This claim has not been established since [NAME_110]'s conduct, although in breach of copyright, did not involve the grant of licences by [NAME_103] so as to give rise to a liability to pay licence fees under the 2004 Agreement. Termination of the 2004 Agreement ([NAME_117] [49] - [50]) (Cross-[NAME_6]' issue 13) 333Paragraphs 49-50 of the [NAME_117] raise the question whether [NAME_80] terminated the 2004 Agreement. I have addressed this issue above in dealing with [NAME_112]' claim and held that the 2004 Agreement was not validly terminated. Constructive trust ([NAME_117] [51] - ]54]) (Cross-[NAME_6]' issues 14 - 16) 334The fourteenth issue identified by the Cross-[NAME_6] is whether a constructive trust remedy is available for a contractual debt claim. [NAME_208] plead that [NAME_103] holds licence fees in the amount set out in August 2004 on constructive trust for [NAME_80] ([NAME_117] [51]) or alternatively [NAME_110] holds the licence fees on constructive trust for [NAME_80] ([NAME_117] [52]) or alternatively [NAME_102] holds the licence fees on constructive trust for [NAME_80] ([NAME_117] [53]) and [NAME_80] holds the unpaid licence fees on constructive trust for [NAME_116] ([NAME_117] [54]). This issue does not arise since a right to such licence fees under the 2004 Agreement has not been established in respect of sub-licences granted by [NAME_110]. The Cross-[NAME_6] also submit, and I accept, that, absent a claim for breach of fiduciary duty or breach of trust, a constructive trust was not in any event an available or appropriate remedy in respect of a contractual claim against [NAME_103] for unpaid licence fees based on the 2004 Agreement: Daly v Sydney Stock Exchange Ltd [1986] HCA 25; (1986) 160 CLR 371. 335The fifteenth and sixteenth issues identified by the Cross-[NAME_6] is whether the unpaid licence fees payable by [NAME_103] under the 2004 Agreement are presently existing property and whether [NAME_116] is the owner of the unpaid licence fees payable by [NAME_103] under the 2004 Agreement, so that only it and not the Cross-[NAME_6] might hold that property on trust. These issues do not arise because I have held that no such licence fees are payable. Copyright infringement ([NAME_117] [56] - [66]) (Cross-[NAME_6] issues 17-21) 336The Cross-[NAME_6] identify the issues in respect of this claim as whether [NAME_110] has infringed copyright; whether [NAME_103] authorised any such infringement of copyright; whether [NAME_102] authorised [NAME_110]'s exercise of copyright; whether [NAME_104] authorised [NAME_110] to infringe copyright; and whether [NAME_104] authorised [NAME_134] to authorise [NAME_110]'s exercise of copyright. 337Paragraphs 58-59 of the [NAME_117] plead infringements of copyright by [NAME_103] and [NAME_102] respectively. Paragraph 60 of the [NAME_117] pleads that [NAME_110] has exercised copyright rights in [NAME_101] and user documentation without the copyright owner's licence since at least April 2009. [NAME_208] contend that the essence of their claim for copyright infringement is that the Cross-[NAME_6] have reproduced or authorised the reproduction of [NAME_101]; communicated [NAME_101] to the [NAME_42] by making it available online or authorised that communication, by their conduct in providing [NAME_101] under licence to their customers for use by their customers in making steel framing systems. 338The [NAME_11] contend that the only issue in dispute is whether the conduct was engaged in "without the licence of the copyright owner" for the purposes of ss 15, 36(1) and 115 of the Copyright Act. [NAME_208] accept that they bear the onus to establish the lack of a licence as an element of the action for copyright infringement: [COMPANY_143] v [COMPANY_209] above. They rely, relevantly, on the termination of the 2004 Agreement and any licence granted under it in 2011; that [NAME_110] was not a customer of [NAME_103] and its purported use of [NAME_101] was not for "internal business purposes only" in accordance with the 2004 Agreement; and that [NAME_116] has not authorised the conduct or, alternatively, [NAME_116] is not bound by any licence granted to [NAME_134]. [NAME_208] submit that their claim for infringement of copyright will largely depend upon the determination of the contractual issues, including the construction of the 2002 Agreement and the 2004 Agreement. As events developed in the hearing, it is not necessary to address the issue in respect of the 2004 Agreement because the Cross-[NAME_6] do not contend that [NAME_110] derived any authority to use or sub-license [NAME_101] from [NAME_103] under that agreement, as distinct from deriving that authority from [NAME_102] under the 2002 Agreement. 339The [NAME_11] contend that the Cross-[NAME_6] have reproduced or authorised the reproduction of [NAME_101] and communicated [NAME_101] to the [NAME_42] (by making it available online) or authorised the communication, by their conduct in providing [NAME_101] under licence to their customers for the purpose of use by their customers in making light gauge steel framing systems. There is no dispute that the Cross-[NAME_6]' software (previously known as [NAME_128], now known as ProCAD) is the same as [NAME_101]. There is also no dispute that [NAME_110] has engaged in that conduct since about 2009 and has continued to exploit the software by making it available to its customers after the date of [NAME_116]'s acquisition in November 2011 and intends to continue this conduct. The Cross-[NAME_6] accept that [NAME_103] also engaged in that conduct on at least one occasion after 2009 (Ex D4). 340The Cross-[NAME_6] submit that [NAME_110] has not infringed copyright, because [NAME_102] granted [NAME_110] a right to use [NAME_101] using [NAME_137] rights under the 2002 Agreement. I do not accept that submission. As I noted above, the 2002 Agreement had been abandoned by the parties well before April 2009; I am not satisfied that [NAME_102] effectively granted the suggested sub-licence to [NAME_110] in April 2009 for the reasons I have indicated above in respect of the primary claim; and [NAME_112] do not contend that the rights were conferred on [NAME_110] in any other way, for example, by [NAME_103] under the 2004 Agreement (which would have given rise to an obligation to pay licence fees that were not paid) or by [NAME_102] at any later date. 341The Cross-[NAME_6] also submit that, even if [NAME_110] exercised copyright in [NAME_101], [NAME_208] can only establish infringement by identifying the particular copyright work of [NAME_80] or [NAME_116] and identifying a particular work of [NAME_110] that reproduces the whole or a substantial part of the particular copyright work, and that the Court is not permitted to take a representative sample and infer infringement: [NAME_5] v [NAME_211] above at [34]-[38]. I accept that the Court cannot find copyright infringement based on a representative sample. However, it seems to me that [NAME_110]'s alleged infringement of the copyright in [NAME_101] is established by the matters that are admitted by [NAME_102] and [NAME_103] and the findings that I have reached above. [NAME_102] and [NAME_103] themselves plead that [NAME_115] has copyright in [NAME_101] and it is common ground that he assigned that copyright to [NAME_116] by the [NAME_116] Agreement; so far as [NAME_110] is not bound by that admission, the evidence to which I have referred above established that [NAME_115] had copyright in at least three specific versions of [NAME_101] to which I have referred; and it is also common ground that [NAME_110] has sub-licensed the use of [NAME_101] to third parties since April 2009 relying on the purported sub-licence to it by [NAME_102] of its rights under the 2002 Agreement; and I have held that [NAME_102] did not confer those rights on [NAME_110] for the reasons noted above. This finding does not involve the Court taking any "representative sample" and inferring infringement, since the admission by [NAME_102] and [NAME_103] and my findings as to ownership of the copyright in the three specific versions of [NAME_101] are sufficiently wide that any unauthorised use of that copyright by [NAME_110] gives rise to infringement. 