Xiamen Huadian Switchgear Co Ltd v Powins Pty Ltd - [2022] FCA 1159 - FCA 2022 case summary — Zoe

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Xiamen Huadian Switchgear Co Ltd v Powins Pty Ltd

[2022] FCA 1159

Federal Court of Australia|2022-09-29|Before: Halley J

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Source facts

Court

Federal Court of Australia

Decision date

2022-09-29

Before

Halley J

Source

Original judgment source is linked above.

Judgment (108 paragraphs)

[1]

INTRODUCTION 1 The applicant and cross respondent, Xiamen Huadian Switchgear Co., Ltd, or "Huatech" (Huatech), is a manufacturer of medium-voltage electrical switchgear panels (Huatech Switchgear Panels) and vacuum circuit breakers (Huatech Circuit Breakers) (together, Huatech Products). 2 Huatech was registered as a company in December 2002. Huatech's founders decided at an early stage that its General Manager, Mr Charles Sher, would establish a German company with a German name (Gelpag GmbH) and that Huatech would enter into agreements with Gelpag GmbH. Huatech considered that the two perceived benefits of this arrangement were that Gelpag GmbH would be able to arrange certain "type testing" to international standards in Germany, and that Huatech's products might benefit from being affiliated with a German brand. 3 The Huatech Products have been sold to Australian customers since at least 2007 under the marks AMS and VEP, respectively. The Huatech Products have variously been co-branded with the mark GELPAG, a distributor's mark (by way of example, BV2, POWINS and LEISTUNG ENERGIE), or Huatech's own name, alongside the AMS or VEP mark. 4 Huatech is the owner of Australian trade mark registration no. 1148294 comprising the fancy mark VEP in class nine for electric switches, circuit breakers, electric relays, distribution boxes (electricity), switchboards, distribution boards (electricity), current transformers, sensors, and high and low voltage switch planks (the VEP Mark and VEP Registration). 5 By February 2019, in excess of 4,000 Huatech Switchgear Panels (together with Huatech Circuit Breakers) had been installed at sites around Australia. 6 Huatech contends that, as a result of the sale and promotion of the Huatech Products in the period up to February 2019, Huatech and its products had acquired a significant reputation in Australia as a source of manufacture, as had its AMS and VEP marks as indicia of trade origin. 7 The first respondent and first cross-claimant, Powins Pty Ltd (Powins), is an electrical turnkey solutions provider for electronic switchgear products in Australia. It was a non-exclusive distributor of the Huatech Products between February 2016 and February 2019. In the period since its distribution arrangements with Huatech ended in February 2019, Powins has promoted and sold a different range of medium voltage switchgear panels (New Powins Switchgear Panels) and circuit breakers (New Powins Circuit Breakers) (together, New Powins Products). 8 The second respondent and second cross-claimant (Gelpag AU) is a wholly owned subsidiary of Powins. Gelpag AU was incorporated in 2019. 9 Huatech alleges in the second further amended statement of claim filed on 20 December 2021 (2FASOC) that the respondents have engaged in misleading or deceptive conduct in contravention of ss 18 and 29 of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL), passing off and trade mark infringements. 10 Huatech alleges that Powins, or alternatively, both Powins and Gelpag AU, made the following representations in publications and in communications with its customers: (a) the New Powins Switchgear Panels originate from the same manufacturer as the Huatech Switchgear Panels sold in Australia since around 2006 by reference to the mark AMS, including in conjunction with distributor names as in the case of POWINS AMS and GELPAG AMS (Switchgear Origin Representation); (b) the New Powins Switchgear Panels now sold as "POWINS AMS12 and POWINS AMS24 Switchgear" are the same products as, or an updated model or version of, the corresponding Huatech Switchgear Panels (Switchgear Same Product Representation); (c) the New Powins Circuit Breakers originate from the same manufacturer as the Huatech Circuit Breakers previously sold in Australia since around 2006 (Circuit Breaker Origin Representation); (d) the New Powins Circuit Breaker now sold as VEP-VX5 is the same product as, or an updated model or version of, the corresponding Huatech Circuit Breaker (Circuit Breaker Same Product Representation); (e) Gelpag GmbH (or alternatively, Gelpag Advanced Technology GmbH or Gelpag AU) was the manufacturer of, and further or alternatively is the owner of the intellectual property rights in, the Huatech Products sold in Australia between 2005 to 2018 (Gelpag Representation); and (f) Powins, and further or alternatively, Gelpag AU, has the sole authority, or alternatively authority, of the manufacturer of the Huatech Products already installed in Australia, to provide servicing, spare parts and operational testing for all such products (Existing Products Affiliation Representation), (together, Representations). 11 Huatech relies on the Representations for both its passing off and ACL cases. 12 Huatech puts its passing off case in two ways. First, on the basis of the substantial reputation of Huatech and its products as a source of manufacture of switchgear panels and vacuum circuit breakers, and second, alternatively, on the basis of the reputation of the AMS and VEP marks as indicia of origin for those products. 13 Huatech contends that the respondents have infringed or threaten to infringe the VEP Registration by the use (and/or threatened use) of the mark VEP (including as "VEP-VX5" or "GELPAG VEP") in relation to circuit breakers, each of which is substantially identical or deceptively similar to the VEP Mark. 14 Huatech seeks declaratory, injunctive and pecuniary relief in this proceeding. Questions of pecuniary relief do not arise for determination at this stage. 15 The respondents filed an amended statement of cross-claim on 3 November 2022 (Amended Cross-Claim). They contend that Huatech has contravened ss 18 and/or 29 of the ACL, engaged in unconscionable conduct by making false and misleading representations to the respondents' existing and potential customers, and breached confidentiality and good faith contractual obligations under agreements that it had entered into with Powins by misusing confidential information in communications with those existing and potential customers. 16 For the reasons that follow I have made the following principal findings: (a) the respondents made each of the Representations; (b) each Representation was misleading or deceptive and false or misleading; (c) by February 2019, the AMS and VEP marks of Huatech had acquired a significant reputation in the Australian market with customers and end-users in respect of switchgear panels and circuit breakers; (d) by February 2019, Huatech had not acquired a significant reputation in the Australian market with customers and end-users as a source of manufacture of switchgear panels and circuit breakers; (e) the respondents passed off the New Powins Products as those of, or as being associated with, the manufacturer of the Huatech Products or the business or goods provided by that manufacturer; (f) the respondents passed themselves or their businesses off as being associated with the manufacturer of the Huatech Products or the business or goods provided by that manufacturer, or having its sponsorship, licence or approval; (g) the respondents infringed the VEP Registration; (h) the passing off conduct of the respondents is sufficient to constitute a conscious and contumelious disregard for Huatech's rights and an award of exemplary damages is appropriate; (i) given the nature and extent of the respondents' contraventions of ss 18 and 29 of the ACL, passing off and trade mark infringement it is appropriate to grant the prohibitory injunctions, declarations and corrective advertising sought by Huatech; (j) the determination of the quantum of the damages and/or account of profits and exemplary damages to which Huatech might be entitled is to be the subject of a subsequent hearing; (k) the representations alleged in the Amended Cross-Claim either did not arise as alleged or to the extent that they did arise they were not materially misleading or deceptive or false or misleading; (l) the inferences arising from the statements in the publications relied upon by the respondents in the Amended Cross-Claim either did not arise or to the extent that they did arise, they were not false or misleading or could have given rise to any detriment to the respondents and they were not disseminated using any confidential information of the respondents provided to Huatech; (m) Huatech has not engaged in any conduct that could be fairly characterised as a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience; and (n) Huatech has not breached any implied nor express terms of good faith nor confidential provisions in its distribution and sales contracts with Powins.

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Huatech's witnesses 17 Huatech relies on affidavits from the following witnesses: (a) Mr Franklin Zheng (aka Zheng Minsheng) affirmed on 8 February 2021 and 30 September 2021; (b) Mr Teddy Lin (aka Lin Mingrui) affirmed on 8 February 2021, 20 August 2021 and 30 September 2021; (c) Mr Bing Ye affirmed on 7 February 2021 and 20 August 2021; (d) Ms Min Ding affirmed on 20 August 2021; (e) Mr William Zhu (aka Zhu Wenli) affirmed on 20 August 2021; (f) Mr Alan Whitham affirmed on 29 September 2021 and 12 December 2021; and (g) Dr Alfonso Juan Rene Rossi Perez (Dr Rossi) affirmed 29 September 2021. 18 Mr Zheng is the Vice-General Manager and Director of Huatech's R&D Centre. He was one of the founders of Huatech and was responsible for designing the Huatech Products. He conceived the AMS and VEP brands. His evidence principally addressed the formation of Huatech and the development of its products. He was cross-examined. 19 Mr Lin is the Overseas Business Development Manager for Huatech. In the period since 2009, he has provided technical support for Australian distributors and end users of Huatech Products. Since 2015, he has also been responsible for promotional and sales support, quotations and specifications for commercial operations and relationships. 20 Mr Ye has been the Deputy General Manager of Huatech since 2016. He is responsible for Huatech's corporate strategy implementation, commercial and marketing operations, sales support, and research and development. His evidence is directed at aspects of Huatech's commercial operations, public statements made by Huatech and Huatech's commercial relationships with Powins, Gelpag AU and other entities. He was cross-examined. 21 Ms Ding has been an in-house legal and intellectual property administrator for Huatech since 19 July 2011. Her evidence addresses the circumstances in which drafts of two letters dated 29 March 2019 and 30 October 2019 letters, the subject of the Amended Cross-Claim, were sent to Huatech's Australian lawyers, Pipers Intellectual Property (Pipers). She was cross-examined. 22 Mr Zhu has been the General Manager of Huatech since 1 October 2016. He is responsible for all of Huatech's domestic and overseas business operations, including in Australia. His evidence is directed at aspects of the cross-claim alleging that confidential information was provided to him and to Huatech. He was cross-examined. 23 I am satisfied that each of the Huatech witnesses answered questions put to them in cross-examination truthfully and to the best of their recollection. Not surprisingly, their oral evidence was less fluent and more stilted than their affidavit evidence. None was a native English speaker and each gave oral evidence with the assistance of an interpreter. Contrary to the submissions advanced by the respondents, I do not accept that there was any deliberate attempt to avoid questions or otherwise answer questions dishonestly by asking from time to time to give answers through an interpreter when pressed on significant matters. In assessing the credit of the Huatech witnesses, I have also taken into account the additional challenge for the Huatech witnesses that arose through the frequent use of negative propositions in questions, such as "didn't he", "wasn't it" and "you never", which were at times combined with complex questions. 24 Mr Martin Chen and Mr Albert Foo were directors of Leistung Energie Limited (Leistung Energie), the current distributor of the Huatech Products in Australia. One of the principal issues raised in the Amended Cross-Claim was whether Mr Chen and Mr Foo had improperly used customer lists of the respondents, and in particular that Mr Foo was able to contact customers of Powins directly because of confidential information given to him by Mr Chen. Much of the respondents' challenge to the credit of the Huatech witnesses was focused on evidence concerning their knowledge of Powins' concerns about Mr Chen's relationship with Mr Foo, an allegedly fraudulent invoice prepared by Mr Foo, and directions that Huatech may have given internally that Mr Chen was not to be informed of purchase orders from Powins. 25 I am satisfied that, read as a whole and in context, contrary to the submissions advanced by the respondents, the responses given by the Huatech witnesses on these issues could not fairly be characterised as evasive, incomplete, argumentative or implausible. I accept that at times there appeared to be a certain sensitivity and defensiveness in their responses, but I am satisfied that this was largely attributable to Mr Chen being a former employee of Huatech, the rigours of cross-examination, technical difficulties that arose in the course of the video technology being used, translation issues and, given the allegations made in the Amended Cross-Claim, concerns about what Mr Chen and Mr Foo might have done with customer information of Powins. As the Huatech witnesses acknowledged, internal directions had been given within Huatech following Mr Zhu's meeting in March 2019 with two Powins' executives, Mr Dean van Wijk and Mr Julian Rauwendaal, both of whom gave evidence in the proceedings, that had the effect of limiting the dissemination of information concerning purchase orders of Powins to Mr Chen. 26 Mr Whitham is a consultant with 45 years' experience installing and maintaining power systems for industrial and commercial applications, including switchgear, and working with original equipment manufacturers. He has approximately 25 years' experience consulting in relation to the procurement, installation, commissioning and maintenance of electrical equipment. He gave evidence as an independent expert that AMS and VEP are only associated with the Huatech Products and are not generic terms for switchgear and circuit breakers in Australia. He was cross-examined. 27 Dr Rossi is a consultant engineer with approximately 45 years' experience as an electrical engineer for industrial and commercial applications. He gave evidence as an independent expert that AMS and VEP are product names associated with Huatech as the manufacturer of Huatech Products and those marks are not generic descriptors nor acronyms for switchgear and circuit breakers in Australia. He was cross-examined. 28 Both Mr Whitham and Dr Rossi were impressive witnesses. They responded directly and concisely to the questions that were put to them in cross-examination and their affidavit evidence was not relevantly disturbed. The challenges to their independence and alleged lack of impartiality were misconceived. The respondents submitted that Mr Whitham should never have been put forward as an expert witness by Huatech because it was clear from his email correspondence that "he had a long term friendship and business relationship with somebody Powins had dismissed in disgrace from its organisation". There was nothing in the email correspondence that Mr Whitham put before the Court in his second affidavit that relevantly impacted on Mr Whitham's independence. Mr Whitham candidly acknowledged in the course of his cross-examination that when he received the notice from Powins that the former employee had been dismissed, he "was disgusted with that piece of paper being sent the way it was" and his view was that if a company wanted to terminate someone they would send an email saying "he no longer works for us and please forward all future [correspondence] to whoever you nominate, not send a letter like that out". He was "totally disgusted with that attitude" by Powins but it was a "kneejerk reaction" on his part and it did "not stop [him] from continuing working with POWINS in the future on other issues". 29 Equally, Dr Rossi's evidence concerning his knowledge of the dismissal of that employee and subsequent communications with the employee did not cause me to doubt his independence. Dr Rossi acknowledged that he had been referred work by the employee. He stated, however, that he was aware that the dismissal was "under litigation" and he emphatically denied that he had ever enquired into the circumstances of the dismissal or discussed it with the employee. There is no reason why I should not accept his evidence on this issue. 30 Nor do I accept that Mr Rossi's location in Western Australia relevantly precludes him from giving evidence as to the extent of the use of AMS in Australia. The respondents did not point to any evidence that might suggest that the switchgear industry was materially different in other states and territories in this country.

