Opponent: Sam Hallahan of Counsel instructed by Actuate IP

2025 ATMO 86

Trade Marks Act 1995 (Cth) - application under section 92 - sections 92(4)(a) and 92(4)(b) - use of trade mark not established - no obstacle to use - discretion to maintain registration not exercised - trade mark to be removed

1. On 3 July 2023 Janne Clara Lindrum ('Removal Applicant') filed an application under ss 92(4)(a) and 92(4)(b) of the Trade Marks Act 1995 (Cth)[1] ('Removal Application') for the complete removal from the Register of Trade Marks ('Register') of the following registered trade mark in the name of T&P Lindrum Pty Ltd ('Removal Opponent'):

Specification: Class 42: Procuring lodgings and rooms in hotels, guest houses, and other like accommodation establishments; hotel, guest house and accommodation services included in this class ('Registered Services')

1. On 8 September 2023 the Removal Opponent filed a Notice of Intention to Oppose the Removal Application, followed by its Statement of Grounds and Particulars on 4 October 2023. On 9 November 2023 the Removal Applicant filed a Notice of Intention to Defend the Removal Application.
2. The Removal Opponent filed the following declaration as evidence in support:
   • Declaration of Ashley Cowland, Development Manager of the Time & Place property development business, made on 13 February 2024, with Annexures AC-1 to AC-17 ('Cowland').
3. The Removal Applicant filed the following declaration as evidence in answer:
   • Declaration of Janne Clara Lindrum, made on 15 April 2024 ('Lindrum').
4. The Removal Opponent filed the following declaration as evidence in reply:
   • Declaration of Ashley Cowland, made on 18 July 2024.
5. Once the time for filing evidence had ended the parties were given an opportunity to request a hearing. The Removal Opponent requested an oral hearing. The Removal Applicant requested a hearing by way of written submissions. Both parties filed written submissions prior to the hearing. The matter was allocated to me to determine as a delegate of the Registrar of Trade Marks. I heard the matter on 23 April 2025. Sam Hallahan of Counsel instructed by Cameron Lang of Actuate IP appeared via videoconference on behalf of the Removal Opponent. Olivia Biviano, an in-house paralegal at the Removal Opponent, also attended as an observer.

1. On 15 October 2024 the Removal Applicant made a request to file further evidence in answer out of time under reg 21.19. This out of time evidence included a page that was inadvertently omitted from the Lindrum declaration and various other documents and statements.
2. On 9 December 2024, a delegate of the Registrar considered the Removal Applicant's request under reg 21.19. The delegate determined that the missing page from Lindrum would be allowed into evidence, however the balance of the out of time evidence would not be allowed. Both parties were advised accordingly.
3. At the hearing the Removal Opponent submitted that the purported missing page from Lindrum belongs to a different document, and that the authenticity of the missing page cannot be relied upon, as such it should be given no weight.
4. In my view, nothing turns on the contents of the missing page, and as Lindrum is not supported by documentary evidence, I intend to afford the little weight to its content.

1. Part 9 of the Act deals with removal of trade marks from the Register due to non-use.
2. The Removal Opponent nominated grounds under ss 92(4)(a) and 92(4)(b) which provides:

(4) An application under subsection (1) or (3) (non‑use application) may be made on either or both of the following grounds, and on no other grounds:

(a) that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:

(ii) to authorise the use of the trade mark in Australia; or

(iii) to assign the trade mark to a body corporate for use by the body corporate in Australia;

in relation to the goods and/or services to which the non‑use application relates and that the registered owner:

(v) has not used the trade mark in good faith in Australia;

in relation to those goods and/or services at any time before the period of one month ending on the day on which the non‑use application is filed;

(b) that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non‑use application is filed, and, at no time during that period, the person who was then the registered owner:

(ii) used the trade mark in good faith in Australia;

in relation to the goods and/or services to which the application relates.