342The Cross-[NAME_6] also point out that [NAME_208] claim that each update or new release of [NAME_101] and user documentation is a new and literary work ([NAME_117] [4] and [6]) and contend that they have not pleaded or identified which copyright work, which update or new release of [NAME_101] and user documentation that [NAME_110] has infringed. It seems to me that submission does not assist [NAME_208]. Where it is admitted by [NAME_102] and [NAME_103] that [NAME_115] had copyright in [NAME_101] and established as against [NAME_110] that [NAME_115] had copyright in the three specific versions of it to which I referred above, and not established that [NAME_110] had any right to use [NAME_101], then [NAME_208] can establish the breach of copyright by showing [NAME_110]'s use of [NAME_101], without needing to identify (at least at the liability, as distinct from quantification, stage) the particular updates or releases as to [NAME_101] as to which infringement took place. The evidence as to the manner in which [NAME_101] was developed and updated, to which I have referred above, supports a finding that any sub-licensing of [NAME_101] to that party since April 2009 will have involved reproducing one ore more of those versions of [NAME_101] (or subsequent releases that incorporated them) or communicating them to the [NAME_42] or authorising those acts. 343The next issue identified by the Cross-[NAME_6] is whether [NAME_103] authorised [NAME_110]'s infringement of copyright. The Cross-[NAME_6] point out that, unsurprisingly, a person is only liable for authorising copyright infringement if there is copyright infringement: National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59; (2012) 201 FCR 147. They contend that [NAME_103] is not liable for authorising [NAME_110]'s infringement of copyright because [NAME_110] did not infringe copyright. I have held to the contrary above. 344The Cross-[NAME_6] also submit that, even if [NAME_110] infringed copyright, this had "nothing to do with" [NAME_103]. They point to s 36(1A) of the Copyright Act which provides that, in determining whether a person has authorised another person's infringement of a literary work such as a computer program, the Court must consider the extent (if any) of the person's power to prevent the doing of the act concerned; the nature of any relationship existing between the person and the person who did the act concerned; whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. They also draw attention to [COMPANY_44] v iiNet Ltd [2012] HCA 16; (2012) 248 CLR 42, where French CJ, Crennan and Kiefel JJ observed at [68] that authorisation must be determined in light of these three factors rather than any other formulations of "authorisation" and (at [69]) that an alleged authoriser must have a power to prevent the primary infringements. Gummow and Hayne JJ also observed (at [142]-[143]) that indifference and countenancing infringement were not sufficient for authorisation. The Cross-[NAME_6] submit that [NAME_103] had no power to prevent [NAME_110] exercising copyright; that it is not sufficient that [NAME_103] and [NAME_110] had a common director; and that [NAME_103] had no contractual relationship with [NAME_110], let alone a contractual relationship that would allow it to control [NAME_110]'s activities. 345It seems to me that [NAME_103] had at least a practical power to prevent the infringing conduct by [NAME_110], so far as that conduct was enabled by the fact that [NAME_103] ceased doing business with new clients and thereby permitted [NAME_110], in effect, to assume its business; there was a close relationship between [NAME_103] and [NAME_110], by the fact that [NAME_104] controlled and had the substantial economic interest in each of them, and by their cooperation in the transfer of [NAME_103]'s business to [NAME_110]; and that [NAME_212] took no steps to prevent or avoid the doing of the act, which could have included at least withholding its cooperation by not ceding its business to [NAME_110]. These matters seem to me to be sufficient to establish that [NAME_103] authorised the relevant conduct for the purposes of s 36(1A) of the Copyright Act. 346The next issue identified by the Cross-[NAME_6] is whether [NAME_102] authorised [NAME_110]'s exercise of copyright. The Cross-[NAME_6] submit that [NAME_102] is not liable for authorising [NAME_110]'s infringement of copyright because [NAME_110] did not infringe copyright. I have held to the contrary above. The Cross-[NAME_6] accept that, if [NAME_110] infringed copyright, [NAME_102] is liable for authorising [NAME_110]'s infringement of copyright. The premise of that submission is plainly that [NAME_102] sub-licensed the rights to [NAME_110] in April 2009 and I have not accepted that premise above. Consistent with my findings above, I am not satisfied that [NAME_102] authorised the relevant infringement. 347The next issue identified by the Cross-[NAME_6] is whether [NAME_104] authorised [NAME_110]'s exercise of copyright. The Cross-[NAME_6] contend that the evidence demonstrates that [NAME_104] is the person authorising the infringing conduct in each case. It is common ground that [NAME_104] is a director of [NAME_110], [NAME_102] and [NAME_103] and the controlling mind of each company. [NAME_208] submit, plainly correctly, that a director of a company does not automatically authorise the company's copyright infringement: King v Milpurrurru (1996) 66 FCR 474 at 500; 136 ALR 327 per Beazley J (as per Honour then was). They point to authority that an individual director is only liable if the director did more than acting as a director, if he or she was personally involved, so that he or she directed, caused or procured the infringement, and that he or she made the tort his or her own: Keller v LED Technologies Pty Ltd [2010] FCAFC 55; (2010) 185 FCR 449. The parties otherwise made limited submissions as to this issue, which has generated significant controversy in the academic writings and the case law. 348A first basis for treating a director as liable for a company's breach of copyright is the "direct or procure" test, which was one of the bases on which a director could be held liable for a company's torts: [COMPANY_37] (in liq) v Belvedere Fish Guano Co Ltd [1921] 2 AC 465; Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 at 14 per [NAME_213]; Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507 at 514-515; 2 All ER 257 per Lord Salmon. In C Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317; 2 All ER 415, that test was applied in determining whether a director was personally liable for an infringement of the plaintiff's copyright and Slade LJ summarised the position (at 323-324) as follows: "The mere fact that a person is a director of a limited liability company does not by itself render him liable for torts committed by the company during the period of his directorship ... Nevertheless, judicial dicta of high authority are to be found in English decisions which suggest that a director is liable for those tortious acts of his company which he has ordered or procured to be done." 349That decision was in treated as authority for the "direct or procure" test in Kalamazoo Australia Pty Ltd v Compact Business Systems Pty Ltd (1985) 84 FLR 101 at 127; 5 IPR 213 per Thomas J and in Australasian Performing Rights Association Ltd v Valamo Pty Ltd (1990) 18 IPR 216 at 220 per Davies J. A second formulation, which requires that a director "make the tort his own" is typically associated with Mentmore Manufacturing Co Ltd v National Merchandising Manufacturing Co Inc (1978) 89 DLR (3d) 195 and is more demanding than the "direct or procure" test: White Horse Distillers Ltd v Gregson Associates Ltd [1984] RPC 61 at 91-92 per Nourse J. In Microsoft Corp v Auschina Polaris Pty Ltd (1996) 71 FCR 231; 142 ALR 111, Lindgren J expressed the view (at 244-246) that the "direct or procure" test was more satisfactory than the "make the tort his own" test and that the predominance of Australian authority required him to follow it as he was not convinced that it was wrong. In [NAME_193] v [NAME_214] above, a majority (Jenkins and Lee JJ) appear to have adopted the "direct or procure" test, although Beazley J expressed a preference for the "make the tort his own" test. In [NAME_215] v [COMPANY_216] above, Emmett J formulated the test for liability in terms that did not expressly adopt either the "direct or procure" or "make the tort his own" test; Besanko J referred to the two tests but did not decide between them; and Jessup J expressed the view that a director would be liable if he or she stood apart from the company and procured the tort as a separate entity, using the company as an instrument of her or his own wrong and in that sense making the tort her or his own. The question of the applicable test was again left open in [COMPANY_218] v [NAME_219]; [2012] FCAFC 107; (2012) 293 ALR 537 at [58]. 350It does not seem to me to be necessary to distinguish the tests, since [NAME_104] should be held liable for authorising [NAME_110]'s conduct on any of them. His actions in the present case were not merely undertaken as an officer of [NAME_110], in implementing a corporate action, but implementing an arrangement which he developed, and caused the companies to implement, by which [NAME_103]'s business was shifted to [NAME_110] from April 2009 and [NAME_110] continued to grant licences to [NAME_101], where it had no rights to do so derived from [NAME_115], [NAME_80] or [NAME_103] and would not be required to pay licence fees to [NAME_80] under the 2004 Agreement. [NAME_104] was the sole controlling mind of the relevant companies and authorised and undertook each step involved in [NAME_103]'s ceasing business and [NAME_110] assuming its business and granting sub-licences of [NAME_101] to its customers. It seems to me that, whichever test is adopted, [NAME_104] authorised [NAME_110]'s infringement of copyright. 