Findings of fact
12 In early 2010, Mr Lal and Hemant Batra (Mr Batra) held discussions about establishing an international network of law firms. Mr Batra was then the managing partner of a law firm based in New Delhi, known as Kaden Boriss Legal LLP. These discussions were held with Mr Ramrakha's knowledge and consent. Mr Ramrakha agreed that Mr Lal would take the lead in these discussions, with his (Mr Ramrakha's) full support.
13 Shortly after commencing these discussions, Mr Lal and Mr Batra approached Chee Chun Woei (Mr Chee), the managing partner of a law firm based in Singapore called Intelleigen Legal LLC (Intelleigen), and Fayez Al Dosari (Mr Dosari), the senior partner in a law firm based in Kuwait called Al Oula, to see whether they would be interested in joining the proposed network. Discussions progressed between Mr Batra, Mr Lal and Mr Chee. The evidence suggests that Mr Dosari did not participate in any significant way, if at all, in these discussions. Mr Batra, Mr Lal and Mr Chee agreed that they would establish an alliance of law firms called Kaden Boriss Legal or Kaden Boriss (the evidence is not clear) and that the name would be "owned" by a Singaporean company they intended to call Kaden Boriss Pte Ltd, which Mr Chee would register and which would provide services to the network. Even though the name would be "owned" by the company, the evidence is that each participant in the network would "own" the name in that participant's home jurisdiction. How this arrangement was to work legally is not clear. A draft Memorandum of Understanding was circulated, but not executed.
14 On 10 August 2010, the Singaporean company, called Kaden Boriss Services Pte Ltd (Kaden Boriss Services), was registered. On 6 December 2010, Mr Chee circulated a draft constitution and membership agreement. These documents were never finalised.
15 Around this time, Kaden Boriss Services engaged Pulse Creative Group Pte Ltd (Pulse), another Singaporean company, to provide design, branding, art direction and corporate communications services for the network. This included the creation of logos. Mr Lal's evidence is that Pulse and Kaden Boriss Services entered into an agreement dated 30 August 2010 (the Agreement). The copy of the Agreement in evidence is not executed. Mr Lal's evidence is that Mr Chee informed him that he had executed the Agreement on behalf of Kaden Boriss Services. The applicants rely on the Agreement as a contract between Pulse and Kaden Boriss Services, and the respondents do not demur. Indeed, as I later explain, the respondents advance the Agreement as an impediment to the applicants' pleaded claim that they are the owners of the copyright subsisting in the Kaden Boriss Logos.
16 In January 2011, Mr Batra and Mr Lal discussed the continuing involvement of Intelleigen in the network. According to Mr Lal, there was concern about whether Intelleigen was "the right fit". The upshot of these discussions was that Mr Batra and Mr Lal resolved that Intelleigen should not join the network. This decision was communicated to Mr Chee on 23 January 2011. As the proposed network would no longer have a connection with Singapore, the decision was made to wind up Kaden Boriss Services. The company was struck off the Singapore Accounting and Corporate Regulatory Authority Register on 14 October 2011.
17 Prior to this happening, Pulse was asked to continue its work for the network, with invoices to be issued to Mr Lal. Mr Lal's evidence is that, from January 2011, he regularly communicated with Pulse about branding, to obtain assistance with preparing event invitations and newsletters, and with the network's ongoing marketing efforts. His contact was Ms Lani Fried.
18 On 4 February 2011, Pulse delivered the final version of the Kaden Boriss Logos to Mr Lal and Mr Batra. Pulse issued a final invoice for this work on 23 September 2011 (Invoice #2192f). Invoice #2192f was paid by the applicants' firm, but overall the payment of Pulse's fees was shared by Mr Lal and Mr Batra. Mr Lal accepted in cross examination that Mr Chee also paid some invoices. In other words, Pulse was never paid by Kaden Boriss Services. It was only paid by stakeholders in the Kaden Boriss network. At the time of final payment, the only stakeholders were Mr Lal (or his firm) and Mr Batra (or his firm).
19 On 3 August 2011, the applicants registered the name Kaden Boriss as a business name in New South Wales. On 1 September 2011, LBR Legal rebranded to Kaden Boriss and commenced providing services under that name and the Kaden Boriss Logos. For convenience, I refer to this firm as Kaden Boriss Sydney to distinguish it from the respondents' firm, referred to below.
20 On 10 February 2012, the applicants registered Kaden Boriss as a business name in the Australian Capital Territory. By that time, they had commenced providing services in the Australian Capital Territory and had opened an office in Canberra, which had one full-time employee. The applicants' firm now has a serviced office in Canberra. The firm also has serviced offices in Perth (since around 2012), Melbourne (since around October 2016) and Adelaide (since around October 2016), although the firm no longer uses the Kaden Boriss name or other indicia.
21 Between September 2011 and December 2016, the applicants' firm engaged in promotional and public relations activities with a view to raising the profile and reputation of the Kaden Boriss brand in Australia.
22 In 2013, the applicants decided to expand the presence of Kaden Boriss in Australia and internationally. They identified a number of potential target firms based in Adelaide, Dubai, Fiji and Copenhagen.