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Respondents' witnesses 31 The respondents rely on affidavits from the following witnesses: (a) Mr Dean van Wijk sworn on 8 April 2021, 11 August 2021, 27 September 2021 and 2 December 2021; (b) Mr Julian Rauwendaal sworn on 11 August 2021, 3 December 2021 and 16 December 2021; (c) Mr Justin Senescall sworn on 22 February 2021; (d) Mr Noel Sankey sworn on 18 May 2021; (e) Mr Antonio Muguira sworn on 30 July 2021; (f) Mr Mark Brown sworn on 3 December 2021; and (g) Mr William Redmond sworn on 16 December 2021. 32 Mr van Wijk has been the general manager of the Queensland office of Powins since January 2015. He is responsible for the conduct of the day-to-day business operations of Powins, including sales, product management and client liaison. Prior to his employment by Powins, he had over 16 years' experience in the electrical engineering industry. He was cross-examined. 33 Mr Rauwendaal has been the mining manager for Powins since January 2015 and the Powins "Operations Manager Eastern Region" since March 2018. He has over 27 years' experience in the electrical switchgear design and manufacturing industry. He was cross-examined. 34 Both Mr van Wijk and Mr Rauwendaal were unsatisfactory witnesses. They were argumentative, partisan, defensive and evasive. They had a pronounced tendency not to answer questions directly and both gave long-winded responses and commentary on issues at best only tangentially relevant to the questions they had been asked. 35 The following exchange in the course of the cross-examination of Mr van Wijk was a representative example of his approach to giving evidence. After having his attention drawn to the agreement that Powins entered into with Gelpag GmbH on 8 March 2019, the cross-examination proceeded as follows: Okay. Do you agree that you were in a hurry to have the agreement signed urgently at the beginning of March?---We were - we were not in a hurry to sign the agreement. Do you agree that there was some urgency in having the agreement signed, because tenders for three customers, including BHP, were under review?---I - when I - we not - we were not in - we were not in a rush to sign - sign the agreement, because there was no - they didn't have a Type Test for a product. We knew that. I don't - I don't know what you're referring to, in terms of BHP tenders. Maybe if you can take me to those and I can have a look at that, then I could understand. Could the witness please be shown VWX5. If we can go across to the third page of that document, down the bottom. It should be number 61. If we could just zoom in. Thank you. Do you see there, there's an email from you to Charles Sher on 11 March?---Yes. You say: Charles, find attached the signed copy of the distributor agreement for your urgent actioning. Please sign the attached and send back to me electronically for immediate use. I have posted the original to you for signing as well, which - if you could kindly send me back a copy, that would be good. And then you say: I require this back urgently for BHP, Mount Isa and Rio Tinto current tenders which are under review for approximately 60 panels. Do you see that?---Correct. So, do you agree with me that there was urgency for you to get this contract signed on 11 March, three days after you had issued the announcement?---Yes, but this doesn't - this doesn't - this agreement doesn't include the conversations we had, in terms of providing a Type Tested product. It also doesn't take into consideration that we would tender packages for BHP, Mount Isa and Rio Tinto, and those would take, in effect, up to six - six to nine months to be awarded to a company. HIS HONOUR: Mr van Wijk, did you need this signed distributor agreement urgently from Mr Sher, as at 11 March 2019?---Yes. And why did you need it urgently?---We - we required it urgently to - at that time, Huatech and its distributors had - had already informed all of our clients that POWINS no longer had access to their products, and could no longer service the Australian market, in terms of medium-voltage switchgear. I required this to send out to our clients to say we had signed an agreement with GELPAG switchgear and were - and we would have a product that we would be able to service the market with. Did you need it urgently - - -?---At that time - - - Yes. Did you need it urgently for BHP, Mount Isa and Rio Tinto's current tenders?---We submitted it as part of those tenders to say that we did have a continuity of product. So you did require it urgently for BHP, Mount Isa and the Rio Tinto current tenders?---Correct. That is the signed agreement?---Yes. 36 Mr Rauwendaal's advocacy was particularly prominent in his evidence in relation to the content of the communications with the respondents' customers. This evidence included that references to products being identical in those communications was meant to convey only that they were identical in appearance, namely the colour and shape of the box in which the products were located, and that references to the New Powins Circuit Breaker being an updated model or version of the Huatech Circuit Breaker was only intended to convey that the two products were interchangeable and were 100% compatible. 37 Further, I do not accept, contrary to the submissions advanced by the respondents, that the concessions made by Mr Rauwendaal in the course of his cross-examination after the lunch break should be given little weight on the basis that he did not understand questions or that he was tired. Rather, I am satisfied the concessions were wholly consistent with the content of the contemporaneous documents and the apparent logic of events. These concessions included the following, in relation to the reference to the installation of 4,000-plus Huatech Switchgear Panels in an email exchange with EDL Energy in January 2020: Continuing: For your interest only, I attach brochure of the POWINS AMS12 GELPAG switchgear with 4000-plus panels installed. ?--- Yes. Now, based on the answers you've given to previous questions, you would accept that you understood, at the time you sent this email, that the 4000-plus panels installed could only possibly refer to the Huatech product and not to the product that you were now selling as POWINS AMS12?---Yes. And so you understood that to be misleading?---Yes. I - as - as I spoke before, the 4000 panels I spoke of was of - of GELPAG. That's what I hoped to convey to the gentleman. You understood that what you had said was misleading?---Yes. 38 Nor do I accept, contrary to the respondents' submissions, that Mr Rauwendaal's confrontational and argumentative approach in the course of his cross-examination can be explained away on the basis that he was "a true tradesperson who has not received accolades from university". His advocacy in giving evidence reflected a sophisticated understanding of the issues in play in the proceedings. 39 Ultimately, I was not able to place any material weight on the evidence of Mr van Wijk or Mr Rauwendaal on matters in dispute, except to the extent that it was against interest or corroborated by contemporaneous documents. 40 Mr Muguira has been employed by MEHE Electrical Engineering Consultants (MEHE) as a registered electrical engineer since July 2012. His role at MEHE involves electrical engineering design and consulting, electrical and power system engineering. He has over 35 years' experience working on electrical design projects in mining and heavy industry sectors in Australia, New Zealand and Indonesia. During his career he has been primarily involved with the design and operation of medium voltage switchgear, including air-insulated type switchgear and its components. He gave evidence of the use of acronyms for switchgear products in the Australian electrical industry. He was cross-examined. 41 Mr Sankey has over 39 years' experience in the electrical industry. He is currently an operations manager for TGOOD Australia Pty Ltd. He was previously employed in a variety of roles within the switchgear industry, including as a medium voltage switchgear national product manager. He also gave evidence of the use of acronyms for switchgear products in the Australian electrical industry. He was cross-examined. 42 Mr Muguira generally answered questions directly and without prevarication. The same could not be said for Mr Sankey. Mr Sankey found it difficult to focus on the questions he was asked, he was often argumentative and he appeared to be more concerned with providing answers that might assist the respondents rather than making appropriate concessions or clarifications when confronted with documents or propositions inconsistent with his generalised affidavit evidence. 43 Moreover, Mr Sankey's affidavit evidence, to which he attempted to adhere in the course of his cross-examination, that AMS and VEP were not specific to any manufacturer, was contradicted by a licence agreement between Lend Lease i.Power Solutions Pty Ltd and Lend Lease i.Power Solutions (WA) Pty Ltd (iPower), Huatech and Gelpag GmbH dated 29 March 2012 that identified the marks to be licensed pursuant to the agreement as AMS and precluded the two iPower corporations, as licensees, from manufacturing, marketing or selling "the Contract Products to accommodate other brand of VCB instead of VEP". The "Contract Products" were identified as AMS-12, AMS-24 and AMS-36. 44 When confronted with this inconsistency in cross-examination, Mr Sankey sought to deflect the significance of the inconsistency, as illustrated in the following exchanges with his cross-examiner: And so do you agree with me that when i.Power Solutions used BV2 AMS on its products while you were the medium voltage manager this is precisely what it was doing. It was adding the BV2 prefix to the licensed mark AMS?---Well, at that time, we had been using that for the last - since I started in 2007, so it meant nothing to me. It was just what we had been using for that time. … So do you agree with me that it is crystal clear in this agreement that VEP was Huatech or GELPAGs brand of vacuum circuit breaker?---No, it's not that - I - as I said, I always understood the VEP to mean vacuum embedded pole. Well, that's not the question I asked you. I asked you earlier whether your evidence was that it was only used as a - to generally describe a vacuum embedded pole irrespective of who manufactured or supplied the embedded pole vacuum circuit breaker and you said "yes". What I'm putting to you is that this is entirely inconsistent with that evidence?---But that's what they've named it. I - I have no - I had no influence on what they named their product. Well - - -?---They could call it anything they liked. 45 Neither Mr Muguira nor Mr Sankey was able to identify any use in Australia of the acronyms AMS or VEP by any manufacturer other than Huatech. In the absence of such evidence, I was not able to place any weight on their evidence to the extent that it was to the effect or might otherwise have inferred that AMS and VEP were widely used as acronyms in the Australian electrical industry for switchgear and circuit breaker products. 46 Mr Senescall is the principal of Seneworth Legal Partners. He was previously engaged by the respondents to act for them in relation to the disputes the subject of these proceedings. He gave evidence concerning the responses by the respondents to the letters written by the law firm, Pipers, on behalf of Huatech. He was not cross-examined. 47 Mr Brown has been employed by Powins since about 1 March 2018 as its Operations Manager in Western Australia. He was engaged as a consultant to Powins between 2015 and 2018 in relation to Powins' Medium Voltage range of switchgear products. He worked for iPower for approximately one to one and a half years from 2002 and became familiar with Gelpag GmbH and subsequently formed a working/business relationship with Mr Sher. He gave evidence that in his experience Australia was a unique market for the sale of switchgear, and mechanisms are often developed here in response to Australian specific problems or compliance issues. He also gave evidence of enquiries that he had received in communications with two customers in 2019 that had led to him sending emails to them concerning the "GELPAG MSA" and "POWINS AMS" products. He was not cross-examined. 48 Mr Redmond is a solicitor of Redmond + Redmond lawyers. He gave evidence in relation to Mr Charles Sher's alleged inability to give oral evidence in the proceedings. He was not cross-examined.

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2016 Distribution Agreement 52 In February 2016, Huatech and Powins entered into an agreement (2016 Distribution Agreement) under which Powins was appointed as a non-exclusive distributor of Huatech's products for a period of three years within Australia, Fiji, New Caledonia and PNG. 53 Clause 1 of the 2016 Distribution Agreement defined "Products" as follows: Products shall mean the products manufactured or marketed by the Company listed in Schedule 1. 54 The following products were listed in Schedule 1: Schedule 1 List of Products Products shall mean AMS type medium voltage air insulated metal-clad switchboards, including AMS - 12: 12kV, 25/31.5/40/50kA, 630/1250/2500/3150A AMS - 24: 24kV, 25/31 .5kA; 630/1250/2500A AMS - 36: 36kV, 25/31.5kA; 630/1250/2000/2500/3150A 55 Clause 3.3 of the 2016 Distribution Agreement stated: 3.3 Site Services and/or After-sales [Powins] shall be responsible for all after-sales service of the Contract Products within the warranty period of the Contract Products. 56 The warranty period was the earlier of 18 months from the date of delivery or 12 months from the date of installation/commissioning. 57 Clauses 6.1 and 6.2 of the 2016 Distribution Agreement stated as follows: 6.1 Use of the Company name [Huatech] expressly prohibits any direct or indirect use, reference to, other employment of its name, trademarks, or trade name other than the purpose of this Agreement. All advertising and other promotional material will be submitted to [Huatech] at least two (2) weeks in advance and will only be used if [Huatech] consents thereto, which consent shall not be unreasonably withheld. 6.2 Intellectual Property Rights 6.2.1 [Powins] shall promptly notify [Huatech] in writing of any infringement, or suspected or threatened infringement, of the Information, the Licensed Marks or any of the Company's Intellectual Property Rights relating to the Products which may come to [Huatech]'s knowledge during the term of this Agreement. Powins shall not take further steps in respect of such infringement without the Company's prior written instructions. 58 Clause 13.1 of the 2016 Distribution Agreement provided: 13.1 Arbitration Huatech Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination shall be referred to and finally resolved by arbitration at the Hong Kong International Arbitration Centre ("HKIAC") in accordance with the UNCITRAL Rules as at present in force and as may be amended by the rest of this Clause. 59 After delivery of the Huatech Products, Powins completed final wiring and assembly in Australia in order to sell and market the completed switchgear product. 60 In the period between 2016 and January 2019, Powins promoted and sold the Huatech Products in Australia under or by reference to the marks AMS and VEP respectively.

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Powins trade mark applications 68 On or about 15 March 2019: (a) trade mark applications no. 1996288 (GELPAG AMS in class 9), no. 1996289 (GELPAG VEP in class 9) and no. 1996290 (GELPAG MSA in class 9) were filed naming Gelpag AU as applicant; and (b) trade mark application no. 1996287 (POWINS AMS in class 9) was filed naming Powins as applicant, (together, the Trademark Applications). 69 The class 9 filing for each of the Trademark Applications included: Building automation installations; Electronic digital automation installations for measuring building services installations; Electronic digital building automation systems; Engineering design software; Electrical switchgear; Electric control boxes; Switchgear (electric); Telemetry apparatus; Telemetry installations; Terminal boxes (electrical); Boxes adapted for housing electric instruments; Electric circuit breakers; Electric power units; Electric power analysers; Electric power converters; Electric power line detectors; Switch cabinets (electric); Switching boxes for use in electrical engineering; Switching devices for electric contactors; Switching devices for electric relays; Switching power supply apparatus; Electric transformers; Apparatus for accumulating electricity; Electrical accumulators; Instruments for accumulating electricity; Electric regulating apparatus; Electric regulating modules; Electrical apparatus for use in regulation; Electronic regulating apparatus; Regulating apparatus, electric; Regulating transformers; Electronic controlling apparatus; Power units for supplying (other than generating) electrical current; Electric current transformers; Electric current adaptors; Electric current control devices; Electric current distribution apparatus; Switch mode power supply apparatus (electric); Electric circuits; Distribution units (electricity); Electrical distribution installations; Electricity distribution apparatus; Electricity distribution instruments; Electric power supplies (other than generators); Computer software; Application software': Australian Trade Mark Application No. [1996287, 1996288, 1996289 and 1996290] (published, under examination, not accepted, at the time of filing this pleading). [Emphasis omitted.]

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Misleading or deceptive conduct, and false or misleading representations 71 Section 18 of the ACL provides: (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1). 72 Section 29(1) of the ACL relevantly provides: A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or … (g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or (h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation. 73 The principles and authorities in relation to ss 18 and 29 of the ACL are well established. 74 First, although s 18 is directed at conduct and s 29 is directed at representations, there is no material difference between the expressions "misleading or deceptive" in s 18 and "false or misleading" in s 29: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450; [2020] FCAFC 130 (TPG FCAFC) at [21] (Wigney, O'Bryan and Jackson JJ); Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493 at [88] (O'Callaghan J). 75 Second, it is necessary to identify the impugned conduct and then to consider whether that conduct, considered as a whole and in context, is misleading or deceptive or likely to mislead or deceive: Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 (Google) at [89], [102] and [118] (Hayne J); Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 (Campomar) at [100]-[101] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). As put by McHugh J in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 (Butcher) at [109]: It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporation's conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct. [Footnotes omitted.] 76 In TPG FCAFC, the Full Court (Wigney, O'Bryan and Jackson JJ) emphasised the need to look at all relevant circumstances in order to determine whether the impugned conduct was misleading or deceptive or likely to mislead or deceive. Their Honours stated at [25]: A question that commonly arises is whether a publication or communication is misleading when it contains a misleading statement in one place but also contains another statement, perhaps in a different place in the publication or communication, which remedies the misleading character of the first statement. Ultimately, the question is one of overall assessment of the publication or communication. The correct approach was summarised by Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647 (at [214]) (upheld in Valve Corporation v Australian Competition and Consumer Commission (2017) 258 FCR 190, noting that there was no challenge to his Honour's relevant statements of principle (recorded at [158]): One consequence of the need to consider the conduct in light of all relevant circumstances is that any allegedly misleading representation must be read together with any qualifications and corrections to that statement. Hence, although a qualification to a statement might be effective to neutralise an otherwise misleading representation, this might not always be so, particularly if the misleading representation is prominent but the qualification (often linked to the representation by an asterisk) is not: Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1, 17 [37] (Stone J). As Keane JA expressed the point, the qualifications must have "the effect of erasing whatever is misleading in the conduct": Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 [83]. 77 Third, conduct is misleading or deceptive or likely to mislead or deceive if it has the tendency to lead into error, that is, there is a sufficient causal link between the conduct and the likely error on the part of persons exposed to the conduct: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 (TPG HCA) at [39] (French CJ, Crennan, Bell and Keane JJ). Consumers may be lead into error if particular words are selected for emphasis and the balance are relegated to relative obscurity as many persons will only absorb the general thrust of information presented to them: TPG HCA at [51] (French CJ, Crennan, Bell and Keane JJ). 78 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: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87 (Bowen CJ, Lockhart and Fitzgerald JJ); Butcher at [112] (McHugh J); TPG FCAFC at [22(a)] (Wigney, O'Bryan and Jackson JJ). Mere confusion or wonderment will not ordinarily establish misleading or deceptive conduct: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 (Taco Bell) at 201 (Deane and Fitzgerald JJ). 79 Fourth, where the impugned conduct is directed to the public generally (or some relevant section of the public), the Court must consider the likely characteristics of the persons who comprise the relevant class of persons to whom the conduct is directed and consider the likely effect of the conduct on ordinary or reasonable members of the class, disregarding reactions that might be regarded as extreme or fanciful: Campomar at [101]-[105] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Kraft Foods Group Brands LLC v Bega Cheese Ltd (2020) 377 ALR 387; [2020] FCAFC 65 (Kraft) at [236] (Foster, Moshinsky and O'Bryan JJ). 80 Fifth, it is not necessary to show actual deception nor to adduce evidence from persons to show that they were actually misled or deceived: see, eg, Google at [6] and [9] (French CJ, Crennan and Kiefel JJ); Flexopack SA Plastics Industry v Flexopack Australia Pty Ltd (2016) 118 IPR 239; [2016] FCA 235 (Flexopack) at [265] (Beach J). Further, it is not necessary to show any actual or completed transaction entered into, although the conduct must be more than merely transitory or ephemeral: Flexopack at [268]-[269] (Beach J). 81 Sixth, provisions proscribing misleading or deceptive conduct may be contravened at the point where members of the target audience have been seduced into the seller's "web of negotiation" or "marketing web" by the impugned conduct, even if the consumer may come to appreciate the true position before a transaction is concluded: TPG HCA at [50] (French CJ, Crennan, Bell and Keane JJ).