351The next issue identified by the Cross-[NAME_6] is whether [NAME_104] authorised [NAME_137] or [NAME_103]'s authorising [NAME_110]'s infringement of copyright, although that issue might seem to reflect a degree of over-elaboration in the [NAME_117]. The Cross-[NAME_6] submit that [NAME_104] is not liable for authorising [NAME_134] authorising [NAME_110], even if [NAME_110] is infringing copyright and even if [NAME_134] authorised the infringement. It is not necessary to address the position as to [NAME_102] further since I have held above that it did not authorise the relevant infringement and no question of [NAME_104] authorising it to do so can arise. So far as [NAME_103] is concerned, the Cross-[NAME_6] submit that a person can only be liable for authorising copyright infringement if the person authorises the primary infringement. They contend that proposition is implicit in the requirement that the Court must, as noted above, take into account the person's power to prevent the act, the relationship with the person who did the act and whether the person took reasonable steps to prevent the act under s 36(1A) of the Copyright Act and refer to the discussion of that section in Roadshow v iiNet above. It does not seem to me that the section or the reasoning in that case excludes the possibility that one person (here, [NAME_104]) who authorises or causes another (here, [NAME_103]) to authorise the infringement by a third person (here, [NAME_110]) might be treated as authorising the relevant infringement. It will be a question of fact in the particular case where authorisation is established, having regard to the matters identified in s 36(1A) of the Copyright Act. 352As I noted above, it seems to me that [NAME_104] had at least a practical power to prevent the authorisation by [NAME_103] of the infringing conduct by [NAME_110], in the manner noted above, since it would not have occurred had he not exercised his control of [NAME_103] to bring it about; and [NAME_104] not only took no steps to prevent or avoid the doing of the act, which could have included at least causing [NAME_103] to withhold its cooperation by not ceding its business to [NAME_110], but caused [NAME_103] to allow [NAME_110] to take up that business. These matters seem to me to be sufficient to establish that [NAME_104] authorised [NAME_103] to authorise the relevant conduct for the purposes of s 36(1A) of the Copyright Act. Having said that, it is difficult to see that this claim or an affirmative finding as to this matter adds anything of substance to the finding that I have reached above that [NAME_104] directly authorised the relevant infringement by [NAME_110]. Estoppel defence 353The Cross-[NAME_6] pleaded a defence of estoppel although it was not identified in their list of issues. [NAME_208] submit that the limitation period in which to bring an action for infringement of copyright is 6 years and a copyright owner may wait until the last minute to bring an action for infringement if he or she so chooses (LED Builders Pty Ltd v Masterton Homes (NSW) Pty Ltd (1994) 54 FCR 196; 30 IPR 447 at 462-466 per Sheppard J); that [NAME_115] lacked information about the Cross-[NAME_6]' activities, as a result of concealment, and was also inexperienced in business; and that the Cross-[NAME_6] cannot say that [NAME_115]' or [NAME_80]'s delay in taking action was relied on by [NAME_104] or any of his companies or created any expectation that his rights, once the infringements came to light, would not be enforced. They submit that, once [NAME_116] purchased the rights including the copyright, it acted swiftly both to terminate the agreements and to revoke any licence to the extent that any licence remained on foot. 354To the extent that this defence involves some form of representational estoppel, arising from [NAME_115]' or [NAME_80]'s failure to take action in respect of their earlier suspicion that companies associated with [NAME_104] were not paying licence fees, it would be established if, as Deane J noted in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 444, the relevant conduct involved an unconscientious departure by one party: "from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation." 355It does not seem to me that the relevant assumption has been established. The Cross-[NAME_6] do not say, at least in terms, that [NAME_110] continued to grant licences to third parties after April 2009 because [NAME_127]'s inaction in the past had led it to think that such inaction would continue in the future. In any event, it seems to me that there is no unconscionability in [NAME_208] now seeking to assert their rights where, first, the Cross-[NAME_6] had not been transparent, during the period of the delay, as to either the extent or the basis on which [NAME_110] was licensing third parties without paying licence fees, and where [NAME_208]' claim is at least to some extent responsive to the claims brought by [NAME_112] against them. Claim for additional damages 356The [NAME_11] also claim additional damages under s 115(4) of the Copyright Act and accept that they must make out an entitlement to such damages, although quantum is not in issue in the proceedings. 357The [NAME_11] submit that the Cross-[NAME_6] were well aware of [NAME_80]'s rights and the later rights acquired by [NAME_116]. They point to additional factors relevant to the grant of such damages including the flagrancy of the infringement, for the purposes of s115(4)(b)(i) of the Copyright Act. They rely on copyright notices on discs provided by [NAME_127] and on start up screens ([NAME_5] 14.10.13 [121]-[122]; Ex P7, 3/55, [NAME_89] 26.10.12, Ex P7, 3/55) and the acknowledgments as to copyright ownership in the 2002 Agreement (Recital A) ([NAME_89] 26.10.12, Ex P7, 3/41); Exclusivity Agreement (Recital A and cl 7.1(e)) ([NAME_89] 26.10.12, Ex P7, 3/188), the 2004 Agreement (Recital A and cl 7.1(e)) ([NAME_89] 26.10.12, Ex P7, 3/206), the Software Development Agreement dated 11 August 2004 (cl 7.1) ([NAME_89] 26.10.12, Ex P7, 3/225) and the Software Development Agreement dated 30 May 2005 (cl 7.1) ([NAME_89] 26.10.12, Ex P7, 3/238). 358The [NAME_11] also point to the relevance of deterrence, both to deter the Cross-[NAME_6] as well as a broader policy of general deterrence, a relevant matter under s115(4)(b)(ia) of the Copyright Act. They also point to the Cross-[NAME_6]' persistence in infringing conduct after notice of the copyright owner's rights, a relevant matter under s 115(4)(b)(ib) of the Copyright Act. They also point to the letters dated 21 December 2011 from the solicitors for [NAME_127] on the one hand and [NAME_116] on the other to the solicitors for [NAME_102], [NAME_103] and [NAME_110] putting those parties on notice of [NAME_208]' claim that their conduct constituted an infringement of copyright and to the further letters dated 24 January 2012 to the solicitors for [NAME_102], [NAME_103] and [NAME_110] also referring to copyright infringement. They point out that, on 24 May 2013, [NAME_208] filed their [NAME_117], which pleads infringement of copyright in [NAME_101] and user documentation by each of the Cross-[NAME_6] and that, notwithstanding notice by these matters, [NAME_104] and his companies have persisted in the relevant conduct. 359The [NAME_11] also point to what they characterise as a deliberate attempted circumvention of the licensing arrangements by [NAME_104], [NAME_102] and [NAME_103] by purporting to interpose [NAME_110] as licensor, which they contend would be relevant under s 115(4)(b)(i) and (iv) of the Copyright Act. [NAME_208] also contend that substantial benefit has accrued to the Cross-[NAME_6] as a result of their infringements (Ex D4 and T100-101, T146-147, T150-151, T156-157) which would be relevant under s 115(4)(b)(iii) of the Copyright Act. On the findings I have reached, a benefit has accrued to at least [NAME_110] as a result of its infringement of copyright in the form of licence fees from various third parties (Ex D4). [NAME_208] also point out there is a benefit to [NAME_110] in attracting new custom by purporting to offer the software with rollforming machines and contend that the benefit to the Cross-[NAME_6] is not limited to the licence fees lost to [NAME_115], [NAME_80] or [NAME_116]. 