23 At this time, Mr Lal came into contact with the respondents, through a mutual acquaintance. The respondents were partners in a law firm called MVM Legal, which specialised in insurance law (particularly, workers compensation law) and had a niche practice in safety work. He wanted to gauge their interest in becoming part of the Kaden Boriss network.
24 On 15 February 2013, Mr Lal and the second respondent, Mr van Brunschot, met in Brisbane at MVM Legal's office to discuss the potential alliance. This was followed by a meeting at Kaden Boriss Sydney's office on 19 April 2013 attended by the respondents, the applicants, and two of the applicants' then partners, Ms Kikinis and Ms Chandler. Mr Lal's evidence is that one purpose of the meeting was to explain "the vision" of the Kaden Boriss network. Mr Lal informed Mr Batra of the discussions.
25 Following the meeting, Mr Lal sent the following email to Mr van Brunschot (formal parts omitted) on 25 April 2013:
It was good to meet you and Jamie last week. Following on from our discussions regarding the inclusion of MVM Legal to Kaden Boriss, I have had detailed teleconferences with Hemant Batra who as I explained is the managing partner of our Delhi office and founder of Kaden Boriss.
I have copied Hemant in this email.
As explained we have great plans of expansion for Kaden Boriss globally and we are quite excited about this. Unfortunately time has restricted us in this regard over the past 12 months however there is real determination over the course of the year to have new firms join us. We are delighted about our discussions with you and feel you will enjoy being part of our Kaden Boriss. Our experience shows, the association will lift your profile in the local market and expose the office internationally to benefit from.
Our association with Delhi for example was an added advantage for us to secure a client in litigation over the Christchurch earthquake.
I can personally vouch that our office profile has been taken to another level and with larger client base. We are fortunate of seeing synergies between all offices although our Delhi office specialises in non insurance work.
At Kaden Boriss we are very proud of our growing brand and that has come through hard work.
We welcome your firm to the Kaden Boriss team and after further consideration, we request the following terms:
1. You may retain MVM Legal and adopt the name Kaden Boriss. For example and not limited to, it could be MVM Kaden Boriss. If things work out over the next 12 months, we would request removal of MVM.
2. Adopt a common style website at your expense through our nominated marketing firm in Singapore for consistency.
3. Consistent stationary [sic] and marketing material.
4. As a goodwill gesture we shall waive US $5,000 to join the firm which I deliberately did not touch upon with you. I can advise that I paid this fee upon merging.
5. You maintain autonomy in how you run your office as there is no sharing of financial information etc.
6. We request agreement to share 20% of fees received from any referral of work for life of that client. This works both ways and is on mutual trust.
7. We would like to commence the association from 1 July 2013. Prior to that, I can give you some ideas on transitioning as we have gone through this process and did not loose [sic] any corporate clients like Allianz, QBE and CGU to name a few.
Please give this some thought and should you have any questions or wish to discuss further, please do not hesitate to contact me.
On another issue, as mentioned, I am taking 13 people from the office to Singapore on 7 June. Hemant is looking to join with a couple of his partners. If things proceed between us, we welcome you to join in the meet and greet in Singapore which will be low key on this occasion but will give you the opportunity to meet some of the partners from Delhi. Something for you to just consider.
Hemant is also close to finalising an association with a Middle East firm in coming weeks and we will have good news to share.
We look forward to your reply.
26 After some negotiation on matters that are peripheral to this proceeding, the respondents agreed to be part of the network, but no formal agreement between the parties was executed or proposed. The parties accept that the email of 25 April 2013 encapsulates the terms of their relationship.
27 From 3 July 2013, the signature template on correspondence from MVM Legal was amended to include the statement: Part of the Kaden Boriss Group. From 22 August 2013, this statement was removed. Instead, all out-going email messages from MVM Legal announced that, from 1 October 2013, MVM Legal would be known as Kaden Boriss Brisbane.
28 On 1 October 2013, MVM Legal officially rebranded to Kaden Boriss. On that day, Mr Lal forwarded email correspondence to Mr Batra that had passed between Mr Lal and Mr van Brunschot, welcoming the respondents to the Kaden Boriss network. At that time, and later, respondents engaged in their own marketing activities to promote their legal practice using the Kaden Boriss name, the Kaden Boriss Logos and other Kaden Boriss indicia. The evidence shows that the respondents used Kaden Boriss simpliciter. They also used the name and style Kaden Boriss Legal and Kaden Boriss Brisbane. No matter what iteration was used, the dominant element comprised the words Kaden Boriss. It is convenient to refer to the respondents' firm from this time on as Kaden Boriss Brisbane to distinguish it from the applicants' firm.
29 By that time, there were three firms in the network - Kaden Boriss Sydney, Kaden Boriss Brisbane, and Kaden Boriss Legal LLP in New Delhi. Firms in other countries joined at later times.