[14]

Passing off 82 The tort of passing off protects a right of property in business or goodwill built up by the activities of the plaintiff: AG Spalding & Bros v AW Gamage Ltd (1915) 32 RPC 273 at 284 (Lord Parker); Campomar at [108] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). 83 Passing off is a remedy for the invasion of property in a mark, name or get-up which has been improperly used: AMI Australia Holdings Pty Ltd v Bade Medical Institute (Australia) Pty Ltd (No 2) (2009) 262 ALR 458; [2009] FCA 1437 at [81] (Flick J). In Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 (Reckitt), Lord Oliver stated at 499: The law of passing off can be summarised in one short general proposition - no man may pass off his goods as those of another. 84 There are three core elements to the tort of passing off which a plaintiff must establish: Reckitt at 499 (Lord Oliver); Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd (2020) 156 IPR 413; [2020] FCA 1530 (Allergan) at [447] (Stewart J); Flexopack at [278]-[279] (Beach J). 85 First, an applicant must establish a goodwill or reputation attached to the goods or services which they supply in the mind of the purchasing public by association with the identifying "get-up" under which their particular goods or services are offered to the public: Reckitt at 499 (Lord Oliver). The plaintiff's own indicium must be known in the relevant market: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 (ConAgra) at 343 (Lockhart J). 86 The plaintiff must establish that its product bears a distinctive character within the market: Cadbury Schweppes Pty Ltd v Pub Squash Co Ltd [1980] 2 NSWLR 851 at [22]; (1980) 32 ALR 387 at 393 (Lord Scarman). This must be such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Demonstrating this element involves proof of a substantial number of persons who are aware of the plaintiff's product and who are thus potential customers: Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; [2013] FCAFC 59 (Knott Investments) at [14] (Allsop CJ); Taco Bell (Beach J). 87 The size and extent of the class will vary according to the circumstances and will be measured by reference to the relevant group or section of the public most likely to be customers: Knott Investments at [14] (Allsop CJ). 88 The nature of the class of persons who may be deceived or confused will necessarily be informed by the nature of the good or service in question and the characteristics of that class: Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd (2017) 251 FCR 379; [2017] FCAFC 83 at [71] (Greenwood, Jagot and Beach JJ). 89 Relevantly, it is not necessary that a plaintiff show a business presence in Australia to be successful in an action for passing off, provided it can establish a local reputation: ConAgra at 344 (Lockhart J); Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc (2020) 385 ALR 514; [2020] FCAFC 235 (Hashtag FCAFC) at [126]-[127]. 90 The relevant date for assessing reputation is the commencement of the relevant conduct by the respondents, and to the extent that a respondent's conduct may have eroded an applicant's goodwill, it should not have the benefit of any such erosion: Flexopack at 280 (Beach J). 91 Customers need not be aware of the plaintiff's actual identity provided they recognise the plaintiff's product by the indicium in suit: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 189 (Bowen CJ). 92 In Birmingham Vinegar Brewing Co Ltd v Powell [1897] AC 710, Lord Halsbury LC said at 713-14: I am satisfied that a person who puts forward this 'Yorkshire Relish,' made as it is by the present defendants, is representing it as being a particular manufacture. It may be true that the customer does not know or care who the manufacturer is, but it is a particular manufacture that he desires. He wants Yorkshire Relish to which he has been accustomed, and which it is not denied has been made exclusively by the plaintiff for a great number of years. This thing which is put into the hands of the intended customer is not Yorkshire Relish in that sense. It is not the original manufacture. It is not made by the person who invented it. Under these circumstances it is a fraud upon the person who purchases to give him the one thing in place of the other. 93 To the same effect, Lord Herschell said at 715: I think that the fallacy of the appellants' argument rests on this: that it is assumed that one trader cannot be passing off his goods as the manufacture of another unless it be shewn that the persons purchasing the goods know of the manufacturer by name, and have in their mind when they purchase the goods that they are made by a particular individual. It seems to me that one man may quite well pass off his goods as the goods of another if he passes them off to people who will accept them as the manufacture of another, though they do not know that other by name at all. 94 Second, an applicant must establish a misrepresentation by the respondent to the public (intentional or otherwise) leading or likely to lead to a belief by the public that the goods or services offered are those of the applicant: Reckitt at 499 (Lord Oliver). Proof of actual deception is not required: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 at [62] (Weinberg and Dowsett JJ). However, proof of deliberate borrowing of features or get-up of a rival's product provides evidential value: Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 (Australian Woollen Mills) at 657 (Dixon and McTiernan JJ). This is not confined to cases of "deliberate" dishonesty - it is enough that the "allegedly infringing trader borrows aspects of the other trader's mark": In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (2020) 377 ALR 116; [2020] FCA 193 at [121] (Katzmann J), citing Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd (2018) 264 FCR 422; [2018] FCAFC 105 at [97] (Murphy, Gleeson and Markovic JJ). The role of intention will always depend on the circumstances of the case. 95 Not every form of conduct causing confusion or even deception will constitute passing off. As Rares J stated in Ricegrowers Ltd v Real Foods Pty Ltd (2008) 77 IPR 32; [2008] FCA 639 at [75]: In cases of passing-off where the wrongful appropriation of the reputation of the plaintiff or that of his goods is in question, a plaintiff who used descriptive words in his trade name would find out that quite small differences in a competitor's trade name would render the latter immune from action. The law recognises the possibility of blunders by members of the public when descriptive words are used by two traders as part of their respective trade names. But, Stephen J said the risk of confusion must be accepted because "to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe": Hornsby [Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216] at CLR 229; ALR 648-9; IPR 826-7. 96 Traders have a right to describe their products and to use their own names. The law also recognises a doctrine of "honest concurrent user": General Electric Co (of USA) v General Electric Co Ltd [1972] 1 WLR 729 at 743 (Lord Diplock). This assumes that the honest concurrent use will result in some risk of deception, but provides an equitable compromise between the competing interests of the concurrent users and those of the public and other traders. 97 It is not necessary that the representation be fraudulent: ConAgra at 344-5 (Lockhart J), 365 and 372 (Gummow J). 98 Third, Huatech must show that it has suffered, or is likely to suffer, damage by reason of the misrepresentation: Reckitt at 499 (Lord Oliver).

[16]

Respondents' Publications and Customer Communications 100 Huatech alleges that the Representations were conveyed in the promotional and advertising materials of the respondents annexed to the 2FASOC (Publications) and in the direct communications by the respondents with their customers identified in Schedule 11 to the 2FASOC (Customer Communications). 101 Huatech alleges the Representations were made by both Powins and Gelpag AU because Gelpag AU was a wholly owned subsidiary of Powins, the two companies shared a common (and sole) director, the respondents admit that the New Powins Products were sold by "the Respondents", the respondents positively plead in the cross-claim that their customers are customers of the "Cross-claimants" and that the statements made by Huatech directed at Powins gave rise to inferences about both respondents. Huatech submits that the conduct in relation to the Publications and the Customer Communications was therefore jointly engaged in by Gelpag AU or was conduct authorised by Gelpag AU. The respondents did not dispute these contentions of Huatech. In the context of these contentions and submissions I accept that both respondents are responsible for the distribution of the Publications and the Customer Communications. 102 The Publications are pleaded in the 2FASOC as comprising: (a) the document entitled "Announcement of Exclusive Distributor POWINS Pty Ltd" on and since 8 March 2019, (2019 Announcement); (b) a brochure entitled "Powins Switchgear" on a date no later than 27 February 2019, (New Powins Switchgear Brochure); (c) a LinkedIn post entitled "POWINS Appointed Exclusive Distributor for GELPAG Switchgear" that was published in or about March 2019 (March 2019 LinkedIn Post); (d) a quarter-page advertisement published in the January-March 2020 edition of Industrial Electrix magazine (First 2020 Advertisement); (e) a four-page feature entitled "Australian Electrical Turnkey Solution Provider" published in the January-March 2020 edition of Industrial Electrix magazine and republished by Mr Dean van Wijk through a LinkedIn post in or about March 2020 (First 2020 Feature); (f) a three-page feature entitled "Australian Electrical Turnkey Solution Provider" which Powins caused to be published on pp 106-8 of Australian Power Technologies' "Purchasing Directory - Transmission and Distribution - Industrial Electrix" on about 21 May 2020 (Second 2020 Feature); (g) a further LinkedIn Post published by Mr Dean van Wijk on or about 23 May 2020 (May 2020 LinkedIn Post); (h) a cover story entitled "POWINS AMS 12kV GELPAG Switchgear and Switchroom the Choice of Another Brownfield Upgrade in the Mt Isa Region" published in Australian Power Technologies' "Transmission and Distribution", Issue 3 June-July 2020 (July 2020 Cover Story); and (i) a three-page feature entitled "Australian Electrical Turnkey Solution Provider" published in Australian Power Technologies' "Transmission and Distribution", Issue 3 June-July 2020 (Third 2020 Feature). 103 The Customer Communications comprise the emails listed in Schedule 11 of the 2FASOC sent by the respondents to their customers in the period between 20 March 2019 and 6 February 2021 and two telephone conversations on 20 March 2019. 104 It is alleged in the 2FASOC that Powins has and, alternatively, Powins and Gelpag AU have, published and distributed, or authorised the publication and distribution of the Publications and the Customer Communications.

[17]

Huatech 105 Huatech submits that the Publications and the Customer Communications demonstrate a prolonged and extensive pattern of seeking to leverage off the commercial reputation of Huatech, its products and its marks since February 2019. It further submits that the Court ought to find that the respondents intended to appropriate Huatech's commercial reputation and that the respondents intentionally adopted identical (AMS and VEP) and similar (MSA) marks to Huatech's registered and unregistered trademarks and brand names of which they were aware. 106 Huatech submits that the steps taken by the respondents to secure the GELPAG domain name (prior to the 2016 Distribution Agreement expiring), to license the GELPAG trade mark, and to use references to GELPAG without any attempt to disclaim the "historical" install base of the Huatech Products or differentiate their products from the Huatech Products, are part of this course of conduct. 107 Huatech submits that, in making the Representations, the respondents intentionally engaged in that conduct for the purposes identified above and, in so doing, misrepresented that there was an affiliation between the respondents and the New Powins Products, on the one hand, and Huatech and the Huatech Products, on the other hand, for the respondents' benefit. 108 In order to make good these propositions, Huatech has identified various factors that it contends were employed in various combinations in the Publications and Customer Communications and on which it relies to establish that the respondents made each of the Representations (Affiliation Factors). 109 Huatech relies on the following Affiliation Factors, in various combinations, as giving rise to the Switchgear Same Product Representation, the Circuit Breaker Same Product Representation, the Switchgear Origin Representation and the Circuit Breaker Origin Representation (together, Same Product and Origin Representations): (a) using AMS (Switchgear Panels only) (Use AMS); (b) emphasising the letters A M S (Switchgear Panels only) (Emphasise A M S); (c) using VEP (Circuit Breakers only) (Use VEP); (d) emphasising the letters V E P (Circuit Breakers only) (Emphasise V E P); (e) using MSA (Switchgear Panels only) (Use MSA); (f) emphasising the letters M S A (Switchgear Panels only) (Emphasise M S A); (g) referring to the customers' "install base" or "installed product" of Huatech Products (whether referred to as "GELPAG" or otherwise) in communications about the New Powins Products (Cite Customer Install Base); (h) referring to the Australia-wide or worldwide install base of the Huatech Products (whether referred to as "GELPAG" or otherwise) in communications about the New Powins Products, including references to "thousands of panels" in communications about the New Powins Products (Cite Total Install Base); (i) referring to the effect of "the previous switchgear range (2005-2018)" or "the original GELPAG switchgear released and sold in Australia from 2005-2016" or "existing GELPAG switchgear installed from 2005" in communications about the New Powins Products (Cite Previous Range); (j) stating that the New Products are "identical" to the Huatech Products (Identical). This included a number of statements that the products were "identical and interchangeable with" the previous products. There was no clear explanation as to why "identical" would be necessary or appropriate if mere interchangeability or equivalence was all that was sought to be conveyed; (k) stating or implying that the New Powins Products are what used to be sold as GELPAG AMS, POWINS AMS or BV2 AMS (Former Name Affiliation); (l) stating or implying that the New Powins Products are what used to be sold or serviced by Powins or iPower (Continuation of Supply). This includes references to the respondents having a type tested product at any time between February 2019 and 4 July 2019; and (m) responding to queries for Huatech Products or parts by offering a "GELPAG" New Product or part and/or asking the customer to change the part number/description in their system (Product Switch). 110 Huatech relies on the following Affiliation Factors, in various combinations, as giving rise to the Gelpag Representation: (a) Cite Customer Install Base; (b) Cite Huatech Install Base or Cite Total Install Base; (c) stating or implying that the Huatech Products were manufactured by Gelpag GmbH (Gelpag Manufacture); (d) stating or implying that Gelpag GmbH owns the intellectual property rights in the Huatech Products (Gelpag IP); and (e) stating or implying that the New Powins Products were based on the Huatech Products' design (Upgraded Design). 111 Huatech relies on the following Affiliation Factors, in various combinations, as giving rise to the Existing Products Affiliation Representation: (a) stating or implying that the respondents are "authorised" in relation to existing product (R Authority); (b) stating or implying that the respondents have "sole authority" in relation to existing product (R Sole Authority); (c) stating or implying that Huatech does not have "authority" in relation to existing product (Huatech No Authority); and (d) stating or implying that Huatech can no longer manufacture or will no longer manufacture the existing product (Huatech No Manufacture). 112 Huatech annexed to their closing submissions detailed schedules in which it identified which Representations it alleged were conveyed by each of the Publications and each of the Customer Communications. It also annexed schedules identifying which Affiliation Factors it relied upon to establish each Representation that it alleged was conveyed in each of the Publications and Customer Communications.

[18]

Respondents 113 The respondents deny that the Representations were conveyed by the Publications and the Customer Communications. In an annexure to their closing submissions, the respondents provided a 40-page table summarising the reasons why they contend the Representations did not arise (Respondents' Table). 114 The Respondents' Table includes responses to the following effect, some of which would appear to be more directed at alleged falsity rather than whether the Representations were conveyed: (a) the representation is not expressly made nor can it be inferred from any of the language contained in the text; (b) the use of the words "Air-Insulated metalclad switchgear" is descriptive of the object being sold and cannot be the source of the inferences sought to be drawn by Huatech; (c) the use of AMS should be accepted as an industry accepted term for "air insulated metalclad switchgear"; (d) the references to "Gelpag" were intentional and true, Gelpag had a reputation in Australia for good design in the electrical market in general and more specifically in switchgear and do not give rise to any representation of manufacturing origin; (e) references to new products being exchangeable with previous products installed by Powins is only a representation offering customers a capability to extend existing infrastructure in a cost effective manner; (f) the manufacturer of the product is not expressly stated; (g) customers in the market rely on the name of the service provider and the marketed design, not the place of manufacture; (h) the identity of the person providing the installation and ongoing maintenance services was the relevant matter for end users; (i) the letters AMS were not used together, rather they are contained in a description of what the product does; (j) it could never be suggested by Huatech that it had any claim to the name "GELPAG"; (k) Gelpag GmbH created a market for itself in Australia in the period between approximately 2007 to 2016 as a designer and a company that could support and provide German engineered switchgear and circuit breakers; (l) the affiliation of the "Gelpag" name is a consequence of the strategy undertaken in Australia to market the "Gelpag" name rather than the name of the manufacturer, Huatech, and cannot give rise to a representation as to the origin of manufacture; (m) the phrase "you already have a large quantity of GELPAG switchgear installed on your site" is a direct reference to the way in which the product was sold as being German designed and a Gelpag GmbH authorised product; (n) it is true that as at 11 May 2020, Powins was the sole distributor of GELPAG switchgear; (o) the expression "identical" in the context of a tender should be limited to the fact that the product will be contained within a metalclad box with similar dimensions which has already been supplied and needs replacing as part of the tender; (p) the phrases "latest Gelpag MSA technology advancements" and the "new Gelpag switchgear" all indicate to the reader that here is a new product being provided and that it has no association with the manufacturer Huatech; (q) the document on its face does not make any references to Huatech's products nor components; (r) the type test certificates for the product clearly indicate that the designer of the product is "GELPAG" and it is manufactured by an entity other than Huatech; (s) the tender process would eliminate any misrepresentations that might have been made because the type test certificates would need to be produced; (t) the respondents are marketing their products as MSA or VX5, not AMS; (u) the new products marketed by the respondents are designed by Gelpag AU, and improvements have been made to the old design that Gelpag AU "participated in the development of"; and (v) a vacuum circuit breaker described as VX5 cannot be said to have any relevance to VEP in circumstances where VX5 is described as "new" or "technologically advanced", (together, Respondents' Answers).