360The [NAME_11] drew attention, in the submissions to which I have referred above, to a number of the factors which were applicable under s 115(4) of the Copyright Act to determining whether additional damages should be ordered. The parties did not make substantive submissions as to the case law in respect of such an order. An order for additional damages under s 115(4) of the Copyright Act is of a similar character to an order for exemplary damages at common law: [COMPANY_12] v [COMPANY_16] (in liq) [2007] FCAFC 40; (2007) 157 FCR 564 at [42] per Black CJ and Jacobson J; Facton Ltd v Rifai Fashions Pty Ltd [2012] FCAFC 9; (2012) 199 FCR 569 at [33]-[36] per Lander and Gordon JJ; [COMPANY_27] v [COMPANY_28] (No 3) [2014] FCA 909 at [38] per Yates J. However, additional damages for copyright infringement are not limited to the circumstances in which aggravated or exemplary damages would be recoverable in tort: Luxottica Retail Australia Pty Ltd v Grant [2009] NSWSC 126; (2009) 81 IPR 26 at [39] per White J; Dynamic Supplies above at [42]. An element of penalty is "an accepted feature of copyright legislation", although the courts must also approach the award of additional damages under this section cautiously: Autodesk Inc v Yee (1996) 68 FCR 391 at 394; 139 ALR 735 per Burchett J; Polygram Pty Ltd v Golden Editions Pty Ltd (1997) 76 FCR 565 at 577; 148 ALR 4 per [NAME_203] J; Dynamic Supplies above at [43]. 361Although the factors referred to in s 115(4)(b) of the Copyright Act are relevant to whether additional damages should be awarded, none of them are necessary to an award of additional damages, and the ultimate question is whether the Court is satisfied that it is appropriate to award such damages, including by reference to all other relevant matters. Something in the nature of reprehensible conduct will generally be required for an order for additional damages: Dynamic Supplies above at [45]ff. When an award of additional damages includes a punitive component, the Court must also have regard to the burden that such damages will visit on the infringer: Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 111 ALR 269 at 286-287; 24 IPR 461 per Wilcox J; Dynamic Supplies above at [53]. 362I accept that the Cross-[NAME_6] had notice of [NAME_115]' and [NAME_80]'s claim to copyright, and later to [NAME_116]'s claim to copyright arising under the [NAME_116] Agreement. However, with some hesitation, I have concluded that notice of that copyright was not sufficient to establish flagrancy in [NAME_110]'s conduct, since notice of [NAME_80]'s or [NAME_116]'s claim to copyright does not establish that either [NAME_110] or [NAME_104] knew or ought to have known that it did not have a right to grant licences to third parties in the relevant circumstances. I have not accepted above that a sub-licence was granted by [NAME_102] to [NAME_110] in April 2009, in the manner which [NAME_102] and [NAME_103] (as [NAME_7]) and [NAME_104] (in his evidence) claimed. Nonetheless, again with some hesitation, I am not satisfied that [NAME_110] or [NAME_104] must have known that [NAME_110] had no right to grant licences for the relevant software, where the arrangements between [NAME_127] on the one hand and [NAME_102], [NAME_103] and [NAME_104] on the other had a lengthy history and were not well-documented, so that the question of the rights of entities associated with [NAME_104] to use the software was by no means straightforward. On the other hand, the findings which I have reached above indicate that the conduct of the Cross-[NAME_6] was by no means transparent, and, in particular, they were neither transparent as to the basis on which [NAME_110] was dealing with third parties or the extent to which it had done so without paying licence fees to [NAME_80], and these matters are relevant both to the flagrancy of the breach and are themselves other relevant matters for the purposes of s 115(4) of the Copyright Act. 363It does not seem to me that personal deterrence is likely to be achieved without an order for additional damages, where the quantum of [NAME_80]'s and [NAME_116]'s damages might be quantified by reference to lost licence fees, without regard to the additional benefits which [NAME_110] will have obtained by selling roll-forming machines because of its alibility to package [NAME_101] with those machines. It seems to me that general deterrence would also not be achieved if [NAME_110] were ultimately left in a position where it was substantially better off by reason of its breach of copyright. 364For these reasons, it seems to me that an order for additional damages ought to be made, although the quantum of such additional damages will be matter for determination at the further hearing as to quantum, and will need to have regard to the amount of the damages that would be awarded to [NAME_112] on the ordinary basis and potentially also to the burden that an order for additional damages will impose upon the Cross-[NAME_6], having regard to their individual circumstances. Misleading or Deceptive Conduct ([NAME_117] [67] - [76]) (Cross-[NAME_6] issues 22-28) 365The twenty-second issue identified by the Cross-[NAME_6], in respect of the [NAME_117], is whether the reference to [NAME_101] as "ProCAD" in the start up screens of [NAME_101] licensed by the Cross-[NAME_6] represents that [NAME_102], [NAME_103] and/or [NAME_110] are the owners of the software and source code; represents that [NAME_102], [NAME_103] and/or [NAME_110] are authorised to license the software to third parties; or represents that the software has sponsorship or approval that it does not have. Paragraph 67 of the [NAME_117] pleads that the Cross-[NAME_6] have referred to [NAME_101] as "ProCAD" in the start up screens of [NAME_101] sub-licensed by them to third parties. In paragraph 67 of the Defence to [NAME_117], the Cross-[NAME_6] admit that [NAME_101] has been marketed as "ProCAD" but otherwise deny the allegations. 366The Cross-[NAME_6] submit, and I accept, that referring to "ProCAD" on a start up screen does not make any representation about who owns the software or the source code. That reference is equally consistent with ownership or a licensing arrangement of some kind. The Cross-[NAME_6] submit, and I also accept, that referring to [NAME_101] as "ProCAD" on a start up screen does not, in itself, make any representations that [NAME_102], [NAME_103] or [NAME_110] are authorised to license "ProCAD" to third parties. It seems to me unlikely that such a reference would communicate any such matter to the user of the software, who would assume no more than that "ProCAD" was the name by which the software was known. The Cross-[NAME_6] also point out that there is nothing in the display of the word "ProCAD" on the start up screen to suggest an association with [NAME_102], [NAME_103] or [NAME_110] and the Cross-[NAME_6] have not demonstrated that [NAME_102], [NAME_103] or [NAME_110] have such a reputation in the word that displaying it suggests a reference to [NAME_102], [NAME_103] or [NAME_110]. It also seems to me unlikely that such a reference would communicate anything as to sponsorship or approval, or anything beyond the identity of the program that had been opened, to the user of the software. The Cross-[NAME_6] contend, and I also accept, that referring to [NAME_101] as "ProCAD" on the start up screen, does not make any representations in trade and commerce that "ProCAD" has any particular sponsorship or approval, so no question of a contravention of s 29(g)-(h) of the [NAME_8] arises. 367Given the findings that I have reached above, such representations, had they been made, would have been misleading or deceptive or likely to mislead or deceive in respect of [NAME_102] (since the 2002 Agreement had been abandoned no later than on entry into the 2004 Agreement) and [NAME_110] (which had no rights to [NAME_101] for the reasons noted above). The issue would be more complex in respect of [NAME_103], since it continued to have rights under the 2004 Agreement. It is not necessary to address that issue since I have not found that the representations were made. 368The Cross-[NAME_6] identify further issues as whether statements on [NAME_110]'s website represent that [NAME_110] is the owner of [NAME_101]; or that [NAME_110] is permitted to license [NAME_101] to third parties; or that ProCAD has sponsorship or approval that it does not have; or that [NAME_102], [NAME_103] or [NAME_110] have sponsorship, approval or an affiliation with [NAME_115], [NAME_80] and [NAME_116]; whether the representations on the [NAME_110] website are misleading or deceptive; and whether [NAME_102], [NAME_103] or [NAME_110] engaged in conduct that is misleading or deceptive or likely to mislead in contravention of ss 18 or 29(g)-(h) of the [NAME_8] ([NAME_117] [67], [69]). [NAME_208] submit that the determination of this claim will follow upon the determination of the copyright infringement claim. 