30 In early August 2016, Mr Lal and Mr Batra met in India. At this meeting, Mr Batra gave Mr Lal a draft Code of Conduct he had prepared for Mr Lal's consideration. Mr Lal reviewed the draft Code of Conduct during the meeting and noticed that it included, according to him, "some unusual terms", including that ownership of the Kaden Boriss brand be divided between Mr Batra (as to 50%), Mr Batra's wife (Preeti Batra) (as to 15%) and Mr Lal (as to 35%), and that these rights could only be transferred to their respective children. Further, the draft Code of Conduct required all firms within the network to use a company in Bangalore - called Webenza - for all website and social media activities.
31 In a later telephone conversation, Mr Lal informed Mr Batra that he (Mr Lal) did not agree with Mr Batra's proposed ownership or succession plans.
32 On 23 September 2016, Mr Batra sent Mr Lal the proposed Code of Conduct in final form. On 30 September 2016, the proposed Code of Conduct was discussed at a partners' meeting of Kaden Boriss Sydney (by this time, Mr Chander was a partner).
33 On 6 October 2016, Mr Lal communicated with Mr Batra using WhatsApp. Certainly by this time, Mr Lal's relationship with Mr Batra had soured. From Mr Lal's point of view, Mr Batra had paid little interest in the network for some time, while he pursued a political career in India. Mr Batra had recently rekindled his involvement in the network and, in Mr Lal's eyes, was seeking to change the basis on which he and Mr Lal had started it, and how Mr Lal had conducted it. Mr Lal informed Mr Batra that Kaden Boriss Sydney would not agree to the Code of Conduct or to engage Webenza in relation to the network's website. The exchange appears to have become quite heated. It escalated to the stage of Mr Lal stating that if Mr Batra wanted Kaden Boriss Sydney "out" of the network, he should say so. The exchange terminated inconclusively. However, on that day, Mr Lal sent Mr van Brunschot a WhatsApp message, stating:
Hi as a courtesy events have taken place extremely fast in the past few days and as a consequence Sydney and associated offices with us will be removing ourselves from Kaden Boriss
34 In that exchange, Mr Lal also said:
We are very nervous in Sydney of passing control to a Bangalore company any other issues and feel for longevity and future partners sake, it will be unfair
35 On 7 October 2016, Mr Lal informed his partners that, overnight, "the situation with Batra has escalated" and that he had informed Mr van Brunschot that "our offices will be leaving the Kaden Boriss network". This is a reference to Kaden Boriss Sydney's offices. Mr Ramrakha suggested that discussions should be held with the respondents to "get a feel for what their plans are and whether there is a way forward for all of us". It was agreed that Mr Ramrakha and Mr Chander should hold discussions with the respondents.
36 On the same day, the applicants registered the business name Kaden Boriss Melbourne, notwithstanding the events I have just described. At the time, the respondents were not aware that the applicants had registered this business name.
37 On 11 October 2016, Mr Ramrakha and Mr Chander met the respondents in Brisbane. At the meeting, Mr Ramrakha said that he and Mr Chander wanted to discuss how Kaden Boriss Sydney and Kaden Boriss Brisbane could "continue to work together" given Kaden Boriss Sydney's "exit from the network".
38 According to Mr Ramrakha, Mr Chander said that "it would make business sense to consider a new structure and to have a brand that could be affiliated with the broader offering of a multidisciplinary practice" and that it was "attractive" to rebrand.
39 According to Mr Chander, it was Mr Ramrakha who raised the prospect of rebranding, saying that Kaden Boriss Sydney wanted to keep the Kaden Boriss name for "the Work Place Safety offering only" but that "the remainder of the business would be rebranded". Further, according to Mr Chander, Mr McPherson raised the question whether, if Kaden Boriss Brisbane left the network, they (Kaden Boriss Brisbane) could continue to use the Kaden Boriss name. Mr Ramrakha's response was that they could because "we own that brand in Australia". It is not clear who "we" refers to in this evidence. Nonetheless, according to Mr Chander, Mr McPherson said that he would like to obtain legal advice on that matter.
40 Mr van Brunschot's understanding of the meeting was that Kaden Boriss Sydney, and Mr Lal in particular, had "issues" with Mr Batra, that they were thinking of rebranding and starting their own network in Australia and Singapore, and that they wanted to know if the respondents would participate in such an arrangement with them. His evidence was that Mr Ramrakha did not say "we own that brand in Australia". He said that, had such a statement been made, it would have been significant and noted by him. Further, his evidence was that he does not recall Mr Ramrakha suggesting that the Kaden Boriss name might be kept for use in relation to workplace safety work. Mr van Brunschot said that it was he (Mr van Brunschot) who asked about the "overall status of the Kaden Boriss name in Australia" and suggested that advice from an intellectual property lawyer should be obtained. He said that he had asked that question because he considered that the respondents would be at risk if they used the Kaden Boriss name without Mr Batra's permission.