1. Given the way that s 92(4)(a) is expressed, this provision essentially merges with s 92(4)(b) once a trade mark has been registered for 5 years and I confirm that 5 years since filing the application have in fact passed.[2] Accordingly, it is only necessary to consider the s 92(4)(b) ground.
2. Under s 92(4)(b) the relevant period during which the Removal Opponent must establish use of the Trade Mark is the three year period ending on 3 June 2023 ('Relevant Period'). It is relevant to note that TMG Flinders Pty Ltd and AMCO Flinders Pty Ltd (together 'Previous Owners') were the registered owners of the Trade Mark from 3 June 2020 to 1 June 2023 when the Trade Mark was assigned to the Removal Opponent.[3]
3. Pursuant to s 100(1), the Removal Opponent bears the onus of rebutting an allegation made under s 92(4)(b). The Removal Opponent must show, on the balance of probabilities,[4] that it has used the Trade Mark, or a trade mark with additions or alterations not affecting the identity of the Trade Mark in relation to the Registered Services, in good faith in Australia within the Relevant Period.
4. In Woolly Bull Enterprises Pty Ltd v Reynolds, Drummond J observed that the expression 'use in good faith' has a well understood meaning in terms of s 92, namely it is 'real, as opposed to token, use in a commercial sense'. [5] Provided the use is in good faith, 'a single bona fide use of the mark' may be enough to rebut an allegation of non-use.[6] Little weight is to be given to assertions of use which are not supported by documentary evidence.[7] In Nodoz Trade Mark, Wilberforce J said that if a registered owner relies on one single act of use of the trade mark, then that single act ought to be established by 'if not conclusive proof, at any rate overwhelmingly convincing proof'.[8]
5. The principles regarding use as a trade mark were recently summarised in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd, in which the High Court noted the following:

Use of a trade mark in relation to goods means use of a trade mark upon, or in physical or other relation to, those goods, and so can include use of the mark on product packaging or marketing such as on a website. There is a distinction, although not always easy to apply, between the use of a sign in relation to goods and the use of a sign as a trade mark. A trade mark is a sign used, or intended to be used, to distinguish goods dealt with by one trader from goods dealt with by other traders; that is, as a badge of origin to indicate a connection between the goods and the user of the mark.

Whether a sign has been "use[d] as a trade mark" is assessed objectively without reference to the subjective trading intentions of the user. As the meaning of a sign, such as a word, varies with the context in which the sign is used, the objective purpose and nature of use are assessed by reference to context. That context includes the relevant trade, the way in which the words have been displayed, and how the words would present themselves to persons who read them and form a view about what they connote. A well known example where the use was not "as a trade mark" was in Irving's Yeast-Vite Ltd v Horsenail, where the phrase "Yeast tablets a substitute for 'Yeast-Vite'" was held to be merely descriptive and not a use of "Yeast-Vite" as a trade mark. Therefore, it did not contravene the YEAST-VITE mark.

The existence of a descriptive element or purpose does not necessarily preclude the sign being used as a trade mark. Where there are several purposes for the use of the sign, if one purpose is to distinguish the goods provided in the course of trade that will be sufficient to establish use as a trade mark. Where there are several words or signs used in combination, the existence of a clear dominant "brand" is relevant to the assessment of what would be taken to be the effect of the balance of the label, but does not mean another part of the label cannot also act to distinguish the goods.[9]

1. In accordance with s 101, if the ground for removal is established, I may decide to remove the Trade Mark from the Register in respect of any or all of the services identified in the Removal Application, or if satisfied it is reasonable to do so, decide not to remove the Trade Mark from the Register.