[19]

General observations 115 The atomistic detail with which Huatech and the respondents have approached the issue of whether the Representations were conveyed in the Publications and Customer Communications is perhaps the inevitable consequence of the breadth of the matters relied upon by Huatech in advancing its ACL and passing off cases in these proceedings. 116 Before considering whether the Representations are conveyed in each of the Publications and the Customer Communications, it is necessary to make some general observations. 117 First, in both their written and oral closing submissions, the respondents had a tendency to focus on the literal truth of statements included in the Publications and Customer Communications in isolation from the balance of the documents and the overall impression otherwise conveyed by the document. This tendency was particularly pronounced in the Respondents' Answers. 118 The Respondents' Answers do not confront the inherent ambiguity and consequent misleading consequence of describing both the Huatech Products and the New Powins Products as GELPAG products. This ambiguity and misleading consequence cannot be justified on the basis that GELPAG had any alleged design input in the development of the Huatech Products or by the extent to which the Huatech Products were promoted in Australia as GELPAG rather than Huatech Products. 119 Any reputation that Gelpag GmbH may have had as a designer of the Huatech Products and Powins may have had as a service provider, providing installation and ongoing maintenance services, does not carry with it any necessary implication that Huatech could not have a reputation as a manufacturer of the Huatech Products, or that AMS and VEP could not have a significant reputation with respect to switchgear panels and circuit breakers. The contention that customers looked only to the reputation of the designer of the switchgear products and the service provider, not the manufacturer of the product, does not rise above conjecture. Moreover, the careful phrasing of the text giving rise to the Affiliation Factors in the Publications and the Customer Communications readily permits the drawing of an inference that the respondents recognised the relevance and significance for marketing and sales purposes of the source of the manufacturer of the AMS and VEP branded Huatech Products. 120 The extent to which Huatech chose to market the Huatech Products in Australia as GELPAG AMS and GELPAG VEP products may well have diluted Huatech's reputation as a manufacturer of the Huatech Products but it did not diminish the reputation that the AMS and VEP marks had achieved in respect of switchgear panels and circuit breakers in Australia with customers and end users by February 2019. 121 The Respondents' Answers fail to recognise or otherwise acknowledge the fundamentally misleading dimension to the Publications and Customer Communications. By focusing on discrete statements made in the Publications and the Customer Communications and not looking at the combined impact of the content of the Publications and the Customer Communications, the respondents have not answered the case advanced by Huatech. 122 In assessing whether the Representations were conveyed in the Publications and Consumer Communications, I have not found the Respondents' Table or the Respondents' Answers to be of any substantive assistance. 123 Second, I am satisfied that the only use of AMS and VEP in relation to electrical switchgear products in Australia prior to February 2019 were as brand names or types of Huatech-manufactured switchgear panels and circuit breakers. There was no probative evidence that they were used in Australia prior to February 2019 as generic descriptors for "air insulated metal switchgear" and "vacuum embedded poles". 124 Both Dr Rossi and Mr Whitham gave evidence that, by no later than 2010, they were aware that they recognised AMS as the product name and brand for Huatech Switchgear Panels and VEP as the product name and brand for Huatech Circuit Breakers. 125 Although both Mr Sankey and Mr Muguira gave evidence in their affidavits to the effect that AMS and VEP were common industry acronyms, both ultimately accepted in cross-examination that AMS and VEP were only used for Huatech Products and neither was aware of, or able to identify, any other manufacturer that had used those terms for electrical switchgear products. 126 Mr Muguira gave the following evidence: And, although you've mentioned some other products this morning that are not medium-voltage switchgear, do you accept that, at the time you made your affidavit, you were not aware of any other switchgear manufacturer using AMS as the brand of a medium-voltage switchgear panel?---Well, I - I can't recall seeing AMS anywhere on switchgear panels other than the - the POWINS ones - the GELPAG ones. Yes. … When you read through Dr Rossi and Mr Whitham's affidavits, did you see any other vacuum circuit breaker manufacturer use "VEP" as the brand of their product?---Yes. As the type, no. As the brand. Let's - - -?---Well, I don't know if it's a brand or a type. I consider it to be a type, but - - - Well, is Huatech the only manufacturer of those that you reviewed that has used VEP as the type of their vacuum circuit breaker?---Until I got asked to do this job, the only time I've seen VEP is related to GELPAG on the brochure here. I'm not aware - you know, when I saw GELPAG circuit breakers - not aware where they were manufactured - I thought they were German. 127 Similarly, Mr Sankey gave the following evidence: MR MEE: Mr Sankey, you know, don't you, that the type that is listed on Huatech's Type Testing reports from IPH similarly have a type commencing with the three letters AMS or VEP, don't you?---Yes. Yes. And that's because AMS and VEP are Huatech's designated name for its medium-voltage switchgear panels and vacuum circuit breakers respectively?---That's what they've called them, yes. 128 The use by Powins of AMS as a brand name was illustrated in communications that Powins had with its customers in the period between February 2016 and January 2019. 129 Powins referred to the "AMS 22kV switchgear solution", the "22Kv AMS switchgear proposal" and the "22Kv AMS power train and LV control section sheetmetal, of the Huadian/Gelpag 22Kv switchgear" in an offer made to iPower under cover of a letter dated 3 May 2016. References to "AMS switchgear" highlight the use of AMS as a brand rather than as a generic reference to an acronym for "air insulated metalclad switchgear". 130 In an email sent to BHP Billiton (BHP) on 25 July 2018 with respect to a tender, Powins stated: As discussed, please find attached a copy of a letter issued by Huatech confirming POWINS is an authorised distributor of the "AMS" product. 131 In response to a request by Aurecon on 28 November 2018 for advice on a brand and type suitable for a project, Powins responded by email later that day: The product we will be offering is the Powins/Huatech AMS switchgear, commonly known in the industry as "GELPAG". This product is used extensively across BHP, FMG and Rio Tinto sites. I have attached the AMS reference list and the Powins Rio Reference list and the operating manual for the switchgear. 132 Powins' use of VEP as a brand name was also illustrated in communications between Powins and its customers during the period that Powins was a distributor of Huatech Circuit Breakers. 133 On 24 July 2018, PNG Power Ltd sent an email to Powins with a subject line "[EXT]; 11kV Vacuum Circuit Breaker" which included the following request: We have two gas turbines on site. The 11kV generator circuit breakers are GELPAG Vacuum Circuit Breakers. Type VEP12T1225D11P15W. The VCB for one the gas turbines failed to close when in service on the 11/07/18. It was tested in the isolated position and confirmed operational. We would like to enquire for a replacement VCB to restore the gas turbine. … The attachments contain nameplate details of the VCB and schematic drawing of the circuit breaker. 134 Powins responded to PNG Power Ltd by providing a quotation for "the VEP circuit breaker that you have requested". 135 On 25 July 2018, Engenuity Solutions sent an email to Powins with a subject line "Price & availability for repairs and replacement of 11kV VCB (Gelpag)" in which it stated: We are seeking pricing & availability for parts to repair the existing VCB on site and also pricing & availability for a replacement VCB. 136 A photograph of the "nameplate info and damage" was attached to the email. The product was described in the photograph as a "GELPAG Vacuum Circuit Breaker" and the product type was recorded as "VEP12T1225D11P15W". 137 Powins responded later that day to the Engenuity Solutions email: The VEP circuit breaker shown looks as though it has overdriven or jammed and already had a hammer taken to the bent section. We have seen this only a few times with 3200+ units in service, as such we would not suggest fixing in the field. 138 It is readily apparent from these email exchanges that the generic term used for vacuum circuit breakers is VCB and that VEP is the particular product type or branded product being supplied by Powins during this period. 139 Third, any decision by Huatech not to promote their AMS and VEP products in Australia as Huatech products does not preclude it from objecting to other entities claiming that they were the manufacturer of those products. 140 Fourth, the branding of the New Powins Products from February 2019 as GELPAG MSA switchgear panels had an almost self-evident risk of creating confusion in the minds of end-users given the branding of the Huatech Products prior to February 2019 as GELPAG AMS switchgear panels. The association of the Gelpag brand with the Huatech Products prior to the Publications and the Customer Communications is illustrated in an email sent from Powins to RCR Tomlinson dated 20 October 2016, in response to a query about the weight of AMS12 cabinets, in which it was stated: By way of introduction, POWINS are the Australian licensed distributor of the Gelpag Switchgear that you have at site. This Gelpag switchgear is now marketed by POWINS in [sic] as the POWINS AMS switchgear. 141 Fifth, in assessing whether the Representations were conveyed it is necessary to have regard to the documents as a whole, in particular, the juxtaposition of MSA and AMS and the juxtaposition of VEP and VX5, the prominent capitalisation of the letters AMS in describing "air insulated metal switchgear" and the letters VEP in referring to "vacuum embedded poles", and the specific context in which references were made to "Gelpag". 142 Sixth, the attempt to rely on the subsequent provision of type test certificates that would identify the manufacture of the New Powins Products fails to address the extent to which by that time a potential customer may have been induced by the marketing web to acquire the product. 143 Seventh, as Huatech submitted in its reply submissions on some 40 occasions, the evidence of Mr van Wijk, Mr Rauwendaal, Mr Sankey and Mr Brown sought to be relied upon by the respondents to support the contents of the Respondents' Table and the Respondents' Answers, was rejected, in part rejected, limited, in part limited, not read or not read in part. 144 I now turn to consider whether the Representations were conveyed to the extent alleged by Huatech, in each of the Publications and Customer Communications. In undertaking that task I have focused on the Affiliation Factors alleged to be present in each Publication and Customer Communication. As I explain above, I have considered but have not ultimately been assisted by the Respondents' Answers and the Respondents' Table. It is sufficient for present purposes to observe that the respondents seek to contend that none of the Representations were expressly made in, nor could they be inferred from, any of the Publications and Customer Communications.

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Affiliation Factors 145 I am satisfied that the Affiliation Factors, to the extent that they are present in each of the Publications and the Customer Communications, are capable of providing a sound and coherent basis to give rise to the Representations, in the various combinations alleged by Huatech as explained above. 146 Referring to AMS, the use of MSA as an alleged acronym for "Metalclad Switchgear Air insulated" switchgear, the emphasis by the bolding of the letters A, M and S when referring to the Huatech Switchgear Panels as "Automated Metalclad Switchgear", and the bolding and at times, underlining as well, of the letters M, S and A all served to draw a strong connection between the New Powins Switchgear Panels and the Huatech Switchgear Panels. The selection of the same letters for the branding of the New Powins Switchgear Panels was always going to give rise to an inference that the products were the same and that they were produced by the same manufacturer. The cynical bolding of the letters in their alternative combinations AMS and MSA only served to make the drawing of that inference more likely. 147 Similarly, referring to the Huatech Circuit Breakers as the previous "Vacuum Embedded Pole" circuit breakers and bolding the V, E and P and then using the brand "VX5", particularly in the context of statements such as the "GELPAG VX5 circuit breakers and motor controllers are a direct replacement for the GELPAG VEP circuit breakers" was also likely to convey that the VX5 and VEP circuit breakers were iterations or versions of the same product and that they were produced by the same manufacturer. 148 I am satisfied that referring to the installation base of the Huatech Products as "GELPAG" products and the number of such installations in communications concerned with the New Powins Products ("Cite Customer Install Base" and "Cite Total Install Base") conveyed that the New Powins Products are the same as the Huatech Products that had previously been installed in the Australian market. This in turn conveyed an inference that the Huatech Products, at least to the extent that they were branded or referred to as "GELPAG" products, were manufactured by Gelpag GmbH and it held the intellectual property rights to those Huatech Products sold in Australia prior to February 2019. 149 Referring to the "previous switchgear range", the "original GELPAG switchgear released and sold in Australia from 2005-2016" or the "existing GELPAG switchgear installed from 2005" ("Cite Previous Range") in communications in which the New Powins Products were referred to as the "New Gelpag Products" conveyed that the Huatech Products and the New Powins Products were iterations or versions of the same product and that they were produced by the same manufacturer. 150 Stating that the New Products (that is, the New Powins Products) were "identical" or "identical and interchangeable" with the "previous products" ("Identical") unambiguously conveyed that the New Powins Products were the same as the previous products, which in context could only be a reference to the Huatech Products. No other plausible meaning can be given to the word "identical", whether used alone or in combination with "interchangeable". 151 Referring to the New Powins Products as the "New Gelpag Products" and then stating or implying that those products used to be sold as the GELPAG AMS, POWINS AMS or BV2 AMS ("Former Name Link") had the effect of drawing an inescapable link between the New Powins Products and the Huatech Products. A representation that a product "used to be sold" conveys that the same product is now being sold under a different name. 152 Referring to the New Powins Products as the "New Gelpag Products" and stating or implying that these products used to be sold or serviced by Powins or its predecessor business, iPower ("Continuation of Supply"), when in truth the products that used to be sold and serviced by Powins and iPower were the Huatech Products, not the New Powins Products, irresistibly gave rise to an inference that the Huatech Products and the New Powins Products were iterations or versions of the same product and that they were produced by the same manufacturer. 153 Responding to queries from customers concerning the Huatech Products by offering a "GELPAG" new product part and asking the customer to change the part number/description in their system ("Product Switch") would induce a customer into believing that the Huatech Products currently operated by the customer were the same products as the New Powins Products. The drawing of this inference was made more compelling by the use of phrases such as, "As discussed, the GELPAG VX5 circuit breakers and motor controllers are a direct replacement for the GELPAG VEP circuit breakers and motor controllers" in response to a request to a quotation for "the spare GELPAG VX5 circuit Breakers for the existing switchgear 2011/2013 installed". The existing "2011/2013" switchgear could only be a reference to the Powins Switchgear Panels. 154 I am satisfied that stating or implying the Huatech Products were manufactured by Gelpag GmbH ("Gelpag Manufacture") conveyed that the Huatech Products were manufactured by Gelpag GmbH and that it held the intellectual property rights in the Huatech Products sold in Australia prior to February 2019. 155 I am also satisfied that stating or implying that Gelpag GmbH owned the intellectual property rights in the Huatech Products ("Gelpag IP") and the New Gelpag Products (that is the New Powins Products) were based on the design of the Huatech Products ("Upgraded Design") conveyed that it held the intellectual property rights in the Huatech Products sold in Australia prior to February 2019. 156 Stating or implying that the respondents were "authorised" in relation to "existing" products ("R Authority") or had the "sole" authority in relation to existing products" ("R Sole Authority") could in context only be a reference to authority with respect to the Huatech Products installed in Australia prior to February 2019. The "existing products" were referred to as the "GELPAG Switchgear installed from 2005" and the "GELPAG Switchgear, since its introduction to the Australian Market in 2005" by the respondents in Customer Communications in March 2019. 157 Similarly, stating or implying that Huatech had no authority in relation to "existing product" ("Huatech No Authority") and could no longer manufacture "existing product" ("Huatech No Manufacture") in context could also only be a reference to authority with respect to, or the ability to continue to manufacture, the Huatech Products installed in Australia prior to February 2019.