369The Cross-[NAME_6] accept that the statements on the [NAME_110] website represent that [NAME_110] was permitted to license [NAME_101] to third parties. It does not seem to me that those statements extend further to any representation about ownership, or any representation about any sponsorship, approval or affiliation with [NAME_5], [NAME_80] or [NAME_116]. The Cross-[NAME_6] submit that the representation that [NAME_110] was permitted to license [NAME_101] to third parties was not misleading or deceptive because, at the relevant time, [NAME_110] was permitted to license [NAME_101] to third parties, because [NAME_102] granted [NAME_110] the right to grant licences using [NAME_137] rights under the 2002 Agreement. I do not accept that submission for the reasons noted above. The Cross-[NAME_6] submit, and I accept, that only [NAME_110] made the relevant representation, namely, that it was permitted to license [NAME_101] to third parties. Paragraph 70 of the [NAME_117] pleads that the domain name for the website is connected to is [NAME_110] and that proposition was put to and accepted by [NAME_104] in cross-examination (T158-159). There is no evidence that, and it was not put to [NAME_104], that [NAME_102] or [NAME_212] (which, as I noted above, had substantially ceased business before the representation was made) had any involvement in the operation of that website. I find that only [NAME_110] engaged in the conduct that I have held to be misleading or deceptive. 370The twenty-sixth issue identified by the Cross-[NAME_6] in respect of the [NAME_117] is whether [NAME_104] is a person involved in the contravention. [NAME_208] contend that, where [NAME_104] is the controlling mind of each of the corporate Cross-[NAME_6], he is a person involved in the contraventions. They submit that, if the Court finds that [NAME_102], [NAME_103] and/or [NAME_110] has contravened ss 18, 29(g) or 29(h) of the [NAME_8], then [NAME_104] is a person involved in the contravention(s) as he has aided, abetted, counselled or procured the contravention; or has been directly or indirectly, knowingly concerned in, or party to, the contravention within the meaning of s 2 of the [NAME_8]. Section 236 of the [NAME_8] in turn provides that a claimant may recover damages from a person involved in a contravention. 371The [NAME_11] recognise that the state of mind required to establish that a person is involved in a contravention is knowledge of the essential elements of the contravention: Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 667 per Mason ACJ, Wilson, Deane and Dawson JJ. They accept that a finding of involvement by [NAME_104] requires that he have knowledge of the falsity of the relevant representations: Australian Competition and Consumer Commission v [COMPANY_17] (in liq) (No 5) [2014] FCA 340; (2014) 98 ACSR 347 at [535] per Yates J. They point out that it is not, however, necessary for them to prove that [NAME_104] knew that the conduct amounted to a contravention of the [NAME_8]: [NAME_220] v [NAME_221] above at 667. They also recognise that, for [NAME_104] to be directly or indirectly knowingly concerned in the contravention by another of a relevant provision, he must have at least some practical involvement in the acts or omissions constituting the contravention: Australian Competition and Consumer Commission v [COMPANY_17] (in liq) (No 5) above at [543]. 372There is no doubt that [NAME_104] was sufficiently associated with the contravention to be involved in it, if the requisite degree of knowledge on his part is established. [NAME_104] accepted in cross-examination that he was the "controlling mind" of, relevantly, [NAME_110] in the sense that he was and is a director and had carriage and control of its business and was responsible for all decisions made in respect of its business. The relevant cross-examination was as follows: "Q. And you are offering to renew the [NAME_101] licence for free for those customers who come across from some other licensor, aren't you? A. Yes. Q. When I say "aren't you", I mean isn't [NAME_110] doing that? A. Yes. Q. And you as the controlling mind of the director of [NAME_110] are authorising that conduct? A. Yeah, on behalf of [NAME_110], yes, that's correct." (T159) 373However, the question of the extent of knowledge required to establish that a director is involved in a company's contravention arising by misleading or deceptive conduct raises questions of real difficulty that were not fully addressed by the parties' submissions. As [NAME_208] recognise, liability for involvement in a contravention at least requires that a director have actual knowledge of the essential facts constituting the contravention ([NAME_220] v [NAME_221] above) and does not require that a director know that the relevant conduct amounted to a contravention of the prohibition on misleading or deceptive conduct under the [NAME_8]. At least some cases indicate that a person can be held liable as involved in a contravention where he or she knows the facts which make the conduct misleading, even if he or she has not recognised its misleading character: Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1. In [NAME_34] of Australia Ltd v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1, Stone J took the view that liability requires that the relevant person know that the conduct was misleading, whereas Moore J (with whom Mansfield J agreed) considered that it was only necessary that he or she knew that the representation would convey a meaning contrary to the facts. In Rafferty v Madgwicks [2012] FCAFC 37; (2012) 203 FCR 1, the [ADDRESS] of the Federal Court observed that the necessary knowledge to establish involvement in a contravention was knowledge of conduct which had the prohibited character, although it was not necessary to establish knowledge of a contravention of the relevant prohibition. 374The [NAME_11] submit that [NAME_104]'s evidence that he held the view that [NAME_102] owned [NAME_101] and could deal with it in any way it pleased, and it did so by sub-licensing [NAME_110] in or about April 2009, should be rejected. [NAME_208] submit that evidence is contrary to the various acknowledgements by the companies associated with [NAME_104] the [NAME_127] owned the copyright in [NAME_101], to which I have referred above; the fact that in May 2008 [NAME_104] proposed an agreement between [NAME_103] and the predecessor to [NAME_110] (Ex P5); and that [NAME_104] sought but did not obtain consent from [NAME_127] to transfer the rights under the 2004 Agreement from [NAME_103] to [NAME_102] in 2009 ([NAME_89] 26.10.12, Ex P7, 3/322, 324, 329, 332-333). I have referred to several of those dealings above. They also contend that [NAME_104] knew from at least 25 February 2004 that [NAME_102] did not have rights to license [NAME_101] (whether as ProCAD or otherwise) in Australia as a result of the Exclusivity Agreement; and that [NAME_110] never had, relevantly, any right to deal with [NAME_101] (whether as ProCAD or otherwise). 375With some hesitation, I have concluded that it has not been established that [NAME_104] was involved with their requisite knowledge in making the relevant misleading and deceptive representation, namely, that [NAME_110] had the right to license [NAME_101] to the parties. I have held above that it has not been established that the suggested assignment of [NAME_137] rights under the 2002 Agreement to [NAME_110] was effected. However, as I noted above in dealing with additional damages under s 115(4) of the Copyright Act, the relationships between the parties had a lengthy history and were not well-documented, and I am not satisfied that [NAME_104] had knowledge, at least at this time, that [NAME_110] did not have at least some rights in respect of [NAME_101]. 376The twenty-eighth issue identified by the Cross-[NAME_6] in respect of the [NAME_117] is whether [NAME_102], [NAME_103] or [NAME_110] have committed an offence in contravention of s 151(g) and (h) of the [NAME_8] as to which [NAME_208] may sue. The Cross-[NAME_6] point out, and I accept, that [NAME_208] do not have standing to bring a claim in respect of such an offence. The [NAME_8] is a schedule to the Competition and Consumer Act and applies as a law by reason of s 131 of the Competition and Consumer Act. Prosecutions for offences under that Act may not be instituted except with the written consent of the Minister or a person authorised by the Minister, unless the proceedings are instituted by the specified authorities, under s 163(4) of the Competition and Consumer Act. There is no evidence of any such consent and this is sufficient to dispose of this claim. Breach of confidentiality/trade secrets ([NAME_117] [77] - [86]) (Cross-[NAME_6] issues 29-32) 377The Cross-[NAME_6] identify the issues in respect of this claim as whether information in a licence key generator is property; whether the information is confidential; whether [NAME_103] owed an obligation of confidence to [NAME_116]; and whether [NAME_134] breached such an obligation of confidence. 378It is common ground that [NAME_115] provided a computer program that generated licence keys that activate [NAME_101] for sub-licensees to [NAME_104] on behalf of [NAME_134], although there is a dispute as to when this occurred to which I will refer below. [NAME_208] contend that the source code for the program was confidential and was provided to [NAME_102], [NAME_103] and [NAME_104] on the basis that it would be kept confidential and not used or disclosed to any other person. They contend that [NAME_104], [NAME_103] or [NAME_102] have disclosed the licence key generator to [NAME_110] in breach of confidence and [NAME_110] has used the licence key generator in breach of confidence. They contend that knowledge of the obligation of confidence can be imputed to [NAME_110] by its director, [NAME_104]. 