1. Cowland states that he is the Development Manager for the 'Time & Place' ('T&P') property development business, which is based in Melbourne and Sydney. T&P provides end to end property development services for small and large scale residential, mixed-use, commercial, industrial and retail projects. The T&P business is carried out via a group of over 100 companies. Cowland states that the Removal Opponent, is a special purpose company incorporated on 6 April 2022[10] for the purpose of the 'Lindrum Development' project.
2. Cowland attests that on 23 May 2023, T&P completed the purchase of a property at 26 Flinders Street, Melbourne ('Property') from the Previous Owners. The sale of the Property included the Trade Mark which was assigned to the Removal Opponent on 1 June 2023.
3. Cowland declares that the Property was home to the iconic 'Hotel Lindrum' from around 1999 until the end of November 2022 ('Hotel Lindrum Business'). During this time, including during the Relevant Period, the Previous Owners used and/or authorised the use of the Trade Mark for the Registered Services, in relation to the operation of the Hotel Lindrum Business.
4. Cowland provides a history of the Property and the Hotel Lindrum Business stating that the Property was designed by Ward & Carleton the early 1900s for Griffiths Brothers Tea Merchants. In the 1920s, it was used as the headquarters for the Herald empire (News Limited) and later became a billiards centre known as 'Lindrum's'.
5. In around 1999, the Property was refurbished and converted into a boutique 59-room luxury hotel with a ground floor restaurant and bar, which was called 'Hotel Lindrum'. The Hotel Lindrum Business opened in 1999 and began providing premium hotel and accommodation services under the Trade Mark, the trade mark HOTEL LINDRUM, and the logo ('Logo trade mark') (collectively, 'Lindrum Trade Marks').
6. Cowland declares that the day-to-day operation of the Hotel Lindrum Business was carried out by Mirvac Hotels Pty Ltd (Mirvac) and then by Accor Australia & New Zealand Hospitality Pty Ltd (Accor) under a Hotel Management Agreement ('Agreement') with the Previous Owners. Cowland states that Accor acquired Mirvac's hotel management business (including the Agreement to operate the Hotel Lindrum Business) in around 2011. The Agreement included a licence for Mirvac to use the Trade Mark for the Hotel Lindrum Business. Confidential Annexure AC-2 to Cowland comprises copies of the Agreement between the Previous Owners and Mirvac dated 12 August 2008, and an Option Notice from Accor to the Previous Owners dated 28 May 2018 extending the term of the Agreement to 13 October 2023.
7. Cowland attests that in around August 2022, Accor began winding down the operations of the Hotel Lindrum Business. The Hotel Lindrum Business subsequently ceased trading entirely at the end of November 2022.
8. Cowland notes that on around 22 June 2017, the Previous Owners were granted town planning approval from the Melbourne City Council for a 30-storey mixed-use hotel and residential development on the Property. Then on around 16 November 2023, T&P was granted an amendment to the original planning permit allowing it to redevelop the Property and construct a multi-storey building, comprising 27-storeys of premium office space and a ground floor hospitality space. The 'Hotel Lindrum' name and signage will be retained as part of the new development.

1. Annexure AC-5 to Cowland comprises photographs of the exterior of the Property declared to have been taken between March and October 2022. The photographs show use of the Logo trade mark on signage.
2. Annexure AC-6 to Cowland comprises a screenshot from Google Street View of the Property dated May 2022. The screenshot shows the exterior signage of the Property, showing use of the Logo trade mark.
3. Annexure AC-7 to Cowland comprises two photographs of the interior signage at the Property taken in around August 2022. The first photograph shows the Property's entry signage which features the Logo trade mark. The second photograph shows use of the Logo trade mark on evacuation signage.
4. Annexure AC-8 to Cowland comprises various screenshots from the Internet archiving service Wayback Machine of the website www.hotellindrum.com.au ('HL Website') including captures dated 8 August 2020, 22 February 2021 and 25 October 2022. The screenshots show use of HOTEL LINDRUM and the Logo trade marks in relation to hotel accommodation services. The screenshots also display endorsements from the ACCOR group.
5. Annexure AC-9 to Cowland comprises screenshots from travel industry websites including www.agoda.com, www.skyscanner.com.au and www.victravel.com.au dated 12 February 2024. Cowland states that prior to the Hotel Lindrum Business ceasing trading in October 2022, guests were able to book accommodation through these websites. The screenshots show promotion of the HOTEL LINDRUM and the Logo trade marks in relation to hotel accommodation services.
6. Annexure AC-12 to Cowland comprises screenshots of guest reviews of Hotel Lindrum posted to www.priceline.com which are dated between September 2022 and January 2023. Annexure AC-13 to Cowland comprises screenshots of guest reviews of Hotel Lindrum posted to Google which were between 2020 and 2023.
7. In my assessment of the evidence, I am satisfied there has been use of HOTEL LINDRUM and the Logo trade mark in relation to hotel accommodation services by Accor during the Relevant Period. The screenshots from the HL Website provide clear examples of hotel accommodation services being offered under HOTEL LINDRUM and the Logo trade marks during the Relevant Period and the guest reviews demonstrate that accommodation services were in fact provided. The screenshots from the HL Website also show that the Lindrum Hotel Business is part of the Accor network. The photographs of signage are undated, however they do show the same signage that appears in the HL Website. The screenshots from the industry websites were downloaded after the Relevant Period and the closure of the Lindrum Hotel Business, nonetheless they indicate that hotel accommodation services were offered to the public at some point prior to its closure.
8. The evidence does not show use of the Trade Mark as registered during the Relevant Period. Therefore, under s 100(3)(a), I must consider whether use of HOTEL LINDRUM and/or the Logo trade mark are use of the Trade Mark with additions or alterations not substantially affecting its identity. The test is the same as the test in respect of substantial identity and this requires that the trade marks are considered side by side while having regard to the essential features of the trade marks.[11]
9. More recently, the Full Federal Court considered the test for substantial identity in Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd[12] and Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd[13] finding that the test requires that the trade marks are considered side by side while having regard to the essential features or dominant cognitive cues of the trade marks. Where a total impression of resemblance emerges from the comparison, the trade marks will be considered substantially identical. For the purposes of comparison, I have reproduced the respective trade marks below:

1. On a side by side comparison I find that the Trade Mark and the HOTEL LINDRUM trade mark are substantially identical. Both trade marks share the word LINDRUM as an essential feature. The Trade Mark is for the word LINDRUM solus. In comparison, HOTEL LINDRUM consists of the word HOTEL and LINDRUM. I consider that the word HOTEL is merely a descriptive element in relation to the Registered Services and I am not persuaded that its use substantially affects the identity of LINDRUM. As such I find that the total impression emerging from a side by side comparison is one of similarity.

1. On a side by side comparison both trade marks share the word LINDRUM. The Trade Mark is for the word LINDRUM solus. In comparison, the Logo trade mark consists of the word HOTEL atop the stylised word LINDRUM. The word HOTEL is merely a descriptive element in relation to the Registered Services and, in my view, the stylization of LINDRUM is not an embellishment that alters the total impression of similarity.[14] As such, the total impression emerging from a side by side comparison is one of similarity and I find the Trade Mark and the Logo trade mark are substantially identical.
2. Therefore, I find that use of the HOTEL LINDRUM and/or the Logo trade mark are uses of the Trade Mark for the purposes of s 92(4)(b).

1. With regard to the use of the Trade Mark by Accor, Note 1 to s 100(3) states that if the registered owner of the trade mark has authorised another person to use it, any authorised use of the trade mark by that other person is taken to be a use of the trade mark by the registered owner.
2. Section 8 defines an 'authorised user', and 'authorised use' as follows:

8 Definitions of authorised user and authorised use

(1) A person is an authorised user of a trade mark if the person uses the trade mark in relation to goods or services under the control of the owner of the trade mark.

(2) The use of a trade mark by an authorised user of the trade mark is an authorised use of the trade mark to the extent only that the user uses the trade mark under the control of the owner of the trade mark.

(3) If the owner of a trade mark exercises quality control over goods or services:

(a) dealt with or provided in the course of trade by another person; and

the other person is taken, for the purposes of subsection (1), to use the trade mark in relation to the goods or services under the control of the owner.

(a) a person deals with or provides, in the course of trade, goods or services in relation to which a trade mark is used; and

(b) the owner of the trade mark exercises financial control over the other person's relevant trading activities;

the other person is taken, for the purposes of subsection (1), to use the trade mark in relation to the goods or services under the control of the owner.

(5) Subsections (3) and (4) do not limit the meaning of the expression under the control of in subsections (1) and (2).