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2020 Features 177 It is convenient to deal collectively with each of the First 2020 Feature, the Second 2020 Feature and the Third 2020 Feature (together, 2020 Features). Each is relevantly identical in terms. The Third 2020 Feature appeared in the same publication as the 2020 Cover Story. Huatech does separately address the 2020 Cover Story. It considers the 2020 Cover Story and the Third 2020 Feature as a single publication for the purposes of identifying Affiliation Factors and Representations alleged to arise from Affiliation Factors. 178 Huatech alleges that each of the 2020 Features conveyed all of the Representations. 179 Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use VEP, Use MSA, Cite Total Install Base, Cite Previous Range, Former Name Affiliation, Continuation of Supply, Gelpag Manufacture, Upgraded Design, R Authority and R Sole Authority. 180 Each of the 2020 Features included the following statements: The POWINS range of MV Switchgear includes the POWINS AMS Air-Insulated Metal-Enclosed Switchgear and the POWINS MSS Solid Dielectric Switchgear. … POWINS are appointed as the only approved service provider for GELPAG switchgear by GELPAG Advanced Technology GmbH in Lampertheim Germany and Xiamen China. … The POWINS AMS and POWINS MSS switchgear are technically detailed in this article. … POWINS AMS12 Metal Clad Air-Insulated Switchgear Installation POWINS MSA Air-Insulated Metal-Clad Switchgear (AMS) Air Insulated with Withdrawable Circuit Breakers and Contactors providing the required visual isolation by withdrawing the device to the isolated position and viewing through window. Earth Switches are viewed by CCTV and also by viewing window. Typically 650mm wide. POWINS AMS - GELPAG MSA - Air Insulated Metal-Enclosed Switchgear … GELPAG is the recognised world leader focusing on energy technology solutions and power distribution switchgear for the present and the future market sectors. Internationally GELPAG has 4000+ panels in service in the Australian Market up to 2020. In 2003, GELPAG developed and type tested a type of withdrawable "Air-Insulated Metalclad Switchgear" (AMS-MSA switchgear) with options for withdrawal Vacuum Embedded Pole Circuit Breakers (VEP-VX5) and Vacuum Embedded Contatcors [sic] (VEC-FC). Marketed in Australia as POWINS AMS12 and POWINS AMS24 MV Switchgear, 12kV and 24kV respectfully [sic]. 181 AMS and MSA are used interchangeably and in close juxtaposition to each other. GELPAG is inextricably linked to both the AMS and MSA switchgears and to the 4,000+ panels in service in Australia. 182 I am therefore satisfied that each of the Use AMS, Use VEP, Use MSA, Cite Total Install Base, Cite Previous Range, Former Name Affiliation, Continuation of Supply, Gelpag Manufacture, Upgraded Design, R Authority and R Sole Authority Affiliation Factors was present in each of the 2020 Features and that the respondents thereby made all of the Representations in the context of each of the 2020 Features read as a whole.

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BHP March 2019 emails 187 Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Ms Miranda Wojtowicz of BHP between 8 March 2019 and 19 March 2019 that was later forwarded to Mr Jarrod Friedman of BHP on 20 March 2019 (BHP March 2019 emails). The email chain commenced on 6 March 2019 as internal correspondence within BHP and initially concerned endorsing a risk assessment to permit Powins to attend site. The email exchanges between Powins and BHP are the only relevant communications for this particular Customer Communication. 188 Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Cite Customer Install Base, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Product Switch, Gelpag Manufacture, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority. 189 The BHP March 2019 emails included the following statements by Mr van Wijk in response to a request from Ms Wojtowicz for Powins' current OEM Gelpag Certificate and "who can service and maintain the Gelpag switchgear installed on site": [W]e have scores of recognized staff that were originally trained by GELPAG technicians and were directly responsible for the GELPAG Switchgear, since its introduction to the Australian Market in 2005. … To remove all confusion, as of 2019, GELPAG Advanced Technology GmbH formalised an exclusive co-operation agreement with POWINS Pty Ltd. .. POWINS Pty Ltd, are the sole owner of the subsidiary GELPAG ELECTRIC Pty Ltd and are the only appointed OEM service and switchgear provider for GELPAG air-insulated, metalclad switchgear. … The announcement of this co-operation identifies POWINS Pty Ltd as the sole GELPAG authority for all OEM GELPAG switchgear sales, spare parts, periodical servicing and mandatory operational testing. … GELPAG Advanced Technology GmbH advise that as our local channel partner, all such enquiries should continue to be directed to POWINS Pty Ltd as their only authorised local representative. … POWINS are the only OEM-GELPAG Switchgear authorised service provider. … GELPAG Advanced Technology GmbH request that you be advised of the following regarding all GELPAG Switchgear as effective from March 2019. 1) POWINS Pty Ltd, are the sole owner of the subsidiary GELPAG ELECTRICS Pty Ltd in Australia and are the only OEM GELPAG Switchgear representative for GELPAG air-insulated, metalclad switchgear. 2) Regarding all existing GELPAG Switchgear installed from 2005, GELPAG Advanced Technology GmbH advise that no agreement or co-operation with Xiamen Huadian Switchgear Co. Ltd or any agent or distributor associated with that entity, neither exist or will be considered. GELPAG Advanced Technology GmbH have also advised the Xiamen Huadian Switchgear Co. Ltd company by formal letter to cease utilising all GELPAG branding of Switchgear as of end February 2019. As such, the Xiamen Huadian Switchgear Co. Ltd can no longer manufacture the GELPAG Switchgear brand internationally and are not authorised, (nor are their appointed agent or distributors) to sell, service or support GELPAG Switchgear of estimated install base of approximately 4000+ panels in Australia. … POWINS … have been servicing this product since 2005. [Emphasis in original.] 190 The email exchange between Mr van Wijk and Ms Wojtowicz was then forwarded to Mr Friedman regarding "servicing product installed product [sic] and supplying new product into the future". 191 The BHP March 2019 emails attached the 2019 Announcement and hyperlinked the March 2019 LinkedIn Post. 192 I am therefore satisfied that each of the Cite Customer Install Base, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Product Switch, Gelpag Manufacture, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority Affiliation Factors were present in the BHP March 2019 emails and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, in the context of the emails read as a whole and the relevant attachment and hyperlink.

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20 March 2019 emails 193 Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, in emails from Mr Rauwendaal to Mr Allan Fogarty and Mr Evan Goodman of Newcrest, Mr John Kouimanis and Mr Geoff Edwards of Ausenco and the Ausenco-Downer JV, Mr Adam Fisher of the AMP Control Group, and Mr David Fouhy and Mr Dominic Clark of Glencore on 20 March 2019 (together, 20 March 2019 emails). 194 Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority. 195 Each of the 20 March 2019 emails included the following statements by Mr van Wijk: GELPAG Advanced Technology GmbH request that you be advised of the following regarding all GELPAG Switchgear as effective from March 2019. 1) POWINS Pty Ltd, are the sole owner of the subsidiary GELPAG ELECTRICS Pty Ltd in Australia and are the only OEM GELPAG Switchgear representative for GELPAG air-insulated, metalclad switchgear. 2) Regarding all existing GELPAG Switchgear installed from 2005, GELPAG Advanced Technology GmbH advise that no agreement or co-operation with Xiamen Huadian Switchgear Co. Ltd or any agent or distributor associated with that entity, neither exist or will be considered. GELPAG Advanced Technology GmbH have also advised the Xiamen Huadian Switchgear Co. Ltd company by formal letter to cease utilising all GELPAG branding of Switchgear as of end February 2019. As such, the Xiamen Huadian Switchgear Co. Ltd can no longer manufacture the GELPAG Switchgear brand internationally and are not authorised, (nor are their appointed agent or distributors) to sell, service or support GELPAG Switchgear of estimated install base of approximately 4000+ panels in Australia. 196 Each of the 20 March 2019 emails attached the 2019 Announcement and hyperlinked the March 2019 LinkedIn Post. 197 I am therefore satisfied that each of the Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority Affiliation Factors were present in each of the 20 March 2019 emails and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, in the context of each of the emails read as a whole and the relevant attachment and hyperlink.

[29]

20 March 2019 phone calls 198 Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, by Mr Rauwendaal in two telephone conversations on 20 March 2019 (20 March 2019 phone calls). Mr Rauwendaal gave evidence of these conversations in his affidavit dated 3 December 2021. 199 Huatech submits that these representations were conveyed by reason of the presence of the Continuation of Supply Affiliation Factor. 200 The first of the 20 March 2019 phone calls included the following statement from Mr Rauwendaal in response to a phone call initiated by Mr Fisher who allegedly said "I was told Powins no longer had an MV switchgear product to sell": We [Powins] have signed up with Gelpag direct now and we still have our product. I will send you an email with further information. 201 The email referred to in the first of the 20 March 2019 phone calls was the email from Mr Rauwendaal to Mr Fisher of the AMP Control Group that was one of the 20 March 2019 emails. 202 The second of the 20 March 2019 phone calls included the following statement from Mr Rauwendaal in response to Mr Fouhy who allegedly said that "[w]e have been told that you do not have access to [MV switchgear products] anymore": [T]hat's not true, let me send you an email. … [Mr Rauwendaal initiated the phone call to David Fouhy to ask whether he had] heard of this bad publicity that Powins cannot sell MV switchgear products. 203 The email referred to in the second of the 20 March 2019 phone calls was the email from Mr Rauwendaal to Mr Fouhy of Glencore that was one of the 20 March 2019 emails. 204 I am therefore satisfied that the Continuation of Supply Affiliation Factor was present in the 20 March 2019 phone calls and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations in the context of the phone calls read as a whole and the 20 March 2019 emails to which it related.

[30]

27 March 2019 email 205 Huatech alleges that all of the Representations were conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Mr Alan Ow of Monadelphous Electrical & Instrumentation Pty Ltd on 27 March 2019 (27 March 2019 email). 206 Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use MSA, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag Manufacture, Gelpag IP, Upgraded Design, R Authority and R Sole Authority. 207 The 27 March 2019 email included the following statements in regards to "POWINS ability to execute and deliver Primary MV Switchgear": As of March 2019 GELPAG Advanced Technology GmbH have formalised an exclusive distributor and channel partner agreement with POWINS Pty Ltd as their exclusive switchgear agent and service provider for all GELPAG switchgear in Australia, Fiji, New Caledonia and PNG. With much confusion in the market place over the last few months this appointment shall ensure POWINS continue to service their existing and future clients with a trusted, quality and established brand of switchgear. GELPAG has returned to the Air-Insulated Metalclad Switchgear market internationally with the conclusion of a three year non-compete clause with Xiamen Haudian [sic] Switchgear expiring in January this year. During the last 3 years (2016 - 2019) of sale GELPAG turned its interests to research and development. The new 2019 suite of GELPAG, MSA series of Air-Insulated Metalclad Switchgear, has again been designed in Germany as was the original GELPAG switchgear released and sold in Australia from 2005-2016. The latest GELPAG MSA Switchgear includes technological advancements of the Vacuum Embedded Pole Circuit Breakers and Vacuum Embedded Contactors. Further all the MSA switchgear is both, retro fitable (for replacement) and extensible (for extension) to the estimated 4,000+ panels installed in the Australian Utilities, Mining and Heavy Industry sectors since its introduction in 2005. All the MSA switchgear and supporting withdrawable devices have been designed, manufactured and type tested to the below stated requirements of IEC 62271 by GELPAG Advanced Technology GmbH Germany. To further solidify the inter-company relationship, POWINS Pty Ltd are now the registered owner of the subsidiary "GELPAG ELECTRICS Pty Ltd" in Australia and therefore the only authorised OEM service and switchgear provider for GELPAG Air-insulated, Metalclad Switchgear, commonly known as GELPAG MSA. For any further information please visit our website or your local contact www.powins.net or www.gelpag.com

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BHP 7 August 2019 email 218 Huatech alleges that each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Mr Duane Elliott of BHP on 7 August 2019 (BHP 7 August 2019 email). 219 Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Cite Customer Install Base, Former Name Affiliation and Continuation of Supply. 220 The BHP 7 August 2019 email included the following statements by Mr van Wijk: All currently employed POWINS staff … have had a long term affiliation with GELPAG since 2005 and were instrumental in releasing the product to the Australian market, through our then employer i.Power Solutions (Lend Lease). … POWINS Pty Ltd was established in December 2014 and during this period have delivered GELPAG product to the market as the POWINS AMS 12/24/40. … POWINS has supplied more than 400 tiers to the market, mostly to tier 1 clients such as yourselves both on the east and west coast of Australia. … This [partnership between Powins and Gelpag GmbH] is not only to strengthen the supply chain for the POWINS AMS switchgear range but to additionally launch the extended range of GELPAG MSS Switchgear. … POWINS are committed to support BHP for current installed and future GELPAG Switchgear. … All of our experts were involved in the design of the 'Australian version' of the GELPAG switchgear since 2005. … The current range of POWINS AMS switchgear is 100% retrofit able with your installed product base. … Since early 2019 GELPAG have been working with POWINS to retest their MSA Product in their new manufacturing facility. 221 The BHP 7 August 2019 email attached the 2019 Announcement and a letter from Gelpag GmbH to Huatech. The March 2019 LinkedIn Post was also hyperlinked in the BHP 7 August 2019 email. 222 I am therefore satisfied that each of the Use AMS, Use MSA, Cite Customer Install Base, Former Name Affiliation and Continuation of Supply factors was present in the BHP 7 August 2019 email and that the respondents thereby made each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations in the context of the email read as a whole and the relevant attachments and the hyperlink.

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OFI Group November 2019 emails 237 Huatech alleges that all of the Representations were conveyed by Powins, or alternatively the respondents, in the email exchange between Mr Scott Wardale of Powins and Mr Atif Sharif of OFI Group between 14 November 2019 and 15 November 2019 (OFI Group November 2019 emails). 238 Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Cite Total Install Base, Cite Previous Range, Identical, Continuation of Supply, Gelpag Manufacture, Gelpag IP and Upgraded Design. 239 The OFI Group November 2019 emails included the following statements by Mr Wardale: [O]ur General Manager … has had multiple meetings with FMG about the continuation of supply, the origins and interchangeability of our Gelpag product. … Gelpag as the originator of the GELPAG AMS switchgear design commencing supply in 2006 internationally, the 2019 suite of GELPAG MSA technology switchgear series, has been enhanced by use of the new epoxy materials Gelpag has developed. The enhanced switchgear design continues to be both, retro fitable (for replacement) and extensible (for extension) to the estimated 4,000+ panels installed in the Australian Mining and Heavy Industry sectors since its introduction in 2005. The latest GELPAG MSA technological advancements of Vacuum Embedded Pole Circuit Breakers and Vacuum Embedded Contractors is included in the new GELPAG switchgear range. All the MSA switchgear and supporting withdrawable devices offered for this project have been designed, manufactured and type tested … by GELPAG Advanced Technology GmbH. 240 Mr Wardale also confirmed to Dr Sharif that the use of Gelpag switchgear was the same switchgear as was previously offered for the "HOP001/3/7/8" and that the type test certificates and other compliance are exactly the same. The type test certificates were also attached. 241 The OFI Group November 2019 emails attached the 2019 Announcement and a letter to Huatech. 242 I am therefore satisfied that each of the Use AMS, Use MSA, Cite Total Install Base, Cite Previous Range, Identical, Continuation of Supply, Gelpag Manufacture, Gelpag IP and Upgraded Design Affiliation Factors was present in the OFI Group November 2019 emails and that the respondents thereby made all of the Representations in the context of the emails read as a whole and the relevant attachments.

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George Fisher Mine 2019 quotations 293 Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, in the quotation and subsequent revisions provided by Mr Rauwendaal to Mr Danny Baccari of George Fisher Mine on 18 July 2019, 19 September 2019 and 4 November 2019 respectively (George Fisher Mine 2019 quotations). It is convenient to address these communications together as they have substantially similar content. 294 Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Emphasise A M S, Former Name Affiliation, Continuation of Supply, R Authority and R Sole Authority. 295 The George Fisher Mine 2019 quotations included the following statements by Mr Rauwendaal: Advise - GELPAG MSA Switchgear - POWINS AMS Switchgear - (Air Insulated Metalclad Switchgear) We advise that from 1st March 2019 GELPAG Advanced Technology GmbH has formed an exclusive co-operation agreement with POWINS Pty Ltd for its GELPAG Air Insulated Metal Clad Switchgear and other technologies. POWINS are the exclusive agent of GELPAG in Australia and its surrounding regions and are appointed as the only approved service provider for GELPAG switchgear by GELPAG Advanced Technology GmbH. All service, engineering assistance, training and spare parts associated is available from POWINS. … [W]e advise that the employee's [sic] of POWINS in QLD and WA offices and factories were previously in the employ of i.Power Solution . Connec, Lend Lease, and as such are intimate with every installation of i.Power Solutions BV2 switchgear as it was branded at that time. … POWINS employees are trained and capable to assist with all historical installations of the i.Power Solutions BV2 (AMS) switchgear at all site across Australia. [Emphasis in original.] 296 I am therefore satisfied that each of the Use AMS, Use MSA, Emphasise A M S, Former Name Affiliation, Continuation of Supply, R Authority and R Sole Authority Affiliation Factors was present in the George Fisher Mine 2019 quotations and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations in the context of the quotations read as a whole.