41 In his evidence, Mr McPherson expressed a similar understanding of the meeting. He recalled Mr Chander stating that "the Sydney office was thinking about starting their own network in Australia and Singapore under a new brand". In this connection, he also recalled Mr Chander saying that he would prefer to devise a new brand but that "they might also try and make use of the name Kaden Boriss". Mr McPherson said that neither Mr Ramrakha nor Mr Chander "asserted any ownership rights in the [Kaden Boriss] brand"; nor did they suggest in the course of the meeting that "they (the Sydney office, and Mr Lal in particular) owned the Kaden Boriss brand in Australia." Further, Mr McPherson said that "Mr Ramrakha did not suggest that the intention of the Sydney office was to keep the Kaden Boriss brand and use it only for workplace safety work". Mr McPherson's state of mind was that Mr Batra was the "owner of all elements of the brand". He recalled Mr van Brunschot suggesting that advice be obtained from an intellectual property lawyer concerning "the overall status of the Kaden Boriss name in Australia". He went further and said that Mr Chander had agreed that this was an important issue and that "they needed to find a way to get around Mr Batra owning the name".
42 The meeting concluded with the respondents expressing their desire to discuss options between themselves. They nevertheless indicated their preparedness to continue discussions with the applicants and Mr Chander even though the respondents had reached the provisional view that their firm would remain in the network.
43 On 12 October 2016, Mr van Brunschot sent an email to Mr Ramrakha and Mr Chander suggesting a meeting with the Sydney "team" on 24 October 2016. In the email, Mr van Brunschot said that, to ensure the meeting was "meaningful":
We need to obtain advice on the IP issues re the name in Australia, so we know where we stand prior to this meeting. We will share in the costs of this advice and it should be an external advice is our view. Assuming we are on safe ground here, what do we need to do to protect our interests in the name in Australia? We need to know this and have a game plan prior to the meeting is our view.
44 In the email, Mr van Brunschot asked that an agenda for the proposed meeting be provided. He also suggested that the respondents be provided with "some proposal re an Australian entity".
45 Mr Chander responded cordially by email the same day. The salient parts of his response are:
Some initial thoughts for consideration.
· We need to guard the confidentiality of our meetings and discussion until we choose to communicate more widely - in this regard, can we refer to these discussions and forums as "Project WIN"? (What's in a Name). Happy for alternative suggestions.
· If we continue to use the name KB, we will always be presented with the threat (potential or real) of litigation, or in the least, some distraction. If we choose to abandon the name, this may be a fantastic opportunity for us to come together with our existing businesses and clients and to rebadge ourselves with a new name selected by all of us - this would give us ownership of the name and basis to venture forward cohesively. If we agree to this we may not have the need (or the costs) to obtain advice on the IP issues re the name in Australia.
· I am happy to draft an agenda, incorporating Damien's points for consideration by all and to facilitate on the day
46 I am not persuaded that, at the meeting on 11 October 2016, Mr Ramrakha said words to the effect that "we own that brand in Australia". Mr Ramrakha's version of events does not include that statement, and both Mr van Brunschot and Mr McPherson deny that any such statement was made. Further, if such a statement had been made, it would have been a matter of significance for the respondents. In this connection, I am satisfied that both Mr van Brunschot and Mr McPherson held the belief that Mr Batra controlled the use of the Kaden Boriss name. This is why Mr van Brunschot wanted to obtain legal advice. The respondents wanted to know whether they would be able to continue to use the Kaden Boriss name if, contrary to their then disposition, they decided to collaborate with the "Sydney office" to form a new network. Their interest was not in a name change - which was the focus of Mr Ramrakha's and Mr Chander's presentation - but in maintaining their use of the Kaden Boriss "brand" in that event.
47 It does not seem that any legal advice on this topic was obtained. I infer that the need to obtain that advice was overtaken by events, to which I now turn.
48 On 17 October 2016, Mr Chander circulated an agenda for the meeting (an updated agenda circulated on 18 October 2016). The agenda identified the subject of the meeting as "Project WIN Workshop" - "WIN" meaning "What's in a Name?" This is consistent with Mr Ramrakha's and Mr Chander's proposition at the meeting on 11 October 2016 that, ideally, the new network would have a different structure and operate under a new name.
49 The respondents considered their position with their then partners. On 18 October 2016, Mr van Brunschot sent the following email to Mr Lal, Mr Ramrakha and Mr Chander (although the salutation was only to Mr Lal and Mr Chander):
Hi Sunil and Jay,
Thanks for circulating the proposed agenda Jay.
We had a Partners meeting yesterday to discuss recent developments, and form some consensus on future direction for our office.
We thought it important to convey the decision we have reached, prior to our proposed trip to Sydney.
The decision of the Brisbane partnership is to remain in the network. We have all invested much in the brand, and from the perspective of the Brisbane office, we are not prepared to take on the risk and cost of re-branding, at a time when we are gaining significant momentum in the marketplace. This is a decision we have not taken lightly, but we wanted to inform you of it as soon as possible.
We acknowledge that the working relationship between our respective offices has at times been strained. If your decision is to remain in the network, we are very committed to doing what we can on our part to improve the relationship between the Australian offices and we consider appropriate overall governance within an otherwise autonomous network needs to be discussed. Jamie and I will participate in Monday's meeting if the plan is to genuinely work together within the network, and we appreciate much work is required to genuinely improve where we are at.