1. The text of s 8 makes clear that 'control' forms a pivotal aspect of establishing authorised use. As such, use of the Trade Mark by an authorised user will only be taken to be use by the Removal Opponent if the latter exercises control over the use of the Trade Mark during the Relevant Period so as to maintain a connection in the course of trade between the Registered Services and the Removal Opponent. That can be achieved if, for example, either quality control or financial control is exercised.
2. The Removal Opponent submits that the day-to-day operation of the Hotel Lindrum Business was carried out by Accor as an authorised user, during the period 3 June 2020 until the end of November 2022. The Removal Opponent submits that the Previous Owners expressly licensed Accor to use the Trade Mark, pursuant to the Agreement.[15] The Removal Opponent argues that the mere existence of the Agreement provides a strong mechanism for the Previous Owners to exercise strict quality control over the services provided by Accor under the Trade Mark.
3. In Lodestar Anstalt v Campari America LLC (where two unrelated companies had negotiated the terms of a license agreement to advance their separate commercial interests), Katzmann J while commenting on the construction of s 8 stated that a bare licence agreement, is not enough without evidence of exercise of actual control.[16] Determination of actual control is a question of fact.[17]
4. In this case the Agreement contains several clauses which are suggestive of, or at least allow, potential control over the hotel operations by the Previous Owners. Under the Agreement, the day-to-day operations of the hotel were performed by Accor and the Previous Owners had rights through various mechanisms of control such as annual plans, financial accounts and consultative committee meetings. However, beyond the text of the Agreement there is no evidence before me of these mechanisms having ever been exercised.
5. In the circumstances, the use by Accor is of no assistance to the Removal Opponent as the right to control is not sufficient, instead s 8 contemplates that actual control must be exercised. The Removal Opponent has failed to provide any evidence that the Previous Owners exercised any control over Accor's use of the Trade Mark in relation to the Registered Services, such as monitoring or compliance with the relevant clauses of the Agreement. The Removal Opponent has not established that there has been authorised use of the Trade Mark. Accordingly, I am not satisfied that the Trade Mark has been used in good faith in relation to the Registered Services during the Relevant Period.

1. The Removal Opponent does not formally submit that there were any circumstances that amount to an obstacle to the use of the Trade Mark for the Registered Services during the Relevant Period, pursuant to s 100(3)(c) and, in the interests of completeness I have been unable to identify any such obstacles.
2. As there were no obstacles to use of the Trade Mark, it is therefore necessary to consider whether I should exercise the discretion to allow the Trade Mark to remain on the Register for any of the Registered Services.

1. Section 101(3) provides:

If satisfied that it is reasonable to do so, the Registrar or the court may decide that the trade mark should not be removed from the Register even if the grounds on which the application was made have been established.

1. The Removal Opponent bears the onus of satisfying the Registrar that the discretion under s 101(3) ought to be exercised in its favour.[18]
2. In this matter, the question is whether it is reasonable not to remove the Trade Mark in respect of the Registered Services even though the Removal Opponent did not establish that it had used the Trade Mark in relation to those services.[19]
3. In E & J Gallo Winery v Lion Nathan Australia Pty Ltd,[20] Flick J stated that the following factors set out by Falconer J in Hermes Trade Mark[21] were of assistance in considering the exercise of the discretion:
   • there had been no abandonment of the trade mark;
   • the registered proprietors of the trade mark still had a residual reputation in the mark;
   • there had been sales by the registered proprietors of goods for which removal was sought since the relevant period ended;
   • the applicants for removal had entered the market without having taken steps to ascertain from the Register whether anyone had a right to exclude their use of the mark; and
   • the registered proprietors were not aware of the applicant's sale under the mark.

1. The public interest and the interests of the parties are inherent in the above factors. In this regard Austin, Nichols & Co Inc v Lodestar Anstalt provided the following guidance:

The purpose of Part 9 is to provide for the removal of unused trade marks from the Register. In that regard it is plainly designed to protect the integrity of the Register, and in this way, the interests of the consumer. At the same time, however, it seeks to accommodate, where reasonable, the interests of the registered trade mark owners.[22]