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Newcrest 2019 emails 297 Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, in the email exchanges between Mr Rauwendaal and Mr Goodman, Mr Wayne Jaques and Mr Fogarty between 2 July 2019 and 19 July 2019 (Newcrest 2019 emails). It is convenient to deal collectively with these email exchanges as they form part of the same email chain and contain substantially similar content. 298 Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Cite Customer Install Base, R Authority and R Sole Authority. 299 The Newcrest 2019 emails included the following statements by Mr Rauwendaal: As displayed by the attached notice, POWINS is the exclusive distributor of the GELPAG MV switchgear in Australia and surrounding regions, as such we wish to raise this to your attention so that you are supplied with 'GELPAG' branded and manufactured switchgear and not another industry brand. I write this letter pro-actively as POWINS has recently become aware of 'others' marketing that they sell GELPAG switchgear, and this is just not true or correct. … I bring this to your attention so that you know what to ask, so that you receive the GELPAG switchgear for your site, as you already have a large quantity of GELPAG switchgear installed on your site. 300 The second of the Newcrest 2019 emails included a statement by Mr Rauwendaal in response to a request from Mr Fogarty to forward the email chain directly to an entity described as "Ampcontrol": "Feel free to distribute at your will". 301 The Newcrest 2019 emails attached the 2019 Announcement. 302 I am therefore satisfied that each of the Cite Customer Install Base, R Authority and R Sole Authority Affiliation Factors was present in the Newcrest 2019 emails and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations in the context of the emails read as a whole and the relevant attachments.

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Mount Isa Mines quotations 307 Huatech alleges that each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations was conveyed by Powins, or alternatively the respondents, in the quotation and subsequent revision from Mr Rauwendaal of Powins to Mr Michael Mabaleka and Ms Andrea Fakos of Mount Isa Mines on 4 October 2019 and 22 May 2020 (Mount Isa Mines quotations). It is convenient to deal collectively with these communications as they contain substantially similar content. 308 Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Cite Customer Install Base, Identical and Continuation of Supply. 309 The Mount Isa Mines quotations included the following statements by Mr Rauwendaal to Mr Mabaleka and Ms Fakos regarding Powins' quotation for the supply of equipment, substation structure and 3.3kV switchboard 11L S60 Substation: POWINS is the distributor license in Australian [sic] for Gelpag switchgear being the POWINS AMS 12kV as offered herein. … This proposal includes the following as a turnkey 3.3kV Switchgear electrical design solution for Mount Isa Mines. • MV switchgear to be POWINS AMS12 withdrawable name plate rated as 3.6kV Voltage • Supply of 11 panels 3.3kV rated POWINS AMS12 switchboard rated IP4X … [The POWINS AMS12 - 3.3kV switchgear] is installed extensively at Mount Isa Mines operations. Refer to the attached supporting document which details the sites, projects and quantity of switchgear installed. Please reference "POWINS AMS 12 - Install base at MIM 2016" regarding the 113 panels at MIM. The POWINS AMS12 is identical, and interchangeable with the Gelpag / Huadian switchgear already delivered over past years to Mount Isa Mines operations. 310 I am therefore satisfied that each of the Use AMS, Cite Customer Install Base, Identical and Continuation of Supply Affiliation Factors was present in each of the Mount Isa Mines quotations and that the respondents thereby made each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations in the context of each of the quotations read as a whole.

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2019/2020 quotations 311 Huatech alleges that all of the Representations were conveyed by Powins, or alternatively the respondents, in the quotations and subsequent revisions provided by Mr Rauwendaal to each of Mr Ian Speziali of Tully Sugar Limited, Mr Chris Chen of Newcrest Cadia, Mr Farmer of iPower, "Alex" of Ernest Henry Mine and Mr Do Pham of Controls Engineering Australia between 26 August 2019 and 11 December 2020 (2019/2020 quotations). It is convenient to deal collectively with these communications as they contain substantially similar content. 312 Huatech submits that the Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use VEP, Use MSA, Emphasise A M S, Emphasise V E P, Emphasise M S A, Cite Total Install Base, Cite Previous Range, Upgraded Design, R Authority and R Sole Authority. 313 Each of the 2019/2020 quotations included the following statements by Mr Rauwendaal to each of the tenderees regarding Powins' quotations for various projects involving the supply of "POWINS AMS Medium Voltage Switchgear" or "GELPAG Circuit Breaker Upgrade VX5 Vacuum Embedded Pole 31.5kA": Our offer is for the GELPAG MSA / POWINS AMS 12 Air Insulated Metalclad Switchgear. … [Beneath the heading "GELPAG MSA Germany / POWINS AMS Australia - Exclusive agreement":] In 2019 GELPAG Advanced Technology GmbH formalised an exclusive co-operation agreement with POWINS Pty Ltd who are the sole owner of the subsidiary GELPAH ELECTRICS Pty Ltd in Australia. … POWINS and [sic] are the only appointed OEM service and switchgear provider for GELPAG air-insulated, metalclad switchgear in Australian [sic] and surrounding regions. … [Powins] are directly responsible for the manufacture, installation and operational life servicing of GELPAG MSA Switchgear, marketed in Australian [sic] as POWINS AMS rated at 12kV 24kV and 40.5kV. … The announcement of this co-operation identifies POWINS Pty Ltd as the sole GELPAG authority for all OEM GELPAG switchgear sales, spare parts, periodical servicing and mandatory operational testing. … [Beneath the heading "2019 GELPAG MSA - Interchangeable with previous switchgear 2005-2018":] The 2019 technology advanced GELPAG MSA switchgear and associated GELPAG VX5 vacuum circuit breakers and GELPAG fused vacuum contractors are 100% exchangeable and extendable to the previous switchgear range (2005-2018), allowing Clients the ability to maintain and extend existing infrastructure in a cost effective manner. … [Beneath the heading "GELPAG MSA - Metalclad Switchgear Air insulated - Product overview":] … The POWINS 'safety by design' focus has resulted in the 2019 release of an 'evolution of MV switchgear design' incorporating technology advances and improved safety features with our long-term partner GELPAG Advanced Technology GmbH, established in Germany in 2003. … The 2019 technology advanced GELPAG MSA switchgear and associated VX5 vacuum circuit breakers are 100% exchangeable and extendable to the previous switchgear range (2005-2018), allowing Clients the ability to maintain and extend existing infrastructure in a cost effective manner. … This offer includes for the supply of the fully type tested GELPAH [sic] MSA / POWINS AMS series of medium voltage, indoor switchgear. The GELPAG / POWINS factor assembled Air insulated, Metal-clad, indoor Switchgear is equipped with cassette type fully withdrawable, vacuum circuit breakers or contactors. … Beside the cassette type withdrawable VX5 embedded pole vacuum circuit breaker, POWINS AMS switchgear can also be equipped with fused-contactors, bus-earth truck, VT trucks as required. … [Beneath the heading "2019 technology release - GELPAG VX5 Circuit Breaker":] GELPAG VX5 - Vacuum Circuit Breakers are fully type tested and compliant with [Australian and IEC standards]. … 100% compatible with the previous Vacuum Embedded Pole circuit breaker range (2005-2018). [Emphasis in original.] 314 Each of the 2019/2020 quotations included throughout various references to "POWINS GELPAG MSA", "2019 GELPAG VX5 vacuum circuit breaker" or variations thereof. 315 The 2019/2020 quotations for Ernest Henry Mine also included the following statements by Mr Rauwendaal: Thank you for the opportunity to submit our quotation for the spare GELPAG VX5 circuit Breakers for the existing switchgear 2011/2013 installed. … As discussed the GELPAG VX5 circuit breakers and motor controllers are a direct replacement for the GELPAG VEP circuit breakers and motor controllers. 316 I am therefore satisfied that each of the Use AMS, Use VEP, Use MSA, Emphasise A M S, Emphasise V E P, Emphasise M S A, Cite Total Install Base, Cite Previous Range, Upgraded Design, R Authority and R Sole Authority Affiliation Factors was present in each of the 2019/2020 quotations and that the respondents thereby made each of the Representations in the context of each of the quotations read as a whole.

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Submissions 327 Huatech submits that the admissions made by the respondents in paragraphs 24 and 25 of their defence are sufficient to demonstrate that the Same Product and Origin Representations were misleading. 328 Huatech submits that the Gelpag Representation was misleading and thus was a misrepresentation, by reason of the following matters: (a) Huatech has always been the manufacturer of the Huatech Products; and (b) the role of Gelpag GmbH was limited to arranging type testing, it did not give rise to any intellectual property rights and, even if it had, any intellectual property rights would be owned by Huatech pursuant to the terms of the agreements between Huatech and Gelpag GmbH. 329 Huatech submits that the Existing Products Affiliation Representation was misleading and thus was a misrepresentation, by reason of the following additional matters: (a) Powins was never appointed an exclusive distributor of the Huatech Products and therefore it never had the sole authority to sell or provide servicing, spare parts and operational testing for the Huatech Products; (b) from the termination of the 2016 Distribution Agreement on 1 February 2019, Powins had no authority or ability to sell the Huatech Products or provide spare parts for them; (c) Powins did not have any contractual responsibilities for after-sales service within the warranty period for the Huatech Switchgear Panels that it sold pursuant to the 2016 Distribution Agreement; and (d) Gelpag AU was never authorised by Huatech to sell, or provide servicing, spare parts or operational testing for, the Huatech Products. 330 The respondents do not directly respond to Huatech's contentions that each of the Representations was misleading. Rather, they appear to respond to those contentions by making the following submissions that might more accurately be characterised as submissions disputing that the Representations were conveyed rather than whether if conveyed, they were misleading. 331 First, the respondents advance a number of propositions concerning the extent of their historical connection with "Gelpag" but in doing so refer generically to "Gelpag" rather than distinguishing between Gelpag GmbH and Gelpag AU. 332 In summary, the respondents contend that they had had a close historical connection to "Gelpag" as a result of Mr Sher's deep connection and relationship with Gelpag, the designs for the Huatech Products were deficient and, without the technical expertise provided by Gelpag GmbH they would not have been ready for sale, the type testing and development of the Huatech Products was facilitated by Gelpag GmbH, and Gelpag GmbH was instrumental in the development and "betterment" of the Huatech Products. 333 In the course of his oral closing submissions, Mr Cooke of counsel, who appeared for the respondents, acknowledged that the references to the installation of the 4,000 "Gelpag panels" in Australia was "probably the most problematic" issue that the respondents had to deal with and that it "multiplies itself out through various different documents". 334 Mr Cooke ultimately submitted in an attempt to answer this aspect of Huatech's case: Could I ask your Honour to take a different view and look at it this way: the panels that were distributed to the parties in Australia as reflected by the client lists were branded GELPAG and known within Australia as GELPAG, because that's the way they were put forward to the market. So the market for Huatech is in fact the market to sell the POWINS. And it can't be that because the likes of BHP and Fortescue and so on are purchasing a service from a company like my client and not a particular manufactured product. So the design element of - or the name that has been attached and the reputation that has been built in Australia is a reputation of GELPAG quality, and we've - we're marketing that, or we're representing that it's that brand that's still attached to our new panels that was attached to the old panels. So I say there is no actual manufacturing representation in terms of the 4000 panels. This is - sorry, your Honour, I lost you. … MR COOKE: I accept - I accept that, your Honour. And I will have one last go at it, and then I will move on. But in terms of GELPAG and the installation, I think I've said there's two planks to it. So there's the personnel side, and then the design side to it, and it has always been the quality that is being put forward. I think that's probably as high as I can put it. 335 Second, the respondents submit that the usage of AMS as an acronym arose to describe the characteristics of switchgear, specifically that it was "air-insulated" and "metal clad". They submit that the use of AMS is not directly referrable to any one company or product. Further, they submit that any attempt to determine the origin of the acronym would ultimately be "uncertain with the market" and the acronym AMS has been used by companies across the global market to refer to a product that has been made using "air-insulated metal-clad switchgear". They submit that the use of AMS within Australia was as an acronym in marketing material for the type of switchgear and not as a product brand for Huatech, which they contend had "no direct association to the marketed product from 2007 to 2016". 336 Third, the respondents rely on definitions of markets in antitrust and taxation contexts to contend that the only relationship between the parties was as sellers and buyers and therefore any Australian market for AMS switchgear panels could only arise by way of the respondents purchasing switchgear panels from Huatech. Thus, the respondents submit, the Court must accept that, at the time that they purchased switchgear panels from Huatech with the intent to distribute it to end users, Huatech's presence in any later transaction "was transformed to a point of non-existence" as Huatech "never had any physical role" in the respondents' later sale of the "manufactured goods" to third-party users. 337 The respondents submit that they, not Huatech, are the seller of services and products in Australia. They submit that they are not selling a product shipped directly from China, rather they are selling switchgear solutions and services.

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Consideration 338 It is convenient to address, first, whether the Same Products and Origin Representations, if made, are misleading. 339 Huatech pleads in paragraphs 24 and 25 of the 2FASOC: 24. From a date currently unknown to the Applicant, but from no later than March 2019, the First Respondent has and, alternatively, the Respondents have, offered for sale and sold, in Australia: (a) switchgear panel products, including medium voltage switchgear panels (New Powins Switchgear Panels); and (b) vacuum circuit breakers (New Powins Circuit Breakers). 25. The New Powins Switchgear Panels and New Powins Circuit Breakers are: (a) not manufactured by the Applicant; (b) not the same products as the Huatech Switchgear Panels and Huatech Circuit Breakers respectively; (c) not the Type Tested Products; and (d) not otherwise endorsed by or affiliated with the Applicant. 340 In response to these allegations, the respondents plead in their further amended defence: 24. The First Respondent admits the allegations in paragraph 24 of the Further Amended Statement of Claim but says that: a. the Applicant's Switchgear Panel products were designed by Gelpag GmbH pursuant to the 2005 Gelpag-Huadian Agreement. b. the Applicant's Circuit Breaker products were designed by Gelpag GmbH pursuant to the 2005 Gelpag-Huadian Agreement. c. on or about 8 March 2019, the First Respondent entered into a Distribution Agreement with Gelpag GmbH ("2019 Gelpag-Powins Distribution Agreement") whereby the First Respondent was appointed as an exclusive distributor in Australia of Gelpag GmbH's products, which included: i. switchgear panel products, including medium voltage switchgear panels ("Gelpag GmbH Switchgear Panels"); and ii. vacuum circuit breakers ("Gelpag GmbH Circuit Breakers"). d. as and from March 2019 onwards, and pursuant to the 2019 Gelpag-Powins Distribution Agreement, the First Respondent has offered for sale and sold in Australia the Gelpag GmbH Switchgear Panels and Gelpag GmbH Circuit Breakers. e. the Applicant's Switchgear Panel products sold by the Applicant's distributors within Australia are based on the designs initially developed by Gelpag GmbH, as pleaded in paragraph (a) above, and have not been further developed by the Applicant to improve the efficiency and reliability of the design and product. f. the design of the Gelpag GmbH Switchgear Panels and the products themselves are more efficient and superior in all respects to the Applicant's Switchgear Panels. g. the Applicant's Circuit Breaker products sold by the Applicant's distributors within Australia are based on the designs initially developed by Gelpag GmbH, as pleaded in paragraph (b) above, and have not been further developed by the Applicant to improve the efficiency and reliability of the design and product. h. the design of the Gelpag GmbH Circuit Breakers and the products themselves are more efficient and superior in all respects to the Applicant's Circuit Breakers. 24A. The Second Respondent denies the allegations in paragraph 24 of the Further Amended Statement of Claim insofar as they relate to the Second Respondent because they are untrue. 25. As to the allegations in paragraph 25 of the Further Amended Statement of Claim, the First Respondent: a. admits the allegations insofar as they relate to the New Powins Switchgear Panels and New Powins Circuit Breakers; and b. further states that the Gelpag GmbH Switchgear Panels and Gelpag GmbH Circuit Breakers are: i. manufactured by Gelpag GmbH; ii. not the same products as the Huatech Switchgear Panels and Huatech Circuit Breakers respectively; iii. type tested by Gelpag GmbH and are fully compliant with the Australian Standard IEC62271 for safety of personnel and safe operation; and iv. endorsed and affiliated with Gelpag GmbH and not the Applicant. c. the Switchgear Panels and Circuit Breakers now being sold by the respondents are superior and more efficient for those reasons pleaded in paragraph 24 above. 25A. The Second Respondent denies the allegations in paragraph 25 of the Further Amended Statement of Claim insofar as they relate to the Second Respondent because they are untrue. 341 It must follow from the admissions made and matters stated in paragraphs 24 and 25 of the further amended defence that at least Powins accepts that the New Powins Products are not the same as the Huatech Products, they are not manufactured by Huatech and they are not otherwise endorsed by or affiliated with Huatech. In any event, these were matters that were never disputed by the respondents in the course of the hearing. The denials made by Gelpag AU in paragraphs 24A and 25A must in context have been denials of the allegation that Gelpag AU had offered for sale and sold the New Powins Products in Australia. 342 I am therefore satisfied that, to the extent that they were conveyed, each of the Same Product and Origin Representations was a misrepresentation. The New Powins Products were not the same product, nor an updated model or version of, the Huatech Products and they did not originate from the same manufacturer as the Huatech Products. 343 The historical connection, acronym and market contentions advanced by the respondents do not cast any relevant doubt on the fundamentally misleading nature of the Same Product and Origin Representations. I accept, however, that the market contentions, at a general and not antitrust level, are relevant to the issue of the extent of any reputation that Huatech might have in the Australian market for end users and customers. 344 The Gelpag Representation was confined to a representation that "Gelpag" was the manufacturer of the Huatech Products and the owner of the intellectual property rights of the Huatech Products sold in Australia between 2005 and 2018. 345 Given the admissions made in paragraphs 24 and 25 of the further amended defence, on no view, and nor did the respondents suggest to the contrary in their submissions, was Gelpag GmbH the manufacturer of the Huatech Products. Further, given that Gelpag AU was not even incorporated until 15 January 2019, if made, the Gelpag Representation was manifestly false with respect to Gelpag AU. 346 Nor can the disputed evidence as to the extent of any involvement by Gelpag GmbH in the design and development of the Huatech Products, given the express provisions of the agreements that Huatech entered into with Gelpag GmbH, be relied upon to establish that "Gelpag" owned the intellectual property rights in the Huatech Products. 347 Article 4 of the Technical Cooperation Agreement between Huatech (HD) and Gelpag GmbH (GELPAG) dated 5 January 2003, that relevantly extended to the Huatech Products, provided: The intellectual property rights of the above products developed and updated design by GELPAG under this agreement belong to HD fully. GELPAG can't use or authorize others to use the design of the product in any way, without the prior express written consent of HD. GELPAG should promise that intellectual property rights of all the products and designs should have no defect, and there's no case that any the third party owns it before. Or else GELPAG should refund all fees taken from HD, and compensate all losses of HD. After the performance of this agreement, GELPAG should not do the same or analogous development and design works for the third party in 3 years. GELPAG should submit all the interrelated design drawings of the products in this agreement to HD whether in hard copies or soft copies. 348 The Existing Products Affiliation Representation is concerned with whether the respondents had the sole authority or alternatively the authority of the manufacturer of the Huatech Products to sell or provide servicing, spare parts and operational testing for those products. 349 It was not alleged, and nor was there any evidence to suggest, that the respondents had the sole authority of Huatech to sell or provide servicing, spare parts and operational testing for the Huatech Products. To the extent that a representation was conveyed to that effect, it was a misleading and false representation. 350 Further, given the absence of any contractual entitlement of Powins beyond the termination of the 2016 Distribution Agreement to sell the Huatech Products, to procure spare parts from Huatech or provide servicing and operational testing and the absence of any contractual entitlement of Gelpag AU to do so at any time, to the extent that a representation was conveyed to the effect that the respondents did have such authority, it was a misleading and false representation. It may have been the case that Powins was not precluded from providing servicing and type testing of Huatech Products that it had distributed pursuant to its former contractual arrangements with Huatech but that does not carry with it any implication that it was authorised by Huatech to do so.