We have more feedback in terms of the draft agenda, but thought at the outset we would convey our position.
Please let us know whether in your view the meeting should proceed, based on the decision we have made.
The purpose of this email is to communicate our position prior to the meeting to hopefully best ensure that any meeting can take place on a proper basis, and to therefore avoid any misunderstanding.
Look forward to hearing from you.
50 Mr Lal gave evidence that he was surprised to hear of the Brisbane firm's intention to remain in the network, and that they were not prepared to take the risk and cost of re-branding at a time when they were gaining momentum in the marketplace.
51 At Mr Chander's urgings, the meeting planned for 24 October 2016 nevertheless took place in Sydney at Kaden Boriss Sydney's office, as arranged. The events at the meeting are in dispute.
52 Mr Lal's evidence is that the meeting ran for about 20 minutes. It was chaired by Mr Chander. Mr Lal said that the following exchange took place:
Mr Chander: Thank you all for being here today. We have quite an extensive agenda to get through but we hope that it will give us a path to act on going forward.
Mr van Brunschot: Look, let's be frank. I don't want to waste time. You seem to want our support to isolate Hemant Batra and split the Kaden Boriss network. We are not prepared to do that. We intend to stay in the network.
Me: We are very nervous about control of our website being handed over to a Bangalore company and have concerns about Batra's proposals in relation to the management of the network. We think it would be best to split from the network in order to maintain our independence and to retain value in the brand.
Mr McPherson: We are not interested in being a part of any fight between you and Batra.
Mr van Brunschot: We intend to remain part of the Kaden Boriss network. We do not have any issue with Batra's proposals or with the website being managed out of India.
Me: Kaden Boriss is our name so, if that is the case, you can't continue to use it.
53 Mr Ramrakha gave very similar evidence. He said that the meeting did not last longer than about 15 minutes (his affidavit originally said 30 minutes). He deposed to this exchange:
Mr Lal: We are very nervous about control of the website being handed over to a Bangalore company by Batra and have concerns about Batra's proposals in relation to the management of the network. We think it would be best to split from the network in order to maintain our independence and to retain value in the brand.
Mr McPherson: We are not interested in being a part of any fight between you and Batra.
Mr van Brunschot: We intend to remain part of the Kaden Boriss network. We do not have any issue with Batra's proposals or with the website being managed out of India.
Mr Lal: If you remain in the network, you will not be able to continue to use the name "Kaden Boriss". It's ours.
Mr McPherson: I think that concludes this meeting.
54 Mr Chander also gave similar evidence. According to him, the meeting, which lasted for less than an hour, included the following exchange:
Mr van Brunschot: We have decided that we do not want to rebrand. We are going to remain with the Kaden Boriss network.
Mr Lal: You will have to rebrand then because we intend to continue using that name and we have plans to use it. We have spent significant time and money building the goodwill in the brand for many years. You can stay within the Kaden Boriss network but you will need to change your name because that name is ours.
Mr van Brunschot: We don't want to be part of your plans. We are going out on our own and we are going to remain with the network. I don't think there is any point progressing the discussion items on the agenda.
55 Although in matters of detail this evidence differs, it is consistent with Mr Lal's and Mr Ramrakha's evidence that Mr Lal told the respondents that, if they remained in the Kaden Boriss network, they could not continue to use the Kaden Boriss name because the applicants "owned" it. The respondents' evidence is markedly different.
56 Mr van Brunschot's evidence is that he started the meeting by making opening remarks along the following lines:
• I confirmed that there had been difficulties in the relationship between our offices;
• I advised our Sydney colleagues that we (the Brisbane office) had enjoyed growth due to our hard work in the Queensland market as opposed to our membership of the Kaden Boriss network;
• I advised that we were keen on expanding our fee base outside of insurance which was a traditional area of strength in the Brisbane office;
• I advised that we had had discussions with the Brisbane partnership and we were committed to staying within the network;
• I said that the 'premise' of the network, to simply pay fees for work between the offices, was flawed. I said that a more concerted and fruitful approach would be to share client contacts, work together generally to promote and build the brand, as opposed to the emphasis on a one-off referral fee which was not producing the dividends that had been hoped for;
• I advised in terms of the Code of Conduct that we were somewhat disappointed that we did not get a 'seat at the table' in terms of the make up of the proposed Board, but we were otherwise happy with the Code of Conduct and we would adhere to it; and
• I also advised that the digital marketing firm Webenza which was based in Bangalore did not present any significant problems for the Brisbane office - I understood that Indian IT services were well recognised, and I said it was good that there was a concerted digital marketing campaign which should benefit all offices.
57 Mr van Brunschot recounted other aspects of the conversations at the meeting. He said that he had no recollection of Mr Lal saying that Kaden Boriss Brisbane would have to rebrand because "the Sydney office owned the name, intended to use the name or had plans to use it". He said that "Mr Lal instead stated to us that they intended to rebrand altogether" and that there "was no specific suggestion by Mr Lal that the Sydney office intended to use the name Kaden Boriss for any of their service offerings". Mr van Brunschot continued:
Neither Mr Lal nor any of his Sydney colleagues stated that we could not continue to use the Kaden Boriss brand. If this had been communicated to me by Mr Lal or anyone else it would have been something that I would definitely have remembered.