379Mr [NAME_5]' evidence is that he provided the licence key generator to [NAME_104] for [NAME_103] in 2004 ([NAME_5] 14.10.13 [113]) and that he did not authorise [NAME_104] or [NAME_103] to provide or use the licence key generator for any other purpose and did not authorise [NAME_103] or anyone to disclose the licence key generator to [NAME_110] ([NAME_5] 14.10.13 [115]-[116]). His evidence was that he said words to the following effect to [NAME_104] when he gave him the licence key generator: "This is for your use only for your customers. Don't disclose it to anyone." ([NAME_5] 14.10.13 [118]) 380Mr [NAME_89] claims that the licence key generator was given to him in August 2002 or early 2003, rather than in 2004 in respect of the 2004 Agreement. [NAME_104]'s evidence in reply was that, in early 2003, [NAME_102] received an "authorisation number generating software" program that would allow access to the [NAME_101] program, which allowed [NAME_102] to authorise its customers worldwide to use the [NAME_101] program ([NAME_89] 28.1.13 [31]-[32]). [NAME_104]'s evidence in his further affidavit of 19 March 2014 was that [NAME_115] gave him a copy of the licence key generator program and the source code files that created the licence key generator in August 2002, on a compact disc, two years before the 2004 Agreement ([NAME_89] 19.3.14 [117]; Ex P7, 3/55). That evidence seems to be supported by a printout of the contents of that disc. 381In cross-examination, the difference between [NAME_115]' account as to the licence key generator and [NAME_104]'s account narrowed somewhat, when [NAME_104] gave evidence that he received two versions of the licence key generator, one in August 2002 after the 2002 Agreement at the same time as he picked up the source code, and on the same disk, which was subsequently updated by [NAME_115] from time to time, and another after entry into the 2004 Agreement (T93). [NAME_104] accepted in cross-examination that, obviously enough, if the licence code was not sent to a customer to which [NAME_101] was provided, the customer could not continue to use the software (T94). 382An initial question is whether the information represented by the licence key generator was confidential. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, Gleeson CJ at [30] observed that: "The usual elements for an equitable remedy are, first, that the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of confidence, and thirdly, that there has been, or is threatened, an unauthorised use of the information to the detriment of the party communicating it." 383The Cross-[NAME_6] refer to the decision in Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326, where Hodgson JA (at [40]) identified several factors relevant to whether information is confidential including the extent to which the information is known outside the plaintiff's business; the extent to which the trade secret was known by employees and others involved in the plaintiff's business; the extent of measures taken to guard the secrecy of the information; the value of the information to [NAME_112] and their competitors; the amount of effort or money expended by [NAME_112] in developing the information; the ease or difficulty with which the information could be properly acquired or duplicated by others; whether it was plainly made known to the employee that the material was by the employer as confidential; whether the usages and practices of the industry support the assertions of confidentiality; whether an employee has been permitted to share the information only by reason of his or her seniority or high responsibility; whether the owner reasonably believes these things to be true and that belief is reasonable; and that the information can be readily identified. The Cross-[NAME_6] submit that [NAME_208]' evidence does not address the issues raised by Hodgson JA in [NAME_222] v [NAME_223] above. Those factors are not, with respect, a checklist and it will not always be necessary to address them. The confidentiality of some information may readily be inferred from its character and the surrounding circumstances. 384Mr [NAME_89] denies that [NAME_115] told him that the licence key generator was to be used only for his customers or not disclosed ([NAME_89] 19.3.14 [118]). [NAME_104]'s evidence was also that: "The CD covering label does not say that the contents of the CD are confidential. [CHECK]" ([NAME_89] 19.3.14 [118]) (The reference to "[CHECK]" in that quotation is contained in the text of the affidavit.) [NAME_104]'s evidence was also that [NAME_115] provided [NAME_102] and [NAME_103] with updates to the licence key generator program from time to time ([NAME_89] 19.3.14 [119]) and that [NAME_127] "did not impose any restrictions on [NAME_112]' use of the Licence Key Generator" ([NAME_89] 19.3.14 [120]). I understand [NAME_104]'s evidence to be intended to suggest, at least by implication, that the licence key generator was not confidential, because he was not expressly told it was confidential, or the label to the compact disc did not indicate it was confidential, or that he did not understand it to be confidential for that reason. It seems to me that this evidence is not credible and the fact that it was given is adverse to [NAME_104]'s credit. [NAME_104] has plainly been involved in distributing operating systems for rollforming machines and associated software for a considerable period and there is no suggestion that he did not understand that the [NAME_31] of a licence key would authorise the operation of that software and that any person who obtained access to a licence key generator would have the practical ability to authorise access to the software without the licensor's consent. The evidence to which I have referred above indicates that the licence key generator was plainly confidential and, so far as [NAME_104]'s evidence is concerned, the confidentiality of the licence key generator was self-evident. 385The next question is whether the Cross-[NAME_6] breached confidentiality in respect of that information. [NAME_115]' evidence was that, if [NAME_110] had been sub-licensing [NAME_101] to third parties, it would have had to have access to the licence key generator to make [NAME_101] work for those sub-licensees ([NAME_5] 14.10.13 [120]). I accept that evidence and find that confidentiality in the licence key generator was breached on that basis. 386The Cross-[NAME_6] also contend that, even if the licence key generator is confidential, the Cross-[NAME_6] have not breached any obligation of confidence because they have contractual rights to use confidential information and trade secrets. They refer to a right to use know-how and trade secrets conferred on [NAME_102] under the 2002 Agreement. However, that does not assist the Cross-[NAME_6], because I have held that the 2002 Agreement was abandoned by at least the time of the entry into the 2004 Agreement. The Cross-[NAME_6] also contend that the 2004 Agreement grants [NAME_103] the rights to use confidential information such as the licence key generator and refer to the non-exclusive licence of the "Software" (as defined) granted to [NAME_103] under cl 2.1 of that agreement, and to the definition of "Software" as including the: "know how ... and trade secrets necessary for the implementation of the Software" (cl 1.1). I accept that [NAME_103] has a continuing right to use the licence key generator in respect of licences to customers under the 2004 Agreement. However, the right to use the licence key generator to generate licences conferred under the 2004 Agreement did not extend to a right to provide it to [NAME_110] so that it could generate licences for software provided to customers which it did not have a right to grant under the 2004 Agreement or otherwise. I also have not accepted the Cross-[NAME_6]' claim that a sub-licence was granted to [NAME_110] in April 2009 so as to confer any rights arising under that agreement on [NAME_110]. 