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Consideration 355 I have concluded above that the Representations were made by the respondents in the Publications and Customer Communications and that each was false or misleading. 356 The respondents admit that the impugned conduct occurred in trade or commerce in connection with the supply or possible supply of goods or in connection with the promotion of the supply or sale of goods. 357 I am therefore satisfied that the respondents engaged in conduct that was misleading or deceptive or likely to mislead or deceive by making each of the Representations, to the extent that I have found those Representations were made in the Publications and Consumer Communications. 358 I am satisfied that in making the Switchgear Origin Representation, the respondents represented that the New Powins Switchgear Panels originated from the same manufacturer as the Huatech Products and thereby the respondents made a false or misleading representation, as to at least: (a) the composition, style and model of the New Powins Switchgear Panels, in contravention of s 29(1)(a) of the ACL; (b) the sponsorship and approval of Huatech regarding the New Powins Switchgear Panels, in contravention of s 29(1)(g) of the ACL; and (c) the respondents having the approval of and an affiliation with Huatech, in contravention of s 29(1)(h) of the ACL. 359 I am satisfied that in making the Switchgear Same Product Representation, the respondents represented that the New Powins Switchgear Panels were the same products as, or an updated model or version of, the Huatech Switchgear Panels and thereby the respondents made a false or misleading representation, as to: (a) the standard, quality, value, grade, composition, style, model or history of the New Powins Products, in contravention of s 29(1)(a) of the ACL; (b) the sponsorship or approval of Huatech, performance characteristics, accessories, uses and benefits of the New Powins Products, in contravention of s 29(1)(g) of the ACL; and (c) the respondents having the sponsorship, approval of or an affiliation with Huatech, in contravention of s 29(1)(h) of the ACL 360 I am satisfied that in making the Circuit Breaker Origin Representation, the respondents represented that the New Powins Circuit Breakers originated from the same manufacturer as the Huatech Circuit Breakers and thereby the respondents made a false or misleading representation, as to at least: (a) the composition, style and model of the New Powins Circuit Breakers, in contravention of s 29(1)(a) of the ACL; (b) the sponsorship and approval of Huatech for the New Powins Circuit Breakers, in contravention of s 29(1)(g) of the ACL; and (c) the respondents having the approval of and an affiliation with Huatech, in contravention of s 29(1)(h) of the ACL. 361 I am satisfied that in making the Circuit Breaker Same Product Representation, the respondents represented that the New Powins Circuit Breaker were the same products as, or an updated model or version of, the Huatech Circuit Breaker and thereby the respondents made a false or misleading representation, as to: (a) the standard, quality, value, grade, composition, style or model of the New Powins Circuit Breaker, in contravention of s 29(1)(a) of the ACL; (b) the sponsorship or approval of Huatech, the performance characteristics, accessories, uses and benefits of the New Powins Circuit Breaker, in contravention of s 29(1)(g) of the ACL; and (c) the respondents having the sponsorship and approval of or an affiliation with Huatech, in contravention of s 29(1)(h) of the ACL. 362 I am satisfied that by making the Gelpag Representation, the respondents represented that Gelpag GmbH was the manufacturer and further, or alternatively, the owner of the intellectual property rights in the Huatech Products and thereby the respondents made a false or misleading representation, as to at least: (a) the model or history of the New Powins Products, in contravention of s 29(1)(a) of the ACL; (b) the sponsorship or approval of Huatech, the performance characteristics, accessories, uses and benefits of the New Powins Products, in contravention of s 29(1)(g) of the ACL; and (c) the respondents having the sponsorship, approval of or an affiliation with Huatech, in contravention of s 29(1)(h) of the ACL. 363 I am satisfied that by making the Existing Products Affiliation Representation, the respondents represented that they had the sole authority or, alternatively, authority of the manufacturer of the Huatech Products already installed in Australia, to sell, or provide servicing, spare parts and operator testing for, all those products and thereby the respondents made a false or misleading representation as to the respondents having the sponsorship, approval of or an affiliation with Huatech, in contravention of s 29(1)(h) of the ACL. The Existing Products Affiliation Representation was not a representation as to the quality or characteristics of the New Powins Products, and therefore the making of the representation does not give rise to any contravention of s 29(1)(a) or (g) of the ACL.

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Respondents 367 The respondents submit that Gelpag AU was instrumental to the development and improvement of the Huatech Products, and that what Huatech supplied was merely one component of many making up a final POWINS AMS complete or functioning product. The respondents submit that POWINS AMS was used to market the product and associated client services. 368 The respondents submit that the New Powins Products had design and operational improvements and advancements compared with the Huatech Products. 369 The respondents submit that in about 2005, Gelpag GmbH permitted Huatech and its local distributors to use the trade mark GELPAG under licence to market and sell the "components" manufactured by Huatech in the international market, that GELPAG remains a registered trademark owned by Gelpag GmbH and the respondents have been permitted to use this trademark in Australia. The respondents state that Huatech desired to use the brand GELPAG on its products up until the termination of their relationship in February 2019, presumably as a result of the goodwill established in the brand by Gelpag GmbH. 370 The respondents submit that the mark BV2 AMS was used by iPower to describe their switchgear products and that the mark BV was previously used by iPower to describe the completed switchgear solution that they developed using components sourced from manufacturers other than Huatech. Further, that the mark BV2 was used to denote a new generation of switchgear. 371 The respondents submit that the mark GELPAG, not Huatech, has been branded on the allegedly installed 4,000-plus panels Australia-wide, and that this is indicative of a substantial reputation in the Australian market attributable to "Gelpag", not Huatech. They submit that Huatech chose over the years to use the GELPAG branding via its distributors, to establish and market its switchgear panel and circuit breaker products. 372 The respondents submit that AMS can be understood as an acronym for "air insulated metal clad switchgear". They submit that usage of AMS as an acronym arose as a means of referring to the characteristics of switchgear, specifically that the switchgear was "air insulated" and "metal clad". Such technology was developed in part by German designers who then used the acronym to refer to the specific characteristics of the products. They contend that the acronym has continued to be used globally to refer to switchgear that possess the same qualities as the technology originally developed within Germany. Consequently, they say Huatech cannot succeed in a claim that relied on a reputation in AMS as an indicium of trade origin to switchgear.

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Consideration 373 I am satisfied that each of the three elements necessary to establish passing off with respect to the AMS and VEP marks have been demonstrated in this case. 374 The evidence of the industry experts of both Huatech and the respondents establishes that the Huatech Products were the only switchgear panels sold in Australia with the AMS mark and the only vacuum circuit breakers sold with the VEP mark. This evidence was corroborated by the extent to which customers and potential customers of the respondents referred to the "BV2-AMS-12", "POWINS AMS12 MV Switchgear", "VEP12T0625D11F" and "AMS12/24/40.5 Gelpag switchgear". 375 I am satisfied that the AMS and VEP marks had acquired a significant reputation as a source of manufacturer of switchgear panels and circuit breakers by February 2019 with both purchasers and end users. 376 The evidence is less compelling on the question of whether Huatech itself had acquired a significant reputation by February 2019 with purchasers and end users as a source of manufacture of switchgear panels and circuit breakers. The promotion and branding of the Huatech Products as Gelpag AMS and Gelpag VEP products, or as BV2, Powins and Leistung Energie AMS or VEP products, significantly diminished the potential for Huatech to establish that it had a significant reputation as a source of manufacturer of switchgear panels and circuit breakers in Australia. Further, that the functional dimension to the market for the sale of the Huatech Products in Australia had the consequence that Powins and other distributors engaged by Huatech were interposed between Huatech and end users and customers, further diminished that potential. End users and customers dealt with Powins and Leistung Energie, not with Huatech. 377 Although each of the industry witnesses recognised Huatech as the manufacturer of the Huatech Products, the emphasis on "Gelpag" and a German affiliation in Powins' communications with its customers combined with the Gelpag, Powins and Leistung Energie, rather than Huatech, branding on the 4,000-plus Huatech Switchgear Panels installed in Australia, precluded Huatech from having a substantial reputation in the Australian market as a manufacturer of electronic switchgear products. 378 I accept that a not insignificant number of customers and end users were aware that Huatech was the manufacturer of the Huatech Products but I am not satisfied that the evidence of the industry experts and the 18 email communications with customers identified by Huatech in their closing submissions is sufficient to establish that Huatech had acquired a significant reputation as a manufacturer of switchgear panels and circuit breakers with customers and end users in Australia by February 2019. 379 Third, that the AMS and VEP marks had acquired a significant reputation as a source of manufacturer of switchgear panels and circuit breakers by February 2019 with both purchasers and end users is discrete from and does not depend upon any finding that purchasers and end users in Australia were aware that the Huatech Products bearing the AMS and VEP marks were manufactured by Huatech. 380 The relevant reputation was not the reputation that the AMS and VEP marks may have had with Powins but rather the reputation that the marks had acquired with customers and end users. The assembly by Powins of the Huatech Switchgear Panels and Huatech Circuit Breakers and the provision by the respondents of a complete electronic switchgear solution to their customers does not relevantly diminish the reputation of the AMS and VEP marks with customers and end users. The critical issue is whether the product is recognised by the indicia in suit. In this case I am satisfied that the AMS and VEP marks were recognised as indicia of a source of manufacture by customers and end users of the principal components of the "solutions" provided by Powins. 381 Fourth, for the reasons explained above, I am satisfied that the respondents made each of the Representations in the Publications and the Customer Communications and that each of the Representations constituted a misrepresentation that was likely to lead the public to believe that the New Powins Products were products of the manufacturer or supplier of the Huatech Products. 382 Fifth, I am satisfied that I am entitled to infer from the significant reputation that the AMS and VEP marks had acquired by February 2019 with both purchasers and end users with respect to switchgear panels and circuit breakers and the making of the Representations that Huatech, as the manufacturer of the Huatech Products, has or is likely to have suffered loss and damage. 383 I am therefore satisfied that in making the Representations in the Publications and the Customer Communications, the respondents have in the period since at least 27 February 2019: (a) passed off the New Powins Products as those of, or as being associated with, the manufacturer of the Huatech Products or the business or goods provided by that manufacturer; and (b) passed themselves or their businesses off as being associated with the manufacturer of the Huatech Products or the business or goods provided by that manufacturer or having its sponsorship, licence or approval.

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Legal Principles 384 Section 120(1) of the Trade Marks Act 1995 (Cth) (TM Act) provides that: 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. 385 Section 122(1) of the TM Act relevantly provides that: (1) In spite of section 120, a person does not infringe a registered trade mark when: … (b) the person uses a sign in good faith to indicate: (i) the kind, quality, quantity, intended purpose, value geographical original, or some other characteristic, of goods or services; or (ii) the time of production of goods or of the rendering of services; or (c) the person uses the trade mark in good faith to indicate the intended purpose of goods (in particular as accessories or spare parts) or services; or … (f) the court is of the opinion that the person would obtain registration of the trade mark in his or her name if the person were to apply for it; or (fa) both: (i) the person uses a trade mark that is substantially identical with, or deceptively similar to, the first-mentioned trade mark; and (ii) the court is of the opinion that the person would obtain registration of the substantially identical or deceptively similar trade mark in his or her name if the person were to apply for it … 386 The approach to determining whether two marks are substantially identical and whether they are deceptively similar is different. In considering whether marks are substantially identical they should be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered trademark and the total impression of resemblance or dissimilarity that emerges from the comparison; whether there is substantial identity is a question of fact: Allergan at [164]-[165] (Stewart J). 387 A trade mark is taken to be "deceptively similar" to another trade mark if it so nearly resembles that other trade mark that it is likely to "deceive or cause confusion": TM Act s 10. A "registered trade mark" is one whose particulars are entered in the Register of Trade Marks kept under the TM Act: s 6(1). 388 The question is whether, as a matter of fact, there is such a reasonable probability of deception or confusion that the use of the new mark and title should be restrained. In so deciding, an attempt should be made to estimate the effect or impression produced on the mind of potential customers: Australian Woollen Mills at 658 (Dixon and McTiernan JJ); Hashtag FCAFC at [61] (Nicholas, Yates and Burley JJ). 389 The deceptive similarity of the marks is assessed by reference to laypersons who may have an imperfect recollection of the marks. The marks should not be assessed side by side: Australian Woollen Mills at 658 (Dixon and McTiernan JJ). 390 The enquiry is not a comparison of the infringer's actual use with the registrant's actual use, but whether the use of a substantially identical or deceptively similar mark infringes the property rights of the proprietor by virtue of the registration: Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 (Shell Company) at 422 (Kitto J). 391 In considering whether conduct amounts to use as a trade mark, it is necessary to consider whether the purpose of the infringing use was to indicate a connection in the course of the trade between the products or services bearing the registered trade mark and the alleged infringer: Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 at 342 (Burchett J) and 347 (Gummow J). 392 It is not necessary to show an intention by the defendant to deceive or confuse, however this may be a relevant factor among others which can be taken into account: Australian Woollen Mills at 657. 393 It must be shown that the alleged infringer used the sign as a badge of origin to distinguish their goods or services from those of other traders: Coca-Cola Co v All-Fect Distributors Ltd (t/as Millers Distributing Co) (1999) 96 FCR 107; [1999] FCA 1721 at [20] (Black CJ, Sundberg and Finkelstein JJ). 394 Justice Parker, as he then was, in Re An Application by the Pianotist Co Ltd for the Registration of a Trade Mark (1906) 23 RPC 774, summarised the approach to whether one trade mark so nearly resembles another as to be likely to deceive in these terms, at 777: You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion - that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods - then you may refuse the registration, or rather you must refuse the registration in that case. 395 This summary of Parker J was endorsed by the High Court in Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd (1952) 86 CLR 536 at 538 (Dixon, Williams and Kitto JJ). 396 There are circumstances in which matters relevant to the plaintiff's mark that are broader than the mark itself might be taken into consideration: Allergan at [174] (Stewart J). 397 Section 219 of the TM Act provides: In an action or proceeding relating to a trade mark, evidence is admissible of the usage of the trade concerned and of any relevant trade mark, trade name or get-up legitimately used by other persons. 398 It has been stated that a provision of the character of s 66 of the former Trade Marks Act 1955 (Cth) (the predecessor provision to s 219 of the TM Act that was relevantly in identical terms), "reinforces the established position that the presence in the marks under comparison of matter which is in common use in the trade must to some extent be discounted when determining whether the marks are deceptively similar": Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89 at 127 (Gummow J). 399 It may be easier to find infringement of a registered mark where it consists of a coined phrase than in a case where the registered mark is a generally descriptive word which has acquired a secondary meaning, so becoming distinctive of the plaintiff's goods as a badge of origin: PepsiCo Australia Pty Ltd (t/a Frito-Lay Australia) v Kettle Chip Co Pty Ltd (1996) 135 ALR 192 (PepsiCo) at 193 (Lockhart J). 400 The purpose and effect of the words are to be determined by having regard to the context and surrounding circumstances in which they are used: PepsiCo at 213 (Sackville J). 401 In Unilever Australia Ltd v Karounos and Another (2001) 113 FCR 322; [2001] FCA 1132, Hill J held at [72] that: Particularly where what is claimed to be a trade mark is an ordinary English word and descriptive of certain qualities, it is obvious that the word can be used without necessarily constituting an infringement. In determining whether there is an infringement, context is all important: Shell Co per Kitto J at 422. In the Caplets case Gummow J said at 347-348: "The relevant context, where the mark is a word mark, includes a consideration of the way in which the word has been displayed in relation to the goods and advertisements of which complaint is made … Where the trade mark allegedly used by the defendant comprises ordinary English words ... then ... 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 ... [W]here the issue is one of infringing use by use of a word mark ... the fundamental question remains ... whether those to whom the user is directed are being invited to purchase the goods (or services) of the defendants which are to be distinguished from the goods of other traders 'partly because' (emphasis supplied) they are described by the words in question." 402 In Shell Company, Kitto J held at 422: [T]he context is all-important, because not every use of a mark which is identical with or deceptively similar to a registered trade mark infringes the right of property which the proprietor of the mark possesses in virtue of the registration.