58 Mr McPherson's evidence was substantially the same as Mr van Brunschot's evidence - indeed, strikingly so in relation to the opening remarks which Mr van Brunschot said he had made. However, in this regard, Mr McPherson's evidence is consistent with notes he took at the meeting. The notes indicate that Mr van Brunschot took on the "speaking" role for the respondents, while Mr McPherson was "note taker". These notes are also consistent with Mr van Brunschot taking control of the meeting at the outset, by making the opening remarks he said he had made.
59 Mr McPherson "categorically" rejected Mr Lal's, Mr Ramrakha's and Mr Chander's versions of the conversation. He said that Mr Lal did not say that "the Brisbane office" could not continue to use the Kaden Boriss name. He also expressed the view that any intention by the applicants to use the name would have required some reconciliation between them and Mr Batra, whom Mr McPherson considered to be "the ultimate owner of the brand".
60 The applicants' evidence is that the meeting on 24 October 2016 commenced at around 10.00 am (Mr Ramrakha; corrected in oral evidence from 11.00 am as stated in his affidavit), 11.00 am (Mr Lal) or after 11.00 am (Mr Chander). At all events, the evidence is clear that the meeting was relatively short. After the meeting had concluded, the respondents, and the applicants and Mr Chander, had lunch at Kaden Boriss Sydney's office. Others may have been present. At 12.55 pm (possibly after the respondents had left the office), Mr McPherson sent the following email to Mr Batra:
Hemant we have concluded the meeting with the Sydney office.
It was quite clear that they were looking to us to join with them in an attempt to create a fracture in the network.
We told them we didn't want to be part of it, and that the decision of whether they leave or not is one for them and not for us to be involved with. We also made it clear that if their decision was to stay, we would do what we could to ensure that we moved together smoothly. Likewise, if their decision was to leave, then we would properly decide on an exit strategy with them.
We would not otherwise engage with them about their issues.
The meeting was adjourned so they could properly decide which way they wished to move.
I suspect you will hear from them prior to them communicating anything to us.
I made no mention of any of our discussions or gave any inkling that we have spoken about matters.
61 It is clear from this contemporaneous record that, prior to the meeting, the respondents had been in discussions with Mr Batra. Notably, the email makes no mention that Mr Lal had informed the respondents at the meeting that they could not continue to use the Kaden Boriss name if they remained in the Kaden Boriss network. Similarly, Mr McPherson's notes make no mention of any such statement having been made.
62 On 4 November 2016, Mr McPherson sent Mr Lal an email. He noted that he had not heard from Mr Lal since the meeting on 24 October 2016 in relation to "which way you have decided to proceed". By this, I understand Mr McPherson to have been raising the issue of whether Kaden Boriss Sydney would remain in the network, despite everything that had happened. Mr McPherson asked Mr Lal to let him know his (Mr Lal's) intentions as soon as possible. Mr Lal did not respond to this email.
63 On 22 November 2016, Mr McPherson sent a further email to Mr Lal, noting his (Mr Lal's) failure to respond to communications, and suggesting that they meet when Mr McPherson was to be in Sydney on 25 November 2016. In the email, Mr McPherson said:
I am acutely aware of your position in the network, but your silence has meant that we have had no choice but to make decisions without your input.
I would prefer that if your desire was to remain within the network that you would engage with us so that these decisions can be made jointly. We continue to remain committed to work in a corroborative way.
If you don't want to catch up that's ok, but please don't be upset when further decisions are made without seeking your input.
I look forward to hearing from you.
64 Mr Lal responded on 24 November 2016:
Thank you for your email. Apart from an email from Hemant about Webenza, I do not believe I have received any other emails informing me of the "number of decisions being made" in my absence. Please feel free to at least share by email, even if we are unable to connect by phone as it is a busy time of the year.
There is a lot that you have no idea about surrounding the origins of KB. I do not believe, with respect, there is anything you will achieve by meeting me at this stage. There are matters to sort about the brand and IP and this is between Sydney and Gurgaon office strictly. This will be managed in due course, that I am sure about.
I am heartened to hear you remain committed to work in a corroborative way. We have enjoyed promoting our presence in Brisbane and referring a number of clients/network to your office.
Enjoy Sydney tomorrow, we shall catch some other time.
65 On 25 November 2016, Mr Batra sent a letter to Mr Lal in which he accepted Mr Lal's "notice to exit" conveyed in the WhatsApp messages on 6 October 2016. After referring to those communications, the letter continued:
Subsequently, you completely broke down communication channels with the undersigned being the founder & Chairman of the Kaden Boriss and its Law Firms' network. It has also come to the knowledge of the undersigned with overwhelming evidence that you have expressed to other network office(s) about your departure from Kaden Boriss - attempted change of name - and at the same time advising them to join you in that endeavour, which the undersigned terms as fracturing Kaden Boriss IP. This has caused severe breach in trust and confidence thereby affecting the Kaden Boriss' brand reputation and goodwill.