1. The Removal Opponent submits that it has demonstrated that the Trade Mark has acquired a strong reputation in relation to the Registered Services, and specifically in relation to the Property. It claims that the Trade Mark was used consistently, extensively and prominently for the Registered Services in relation to the Hotel Lindrum Business from 1999 until November 2022. The Removal Opponent also points out that the roof signage for 'Hotel Lindrum' being the Logo trade mark, remains on the Property and will be retained in the Removal Opponent's new development.
2. The Removal Opponent states that, while it is not currently using the Trade Mark for the Registered Services, it is using the Trade Mark for other services. When the Removal Opponent's new development is completed, it intends to use the Trade Mark for its commercial leasing services and any other services provided as part of the new development. Further, the Removal Opponent submits that it 'has not ruled out' potential future use of the Trade Mark for the Registered Services as part of the new development.
3. In response the Removal Applicant states that there is no requirement, council, heritage or otherwise to retain the roof signage. Furthermore, the Removal Applicant argues that the Removal Opponent has not provided any services or built any reputation in the Trade Mark.
4. In my view, the reputation asserted by the Removal Opponent is not supported by the evidence filed. There is no evidence of, for example, any revenue and/or advertising figures and limited evidence of promotional activities being undertaken by the Previous Owners. While the Trade Mark had been used by Accor in relation to hotel accommodation services during the Relevant Period, the Hotel Lindrum Business ceased trading entirely at the end of November 2022 pending the sale of the Property to the Removal Opponent. The Removal Opponent has not abandoned the Trade Mark and it 'has not ruled out' potential future use of the Trade Mark in relation to the Registered Services, however, its intended use of the Trade Mark is in relation to leasing services and any other services provided as part of the new development which is a multi-storey building, comprising 27-storeys of premium office space and a ground floor hospitality space. As such it is difficult to reconcile the Removal Opponent's statement that it 'has not ruled out' potential use of the Trade Mark in relation to the Registered Services when the town planning approval for the new development does not include an accommodation establishment.
5. Given the current position of the Removal Opponent, I consider that the public interest in the integrity of the Register outweighs the private interest of the Removal Opponent. I am unpersuaded that the removal of the Trade Mark for the Registered Services would result in consumer confusion or practically impact on the interests of the Removal Opponent in any way. I do not find it reasonable to exercise my discretion not to remove the Trade Mark in respect of any of the Registered Services. The ground for removal under s 92(4)(b) has been established.

1. I direct that trade mark registration 750507 be removed from the Register in respect of all the Registered Services, one month from the date of this decision. In the event of an appeal, I direct that the Trade Mark will not be removed for all the Registered Services until the appeal has been discontinued or, in the event of a decision from the Court, that the Trade Mark be subject to that order.

1. Both parties sought an award of costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the Removal Opponent as allowed by Schedule 8 of the Regulations.

[1] Unless otherwise indicated, any references to sections or regulations, below, are references to sections or regulations of the Trade Marks Act 1995 (Cth) ('Act') or the Trade Marks Regulations 1995 (Cth) ('Regulations'), respectively.

[2] Per s 93(2) prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 as applies in the present matter. The updated s 93(2) applies to trade mark applications filed from 24 February 2019 onwards.

[3] The Register confirms that the assignment was recorded on 1 June 2023.

[4] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ), albeit in respect of an action opposing registration rather than removal.

[5] [2001] FCA 261, [16].

[7] Great White Shark Enterprises Inc v Joose Apparel Pty Ltd [1998] ATMO 8 (Delegate Forno).

[8] [1962] RPC 1, 7.

[9] [2023] HCA 8, [23]-[25] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) (citations omitted).

[11] The Shell Company Australia Ltd v Esso Standard Oil (Australia) Limited [1963] HCA 66; (1963) 109 CLR 407, 414 (Windeyer J).

[12] [2017] FCAFC 56 (Greenwood, Besanko and Katzmann JJ).

[13] [2017] FCAFC 83 (Greenwood, Jagot, and Beach JJ).

[14] I consider the stylisation of the word LINDRUM to be slightly more than a 'change of style' as per Bennett J in Pioneer Computers Australia Pty Ltd v Pioneer KK [2009] FCA 135, [117] but less than the changes in the relevant trade marks considered in PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd [2021] FCAFC 128 (Jagot, Nicholas and Burley JJ ) where the stylised tail in the letter 'd' formed a significant part of the registered trade mark and the other new trade mark incorporated new embellishments as well as a change of font.

[15] Cowland, Confidential Annexure AC-2.

[16] [2016] FCAFC 92 [184].

[18] Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380, [273] (Yates J).

[19] Austin, Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [28] (Jacobson, Yates and Katzmann JJ).

[20] [2008] FCA 934, [202].

[21] [1982] RPC 425.

[22] [2012] FCAFC 8, [38] (Jacobson, Yates and Katzmann JJ).