387The Cross-[NAME_6] also contend that, if there was an obligation of confidence, it was owed to [NAME_127] and not to [NAME_116]. They accept that certain types of information such as trade secrets may be transferred or held in trust or charged (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [118]) but contend that [NAME_208] have not established that the licence key generator was a trade secret in the relevant sense. It is not clear to me that the submission is of immediate relevance, since [NAME_80] as well as [NAME_116] have brought the relevant claim. The claimed breach of the duty of confidentiality is therefore established. Trade mark infringement ([NAME_117] [87] - [101]) (Cross-[NAME_6]' issues 35-38) 388FIPL also brings a claim for trade mark infringement in respect of the use of the Australian trade mark for "[NAME_100]" as to which [COMPANY_92] is the registered owner. The claim is pleaded by reference to the use of "[NAME_100]" on a website maintained by [NAME_110], and [NAME_116] relies on screenshots of that website in November 2011, November 2012 and February - April 2013. [NAME_116] in turn pleads that use is in relation to goods in respect of which the trade mark is registered and constitutes infringement of the trade mark pursuant to s 120(1) of the Trade Marks Act 1995 (Cth). [NAME_131]'s affidavit dated 31 October 2013 set out two examples of the alleged infringing use in print outs of [NAME_110]'s website dated 19 November 2012 and 13 February 2013. The relevant parts of the website read: "[NAME_99] ● If you are an existing [NAME_101] licensed user - ... ● On [NAME_101] version 11.603 or earlier - later versions possible ... ● Don't wish to pay annual Licence fees or deal with [NAME_83]. ... SFS International will renew your [NAME_101] licence free." (Ex P7, Vol 6, Annexure SMTN). 389The Cross-[NAME_6] identify the issues in respect of this claim as whether [COMPANY_92] is entitled to be registered as the owner of the registered trade mark "[NAME_99]"; whether the display of the phrase "[NAME_100]" on the screenshots of [NAME_110]'s website is using the registered trade mark as a trade mark in relation to registered goods; whether the display of the phrase "[NAME_100]" is using a sign in good faith to indicate the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; whether [NAME_102], [NAME_103] or [NAME_110] are infringing the registered trade mark; whether [NAME_104] is liable for the infringement of the registered trade mark; and whether the Cross-[NAME_6] are liable for additional damages in this respect. 390An initial issue arises as to whether [NAME_116] has standing to bring this claim where [COMPANY_224] is the registered owner of the relevant trade mark. [NAME_116] claims to be an authorised user of the relevant trade mark under s 8 of the Trade Marks Act and claims standing to bring trademark infringement proceedings under s 27(2) of the Trade Marks Act as the authorised user of the trademark ([NAME_130] 31.10.13, [60]-[70]). The position in respect of the trade mark is confusing, where it appears that [NAME_127] initially assigned the mark to [NAME_116] under the Purchase Agreement; [COMPANY_92] rather than [NAME_116] subsequently registered the mark, although it is unclear how it had acquired an interest in it; and [NAME_116] now claims standing to bring the claim in reliance on an undocumented arrangement by which it is said to have become an authorised user of the mark. The evidence of that arrangement can only be described as unsatisfactory, amounting to little more than conclusory assertions in [NAME_131]'s affidavit dated 31 October 2013, that inverted the relevant parties - at least if [NAME_116]'s present claim to standing is to be accepted - as follows: "[NAME_84] has licensed and continues to licence [COMPANY_225] non-exclusively to us (including with the right to apply for registration of and sublicence) the Trade Marks in Australia. [COMPANY_225] uses the Trade Marks, and sublicences that use under the control of [NAME_84]." In oral evidence, [NAME_131] indicated that the reference to "[COMPANY_225]" in this evidence should be to "[NAME_84]" (to which I have referred as [NAME_116]) and the reference to "[NAME_84]" should be to "[COMPANY_225]". An allegation of trade mark infringement seems to me to be a serious matter and whether the person making it has standing to bring it is also a serious matter, to be determined by reference to the gravity of the matters alleged in accordance with s 140 of the Evidence Act 1995 (NSW). I am not satisfied, having regard to the nature of the allegation and the perfunctory quality of [NAME_131]'s evidence as to this matter, that [NAME_116] has standing to bring the claim. I am also not satisfied the claim is established for other reasons to which I will refer below. 391The thirty third issue identified by the Cross-[NAME_6] in respect of the [NAME_117] is whether [COMPANY_92] was entitled to be registered as the owner of the registered trade mark "[NAME_99]." The Cross-[NAME_6] recognise that [COMPANY_92] is registered as the owner of the Australian trade mark registration number 1468419 "[NAME_100]". They point out that a court may rectify the trade mark register on the application of an aggrieved person under s 88 of the Trade Marks Act on the same grounds as a person may oppose the registration of a mark. They also point out that paragraph 88 of the Defence to [NAME_117] pleads that the Cross-[NAME_6] "do not admit" that [COMPANY_92] was the owner of the mark and was entitled to be registered as the owner of the mark. However, the non-admission of this matter does not amount to the assertion of any positive claim that [NAME_116] was not the owner of the trade mark or was not entitled to be registered as owner of the mark, still less a claim to rectification of the trade mark register, in proceedings to which the owner of the trade mark is not party. The Cross-[NAME_6]' submissions go well beyond the pleaded defence in seeking to advance affirmative reasons why the mark should not be registered. It does not seem to me that the Cross-[NAME_6] can bring a claim to rectification of the entry in the trade mark register by pleading no more than that they do not admit its basis. The claim by the Cross-[NAME_6] for rectification of the register fails because [NAME_208]' pleaded case does not permit it to be advanced. 392The next issue is whether the references to "[NAME_100]" on [NAME_110]'s website amounted to a use of the registered trade mark as a trade mark so as to amount to an infringement of the mark within the meaning of s 120(1) of the Trade Marks Act. That section provides as follows: "(1) A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered. Note 1: For registered trade mark see section 6. Note 2: For deceptively similar see section 10. Note 3: In addition, the regulations may provide for the effect of a protected international trade mark: see Part 17A." Section 17 in turn contains a definition of a trade mark in the following terms: "A trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person. Note: For sign see section 6." The term "sign" is defined in s 6 as follows: "sign includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent." 393In order to establish infringement of the trade mark under s 120 of the Trade Marks Act, [NAME_116] must establish that one or more of the Cross-[NAME_6] have used, as a trade mark, a sign that is substantially identical with or deceptively similar to the trade mark in relation to goods or services in respect of which the trade mark is registered. Several authorities are relevant to determining whether the reference to "[NAME_99]" on [NAME_110]'s website, which plainly had something of a descriptive character about it, is properly characterised as use as a trade mark or would have appeared to consumers as possessing the character of a brand, to adopt a formulation approved by the [ADDRESS] of the Federal Court in [COMPANY_226] v Nestlé Australia Ltd [2010] FCAFC 117; (2010) 272 ALR 487 at [37]. 394In Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326; 101 ALR 700, the [ADDRESS] of the Federal Court observed that the word 'CAPLETS' had not been used as a trade mark on the packaging of a paracetamol product. [NAME_203] J noted (at 341) that: "The context in which CAPLETS appears on the TYLENOL packaging and in its advertising demonstrates plainly in my opinion, that the use is essentially descriptive and not a badge of origin in the sense that it indicates a connection in the course of trade between the product TYLENOL and the appellant. A person looking at the packaging would assume that the word CAPLETS describes or indicates the shape of the product contained in it or the dosage form." Gummow J (as his Honour then was) also observed (at 347-348): "Where the trade mark allegedly used by the defendant comprises ordinary English words (such as "Page Three", considered by Slade J in News Group Newspapers Ltd v The Rocket Record Co Ltd [1981] FSR 89 at 102) then, as this decision illustrates, that circumstance may be taken into account by the court in the process of reasoning by which it accepts or rejects a submission that the use in question is not a trade mark use but a description of the goods in question. To say that is not to gainsay the point made by Dixon CJ in [COMPANY_227] v [COMPANY_228] (the Tub Happy case) (1956) 95 CLR 190 at 194-195 that language is not always used to convey a single, clear idea; a mark may have a descriptive element but still serve as a badge of trade origin. However, where the issue is one of infringing use by use of a word mark (as in the present case), the fundamental question remains, to paraphrase what was said by Williams J in the same case (supra) (at 205), whether those to whom the user is directed are being invited to purchase the goods (or services) of the [NAME_6] which are to be distinguished from the goods of other traders "partly because" (emphasis supplied) they are described by the words in question." 