66 The letter went on to permit Mr Lal's firm three months within which to discontinue using the Kaden Boriss name, or any similar name, including the initials "KB". However, by that time Kaden Boriss Sydney had changed its name to Barker Henley.
67 On 14 December 2016, Mr McPherson sent an email to Mr Lal and Mr Ramrakha attaching a letter from Kaden Boriss Brisbane seeking transfer of the Kaden Boriss business names which the applicants had registered. By this time, the respondents knew that the applicants' firm had changed its name to Barker Henley. Mr Ramrakha responded, stating (amongst other things) that "there are wider issues, moving forward, that need to be addressed quite apart from intellectual property and ownership of business names".
68 On 23 December 2016, Mr McPherson sent a further email to the applicants. Mr McPherson said that, despite numerous attempts to resolve "the issue relating to the Kaden Boriss branding", a proper response had not been received from the applicants, and that the respondents were filing a Claim and Statement of Claim in the Supreme Court of Queensland alleging that the applicants had contravened ss 18 and 29(1)(h) of the Australian Consumer Law and engaged in passing off. As events transpired, the Claim and Statement of Claim were only filed on 9 January 2017 (the Queensland Supreme Court proceeding). The filed Statement of Claim also included an allegation that the applicants had breached fiduciary obligations owed to the respondents.
69 In the meantime, the applicants responded in kind. On 3 January 2017, they filed a Statement of Claim in the Equity Division of the Supreme Court of New South Wales, alleging that the respondents had contravened ss 18 and 29(1)(h) of the Australian Consumer Law and engaged in passing off (the New South Wales Supreme Court proceeding). Paragraphs 9 and 10 of the Statement of Claim pleaded:
9 The Plaintiffs permitted the Defendants to use the Kaden Boriss brand when the Defendant Firm joined the Network.
10 As the Plaintiffs decided to pursue a multi-disciplinary practice in January 2017, the Plaintiffs in order to protect its goodwill in the Kaden Boriss brand and get-up, no longer permit the Defendants to use the Kaden Boriss brand and get-up.
70 The applicants verified the truthfulness of the pleaded allegations. The allegations pleaded in paragraphs 9 and 10 are inconsistent with Mr Lal having informed the respondents that they could not continue to use the Kaden Boriss name if they remained in the Kaden Boriss network.
71 On 6 January 2017, the applicants changed solicitors. They instructed their present solicitors to act for them in the New South Wales Supreme Court proceeding. In a letter addressed to the respondents, dated 9 January 2017, the applicants' solicitors stated that, in addition to the matters pleaded in the Statement of Claim filed on 3 January 2017, the respondents had infringed the copyright in the Kaden Boriss Logos. The letter stated in part:
While our clients provided you with a limited license to use the Kaden Boriss logos from October 2013 to October 2016, it is clear based on what has transpired since October 2016 that you no longer have our clients' consent or permission to use the copyright works, being the logos at Figure 1 and 2. If there has been any doubt, please take this letter as formal written notice that our clients no longer licenses or authorise use of the Kaden Boriss logos.
(emphasis added)
72 On 11 January 2017, the respondents invited the applicants to "withdraw" the Statement of Claim filed in the New South Wales Supreme Court proceeding in light of the commencement of the Queensland Supreme Court proceeding and the notice the respondents had given on 23 December 2016.
73 The New South Wales Supreme Court proceeding was discontinued on about 22 February 2017. On 8 February 2017, consent orders were signed discontinuing the Queensland Supreme Court proceeding.
74 On 11 January 2017, Mr Batra sent an email to Mr Lal, which was copied to the respondents, Mr Ramrakha and Preeti Batra. In this email, Mr Batra summarised his understanding of his relationship with Mr Lal and the establishment of the Kaden Boriss network. The email is long. It is nevertheless appropriate that I set out the following extract. The applicants place considerable reliance on it:
In 2010 - 2011, we started talking of joining hands in profession under brand 'Kaden Boriss' with Chee also being part of the discussion (Kuwait Firm was never inclined). We 3 individually decided to launch a Global Network in equal shares, with understanding that India will be exclusively mine and Singapore and Australia Chee's and yours (individually), respectively. Global was to belong to 3 of us. A Singapore Co. was formed, accordingly and then terminated as Chee took an exit. Yes, then only we two were left and it was an understanding that India territory will be exclusively mine and Australia your's (with no interference from each other). Other than these two countries, Globally we were required to take each other's consent as we both co-owned the 'Global' outfit. You changed the name of your firm in September 2011 to Kaden Boriss.
Unquestionably, Australia territory was yours re: Kaden Boriss.
You and me started to contributed a lot in time, money and resources for its expansion. No denying.
Regarding (Copyright) Pulse payments or for that matter website development and stationery etc. expenditures were co-shared (including expenses for forming Singapore Co.), it is also a matter of record that we both paid equally. Pulse was actually introduced by Chee. Though termination of Singapore Co. expenses were exclusively paid by Chee and never claimed. Thereafter, everything did proceed on joint basis between two of us. If Pulse claims that I am stranger to them then I am sure that they need to be in the witness box with each document of theirs going through the forensic test.