395In [COMPANY_36] (t/as Frito-Lay Australia) v Kettle Chip Co Pty Ltd (1996) 135 ALR 192; 33 IPR 161, the [ADDRESS] of the Federal Court, in dealing with the use of the word 'KETTLE', held that it was not used as a trade mark in respect of kettle cooked potato chips. Sackville J, with whom [NAME_203] J agreed, observed (at 213): "The purpose and effect of the words are to be determined by having regard to the context in which they are used. ... It is necessary to consider the words used, as they present themselves to buyers or potential buyers of Frito-Lay's chips who are to form a view about what they are meant to connote." 396In Coca-Cola Company v All-Fect Distributors Ltd [1999] FCA 1721; (1999) 96 FCR 107 at [19], the [ADDRESS] of the Federal Court observed that: "Use "as a trade mark" is use of the mark as a "badge of origin" in the sense that it indicates a connection in the course of trade between goods and the person who applies the mark to the goods ... That is the concept embodied in the definition of "trade mark" in s 17 - a sign used to distinguish goods dealt with in the course of trade by a person from goods so dealt with by someone else. " That approach was approved by French CJ, Gummow, Crennan and Bell JJ in E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15; (2010) 241 CLR 144 at [43]. In Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] FCA 986; (2013) 102 IPR 400 at [90]-[92], Jacobson J in turn summarised the applicable principles as follows: "When a claim for infringement is made, a pivotal question is whether the use complained of is use by the alleged infringer as a trade mark. The answer to that question requires an understanding of the "purpose and nature" of the impugned use: Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 at 347 (Gummow J), citing [NAME_230] at 426 per Kitto J. Use "as a trade mark" is use as a "badge of origin" in the sense that it indicates a connection in the course of trade between goods and the person who applies the mark to the goods. This is the concept embodied in the definition of a trade mark in s 17 of the Trade Marks Act, namely as a sign used to distinguish goods dealt with in the course of trade by a person from goods so dealt with by someone else: Coca-Cola Co v All-Fect Distributors Ltd (1999) 96 FCR 107 at [19] (Black CJ, Sundberg and Finkelstein JJ); E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144 at [43]. In Coca-Cola at [20] their Honours went on to say that the authorities (including [NAME_230] and [NAME_231]) show that the question is whether the sign used indicates origin of goods in the user of the sign; whether there is a connection in the course of trade between the goods and the user of the sign." 397FIPL's written submissions as to whether the relevant use was "use" for the purposes of the Trade Marks Act are somewhat conclusory in character, as follows: "As submitted, the [NAME_10] [NAME_100] are clearly being used to distinguish the software (the goods) form those of other traders. This constitutes 'use' of the Trade Mark pursuant to section 7 of the Trade Marks Act and to distinguish the goods in the course of trade: section 17 of the Trade Marks Act." 398The Cross-[NAME_6] respond that [NAME_110] did not use the trade mark as a trade mark and did not infringe s 120 of the Trade Marks Act. They submit that [NAME_110] was merely using the phrase "[NAME_100]" to describe the software, because that was the name of the software, rather than as a badge of origin to indicate a connection in the course of trade. [NAME_104]'s evidence, in answer to a question as to how the product could be marketed as "[NAME_101]" was, simply enough, "[b]ecause that's what it is" (T160). His evidence in cross-examination (T161) was, in effect, that the phrase was used to identify the software since "there are some customers that understood it as "[NAME_99]"", in circumstances that there was no practical way of doing so other than by use of that phrase as a description of the product. I accept this submission. It seems to me that the relevant use was merely to identify the software with which [NAME_110] (wrongly) claimed to be entitled to deal. To adopt the language of Gummow J in [NAME_231] above, users of [NAME_110]'s website were simply being told what software [NAME_110] offered to renew, not being invited to acquire the goods (or services) of [NAME_110] on the basis that they were distinguished from the goods of other traders partly because they were described by the phrase "[NAME_99]." 399The Cross-[NAME_6] also contend that, even if they used the trade mark as a trade mark, they did not infringe that trade mark because they were using the sign in good faith to indicate a characteristic of the goods, namely to describe the software, under s 122(1)(b) of the Trade Marks Act. It is not necessary to determine this question given the findings that I have reached above, although the descriptive character of the usage of the phrase "[NAME_99]" on [NAME_110]'s website would have gone some way to establishing that defence. 400Next, the Cross-[NAME_6] contend that they were (or [NAME_110] was) not infringing the trade mark because the registered trade mark owner's predecessors in title granted them the right to use the trade mark in relation to [NAME_101]. They rely on rights to use the trade mark conferred on [NAME_102] under the 2002 Agreement. I would not have accepted this submission, had it been necessary to determine the question, both because that agreement had been abandoned by 2004 as noted above and because it did not confer any right to use the trade mark on [NAME_110]. The Cross-[NAME_6] also rely on the grant of rights to [NAME_103] under the 2004 Agreement. This issue does not arise and, in any event, the relevant website was operated and the mark used by [NAME_110] rather than [NAME_103] and the grant of rights to [NAME_103] under the 2004 Agreement would not have assisted [NAME_110] in that regard. The further issues whether [NAME_104] is liable for the infringement of the registered trade mark and whether the Cross-[NAME_6] are liable for additional damages in this respect also do not arise. Summary and orders 401In summary, I have held that the 2002 Agreement resulted in the grant of a non-exclusive licence to [NAME_102] to use [NAME_101] in a particular form, as at July 2002, and as updated by updates provided by [NAME_115], which was not restricted to licensing [NAME_101] to [NAME_135]. The 2002 Agreement was, however, abandoned no later than the date of entry into the 2004 Agreement. I have held that the 2004 Agreement did not limit [NAME_103] to licensing [NAME_101] and updates to customers who were purchasing a "complete turnkey solution", and was not limited to a period of seven years or to existing customers at the end of that period. I have held that [NAME_103] did not breach the 2004 Agreement by reason of non-payment of licence fees for licences granted by [NAME_110] in the relevant period and the termination of the 2004 Agreement was not effective. I have held that the [NAME_6] were only obliged to provide new releases of [NAME_101] compatible with [NAME_119] version 4, otherwise unless agreed in writing, under the 2004 Agreement; that both parties had breached the obligations under the 2004 Agreement to enter into an escrow agreement; and that an order for specific performance of that obligation should not now be made. [NAME_112]' claims in respect of breach of contractual obligations regarding development services, confidential information and good faith, the tort of conspiracy, misleading or deceptive conduct, unconscionability, the tort of inducing breach of contract and for groundless threats of infringement have not been established. 402The [NAME_11] have succeeded, in significant respects, in respect of the [NAME_117]. I have held that three identified versions of [NAME_101] are subject to a proper claim for copyright. I have held [NAME_110] liable for copyright infringement and that [NAME_103] and [NAME_104] had authorised the relevant infringement by [NAME_110] and that [NAME_208] are entitled to additional damages under the Copyright Act in respect of the infringement. [NAME_208]' claims for misleading or deceptive conduct against [NAME_110] regarding representations on its website and for breach of a duty of confidentiality against the Cross-[NAME_6] have also been established. [NAME_208]' claim for trade mark infringement has not been established. 403I will hear the parties as to whether any orders are properly made at this point to give effect to the findings in this judgment and as to any further directions which should be made in respect of the further hearing as to quantum.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2014