As Australia was completely under your domain, control and prerogative, there is no denying of the fact that it was you who identified/authorized Brisbane on the above premise.
Misunderstanding amongst partners, friends and brothers are natural but these should not build walls and that is why I humbly request you to resolve the matter in the interest of all concerned.
I have resolved to assume eventually 'founder - advisory role' in the Group in an independent capacity with Preeti as the Managing Partner of India - Kaden Boriss for the time being. I have decided to take an exit from the management and even divest my rights (whatever, I have). In the legal premise, the basic legal principle is 'nemo dat quod non habet' literally meaning 'no one gives what he doesn't have'. I will pass on only what I have and if I pass anything more, it has no meaning.
In all honesty, I am a lawful owner by all means of India territory and Globally we are definitely entangled together. Australia territory was yours, which is now sadly subject matter of litigation.
75 An important plank in the applicant's case is that, at the meeting on 24 October 2016, Mr Lal made a statement to the effect that, if the respondents remained in the Kaden Boriss network, they could not continue to use the Kaden Boriss name. I am not prepared to make that finding, notwithstanding the evidence given by Mr Lal, Mr Ramrakha and Mr Chander on this topic. I am not satisfied that a statement to that effect was made by Mr Lal or anyone else on behalf of the applicants. In fact, it is highly unlikely that a statement to that effect was made.
76 First, at that time, the use of the Kaden Boriss name was very important to the respondents. I refer to the findings I have made at [46] above on that score. Had Mr Lal stated that the respondents could not continue to use the Kaden Boriss name if they remained in the Kaden Boriss network - and, I would add, not join the "Sydney office" in a new network, presumably under a different name - then, in all likelihood, this would have provoked a very strong reaction indeed from the respondents. In all likelihood, they would have made immediate and strong protestations at the meeting about any asserted impediment to them continuing to use the name. I am satisfied that, at the very least, they would have regarded it as incongruous that, just because the "Sydney office" had elected to leave the network, and the "Brisbane office" had not, the "Brisbane office" could no longer use the Kaden Boriss name - and would have said so. Notably, there is no evidence of any protest or other similar reaction by the respondents at the meeting. Quite the contrary; the evidence is that the respondents then joined the applicants and their partners for lunch at the Kaden Boriss Sydney office, presumably on some tolerably amicable basis. This strongly suggests that no such statement was made by Mr Lal, and that the meeting on 24 October 2016 had proceeded just as the respondents say it had.
77 Secondly, I prefer the evidence provided by the contemporaneous records of the meeting, rather than Mr Lal's, Mr Ramrakha's and Mr Chander's respective recollections. Mr McPherson's notes record no such statement by Mr Lal. Had such a statement been made, it is incredible to think that it would not have been recorded by Mr McPherson, given the other matters recorded in the notes. I do not accept that, somehow, Mr McPherson would have missed recording such an important statement, if it had been made. Further, it is incredible to think that Mr McPherson would not also have informed Mr Batra of such a statement in his (Mr McPherson's) email sent relatively shortly after the meeting, especially given Mr van Brunschot's and Mr McPherson's understanding that Mr Batra controlled the use of the Kaden Boriss name.
78 Thirdly, had such a statement been made, it is likely that the respondents would have proceeded to obtain the legal advice they suggested obtaining at the meeting on 11 October 2016 and in Mr van Brunschot's email of 12 October 2016. No such advice was obtained at that time.
79 Fourthly, had such a statement been made, it is likely that it would have been repeated by Mr Lal in subsequent correspondence. It was not. I refer in particular to the email which Mr Lal sent to Mr McPherson on 24 November 2016. It is also likely that it would have been repeated by Mr Lal's other partners, Mr Ramrakha in particular. Once again, it was not. When Mr McPherson sought transfer of the Kaden Boriss business names on 14 December 2016, Mr Ramrakha did not respond by asserting his or Mr Lal's "ownership" of the Kaden Boriss name or by asserting that the respondents could not use it. Rather, he referred, Delphically, to "wider issues" that needed to be addressed "apart from intellectual property and ownership of business names" - effectively avoiding the issue.
80 Fifthly, no allegation is made in the Statement of Claim filed in the New South Wales Supreme Court proceeding to the effect that such a statement was made on 24 October 2016. Further, the verified allegations pleaded in paragraphs 9 and 10 of the Statement of Claim are inconsistent with Mr Lal having informed the respondents on 24 October 2016 that they could not continue to use the Kaden Boriss name if they remained in the Kaden Boriss network. A different allegation is made, namely that the permission which the respondents had to use the Kaden Boriss name was withdrawn in January 2017 (not 24 October 2016) because the applicants decided, at that time, to pursue a multi-disciplinary practice (not because Mr Lal informed the respondents that they could not use the name if they remained in the Kaden Boriss network).
81 The respondents ceased using the Kaden Boriss Logos and the Kaden Boriss name on 30 September 2017. Their firm now practises under the name DWF (Australia).