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Availability of pleaded defences 414 I turn now to consider the s 122(1)(b), (c), (f) and (fa) defences that the respondents seek to rely upon in the Further Amended Defence. Curiously, the respondents pleaded but did not advance any submissions in support of these defences. 415 In order to make good the defences provided in s 122(1)(b) and (c), the respondents would need to establish that they had used VEP and VEP-VX5 in good faith to indicate the intended purpose or the kind, quality or some other characteristic of the New Powins Circuit Breakers. I am not satisfied that any good faith defence is available. 416 First, Powins was aware, prior to engaging, or continuing to engage, in the trade mark infringement, of the extent of the use of VEP as a brand and badge of origin for the Huatech Circuit Breakers and Huatech's objection to the respondents' use of VEP and VEP-VX5. 417 Second, the Representations that I have found were conveyed in the Publications and Customer Communications and the filing of the GELPAG VEP trademark application establish that the respondents were seeking to use VEP and VEP-VX5 as brands and badges of origin, not to indicate the intended purpose or the kind, quality or some other characteristic of the New Powins Circuit Breakers. 418 The s 122(1)(f) and (fa) defences can only succeed if the Court is satisfied that the respondents would be able to obtain registration of VEP, VEP-VX5 or GELPAG VEP. Given the extent of the use of VEP as a brand and badge of origin for the Huatech Circuit Breakers I am not satisfied that the respondents would be able to obtain registration of any of those marks. 419 I turn now to consider the descriptive use exemption defence sought to be relied upon by the respondents to the VEP trade mark infringement case advanced by Huatech. The respondents addressed the defence in both their opening and closing written submissions. 420 As explained above, the VEP mark was exclusively used in Australia as a brand or badge of origin for Huatech Circuit Breakers. I am not satisfied that VEP is a phrase or acronym that was purely descriptive or was a phrase or acronym that was common place within the market in Australia. 421 For the foregoing reasons, the respondents have not established any of the trade mark defences that they have sought to advance. 422 I am therefore satisfied that the respondents have infringed the VEP Registration and thereby contravened s 120(1) of the TM Act.

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Principles 425 The power to grant an injunction is expressed in wide terms and confers a broad discretion on the Court: Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135; [2006] FCAFC 21 (Foster) at [28] (Ryan, Finn and Allsop JJ (as his Honour then was)) in the context of the analogous provisions in s 80(1) of the former Trade Practices Act 1974 (Cth) (TPA). 426 Their Honours referred with approval at [30] to the statement by Lockhart J (with whom French J, as his Honour then was, agreed), in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256 with respect to the boundaries of s 80 of the TPA: In my opinion subss (4) and (5) [of s 80] are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pt IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly. 427 Their Honours stated at [35]: In our view, the need, suggested by the authorities, for a nexus between the contravention of the Act which the Court has found and the terms of the restraint which it then decides to impose is a specific reflection of Lockhart J's insistence that the power be exercised "judicially and sensibly." It goes to the appropriateness of the relief contemplated by the concluding words of s 80(1), not to the extent of the power to grant it. If the Court considers that a complete prohibition, whether permanently or for a specified period, on a respondent's engaging in a particular field of commercial activity or industry is required to protect the public from conduct of the kind which constituted the contravention, s 80 is wide enough to support such a prohibition as a matter of power. This analysis of s 80 conforms, we consider, with that recently undertaken by Goldberg J in Australian Competition and Consumer Commission v Dermalogica Pty Ltd (2005) 215 ALR 482 at 504 [110]. 428 Injunctive relief pursuant to s 126 of the TM Act for trade mark infringements is usually, but not always, granted in the general form of an injunction restraining an infringement of a trade mark rather than the specific impugned conduct: Calidad Pty Ltd v Seiko Epson Corp (No 2) (2019) 147 IPR 386; [2019] FCAFC 168 at [42]-[47] (Greenwood, Jagot and Yates JJ). 429 In Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd (No 2) [2021] FCAFC 180, the Full Court (Jagot, Lee and Thawley JJ) stated, at [13]-[14]: The authorities considered in Calidad included Christian v Société Des Produits Nestlé SA (No 2) [2015] FCAFC 153; 327 ALR 630 (Bennett, Katzmann and Davies JJ) in which the Full Court had taken the view that, in the circumstances of that case, an order "which merely repeats the prohibition in the Act, is not appropriate": Christian at [181]. In our view, an injunction in general form is appropriate in the circumstances of this case, in particular having regard to the commercial context, the continuing business operations of the parties, and the unchallenged finding that Self Care intended to leverage off the reputation of Botox. [Emphasis omitted.]

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Consideration 435 The submissions made by the respondents directed at relief largely proceed on the premise that Huatech has not established the alleged contraventions of ss 18 and 29 of the ACL, passing off and trade mark infringement. Given my findings above, these submissions do not relevantly assist the respondents. 436 Moreover, the submissions still do not come to terms with the flagrant and deliberate nature of the impugned conduct. The suggestion that the respondents have made "similar announcements" to those made by Huatech is disingenuous and the submission that they have communicated that a "different product is being sourced from Gelpag" highlights again the inherent and fundamental confusion created by the respondents' use of "Gelpag" in the Publications and Customer Communications. The Gelpag Representation was one of the principal means by which the respondents drew an inescapable connection between the New Powins Products and the historical installation of the Huatech Products. 437 Otherwise, as submitted by Huatech, even if the VEP-related conduct had ceased in 2019 or subsequently, that is not a reason to deny declaratory or injunctive relief. Injunctive relief may issue even if there were no reason to apprehend continuing or future contraventions: see, eg, ACL s 232(4); Valve Corporation v Australian Competition and Consumer Law (2017) 258 FCR 190; [2017] FCAFC 224 at [224] (Dowsett, McKerracher and Moshinsky JJ). 438 I am satisfied that given the nature and extent of the ACL, passing off and trade mark infringements and the threat to infringe the VEP registration by the filing of the GELPAG VEP trade mark application that it is appropriate to grant prohibitory injunctions in both the general form and specifically with respect to any use of AMS, VEP or MSA. The parties will be given the opportunity to advance submissions about the precise wording of the injunctions in the light of these reasons for judgment. 439 The quantum of damages to which Huatech is entitled will need be determined in a further hearing.

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Legal principles 446 Exemplary damages are available where the infringing conduct shows a conscious and contumelious disregard for the applicant's rights: XL Petroleum (N.S.W.) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448 (XL Petroleum). 447 There is no necessary proportionality between an assessment of compensatory damages and an award of exemplary damages, the latter may be imposed in an amount many times more than the former: XL Petroleum at 471 (Brennan J). 448 In Sanders v Snell (1997) 73 FCR 569, at 451, Wilcox, O'Loughlin and Lindgren JJ stated that exemplary damages: can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like; or as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights. 449 Conduct by respondents in the course of litigation may also be a relevant factor in determining whether exemplary damages should be awarded: Facton Ltd and Others v Rifai Fashions Pty Ltd and Another (2012) 199 FCR 569; [2012] FCAFC 9 (Facton) at [69] (Gilmour J) citing by way of analogy, Review Australia Pty Ltd v New Cover Group Pty Ltd (2008) 79 IPR 236; [2008] FCA 1589 at [53]-[58] (Kenny J) where additional damages pursuant to s 75(3) of the Designs Act 2004 (Cth) were awarded for design infringement on the basis of deficiencies in the respondents' discovery, responses to a notice to produce and attending for cross-examination. 450 It is generally accepted in Australia that the particular circumstances of a passing off may make it appropriate to make an award of exemplary damages in order to punish a respondent who has engaged in conduct that shows a conscious and contumelious disregard for the wronged party's rights and to deter the wrongdoer from engaging in similar conduct in the future: Taleb and Another v GM Holden Ltd (ACN 006 893 232) and Others (2011) 286 ALR 309; [2011] FCAFC 168 (Taleb) at [41] (Finn and Bennett JJ, Dowsett J generally agreeing at [56]). 451 The proceeding the subject of the appeal in Taleb was the decision of Gordon J in GM Holden Ltd (ACN 006 893 232) and Others v Paine and Others (2011) 281 ALR 406; [2011] FCA 569 (GM Holden). 452 The impugned conduct relied upon by the applicants in GM Holden to give rise to an award of exemplary damages comprised counterfeiting, the respondents avoided having to incur the design costs incurred by the applicants, the respondents' products continued to be offered for sale well after the applicant's solicitors wrote to them and the letters of demand sent by the applicants solicitors were ignored completely. Her Honour agreed with the applicants' submissions that it was necessary to deter similar infringements to protect consumers from being misled into purchasing products in the mistaken belief that they had been authorised, and there was a public interest in deterring unauthorised copying when design was a critical component of the applicants' business: at [96]. 453 Her Honour concluded that the impugned conduct identified above together with the admission by the tenth respondent that he was "happy to destroy as many records" of the eighth defendant "as quickly as possible" following the first meeting of creditors, constituted a contumelious disregard of the applicants' rights and required exemplary damages to be calculated accordingly: GM Holden at [96]. Her Honour determined that an award of exemplary damages in an amount of $200,000 was appropriate in the circumstances of the case. 454 On appeal, the decision to award exemplary damages was upheld but the amount was reduced to $75,000 on the basis that her Honour had erred in proceeding on the basis that there had been any improper destruction of documents by the eighth defendant given the terms of a resolution at the first meeting of creditors addressing the issue. The Full Court concluded that "once shorn of that erroneous exemplification, there is reason why the sum of exemplary damages should be re-visited": Taleb at [42]-[46] (Finn and Bennett JJ, Dowsett J agreeing at [98]).

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Submissions 455 Huatech submits that there are significant similarities between GM Holden and the claims that it is advancing in these proceedings, particularly as to knowledge and intention. Huatech submits that: (a) the appropriation of AMS and VEP by the respondents was flagrant and the flagrancy was arguably heightened in the period from February to July 2019 because the respondents did not have a type tested product during that period; (b) the respondents continued to use AMS and VEP after receiving the Pipers Letters and the respondents knew before the March Pipers Letter was sent that Huatech might object to the use of AMS; (c) Mr Rauwendaal accepted in cross-examination that he had intentionally made a number of the Representations and had knowingly made untrue statements in certain communications with customers and Mr van Wijk accepted that at least once he had intended to convey to BHP that Powins was offering the existing switchgear that BHP was accustomed to; (d) the respondents' campaign was calculated; and (e) there is a sufficient basis for the Court to conclude that Mr Rauwendaal and Mr van Wijk gave deliberately evasive and untrue evidence entirely contradicted, in some instances, by contemporaneous documents. 456 Huatech submits that the respondents were on notice of Huatech's position, including its VEP Registration, from March 2019, but they denied all liability and wrongdoing and unnecessarily put Huatech to proof on wide-ranging matters such as reputation in VEP, Huatech's ownership of the VEP Registration, and the goods in respect of which the respondents' trade mark applications were filed. 457 Huatech submits that although the GELPAG VEP application appears to have lapsed in around August 2021, the respondents did not notify Huatech of this, nor adopt any change in position in the litigation regarding VEP. It submits that the first indication that the respondents accepted any material aspect of Huatech's claims regarding VEP was by Mr van Wijk in the course of his cross-examination. Huatech's evidence in chief was completed on 8 February 2021. 458 Huatech submits that although Mr van Wijk's oral evidence (in December 2021) was that he came to appreciate those matters "based on some evidence provided by Huatech to us in the first couple of affidavits", the respondents took no steps to change their position in the proceeding and Mr van Wijk did not refer to this "appreciation" in any of the affidavits he swore throughout 2021. Mr Rauwendaal's second affidavit, served on the day the trial began, referred to a "VEPXXXXX" code as a "generic product code". 459 Huatech submits that the respondents continued to use VEP after March 2019 (including by emphasising the letters V E P) in documents such as responses to tenders. The latest tender document in evidence emphasising those letters is dated 11 December 2020, and Huatech submits that there is no evidence that the respondents have ceased including that material in their documentation since then. 460 The respondents to not advance any specific submissions in response to the exemplary damages sought by Huatech in addition to their general contentions on relief summarised above.

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Consideration 461 I am satisfied that the passing off conduct of the respondents was sufficient to constitute a conscious and contumelious disregard for Huatech's rights and an award of exemplary damages is appropriate. 462 I accept that the conduct fell short of fraud, any "counterfeiting" of the AMS and VEP marks was somewhat qualified by the additions or references to "Gelpag" and "Powins", and on balance I am satisfied that Huatech has somewhat overstated the alleged admissions by Mr van Wijk and Mr Rauwendaal of dishonest conduct or the giving by them of untrue and deliberately evasive evidence in the course of their respective cross-examinations. 463 By way of example, contrary to Huatech's submissions, there was nothing untoward in Mr van Wijk's letter to BHP dated 22 November 2016 stating that Powins was offering the existing switchgear that BHP was accustomed to. As Mr van Wijk explained when pressed on the content of the letter in cross-examination: You are - you are intending to draw BHP Billiton's attention to the GELPAG AMS products manufactured by Huatech that it had previously been supplied with, yes?---Yes. And you want to draw - you wanted to draw BHPs attention to the fact that this is now the Huatech switchgear and POWINS, as the distributor, could assist BHP Billiton with quotations and supply of new GELPAG AMS switchgear now marketed as the POWINS AMS. Do you agree?---No, this was not new AMS switchgear. This was - this was still the product - the same product that was distributed from 2007 that was developed in joint venture with GELPAG and Huatech. It wasn't the new - the new GELPAG switchgear was only pre-twenty - post-2019 - March 2019. 464 I am satisfied, however, that the respondents' conduct was flagrant, deliberate, sustained and occurred after the receipt of demands from Huatech that it cease. I am also satisfied that at the time it commenced the respondents must have recognised that Huatech would object to any use by the respondents of the acronym AMS or VEP, either alone or in any composite manner. Clause 6.1 of the 2016 Distribution Agreement, signed by Mr van Wijk for Powins, expressly prohibited any "direct or indirect use, reference to" or other employment of Huatech's name, trademarks or trade names other than for the purposes of the agreement. 465 On no view could the passing off be characterised as inadvertent, accidental, limited in duration or unknowing. Nor was there any acceptance or acknowledgement of the contravening conduct by the respondents, other than qualified concessions in cross-examination of the purpose and effect of the impugned conduct. 466 I am satisfied that the respondents' conduct could fairly be characterised as flagrant and brazen. This conduct could be seen in the incorporation of Gelpag AU in order to taking advantage of the inherent ambiguity in referring to "Gelpag", the filing of trade mark applications for GELPAG VEP and the making of the Representations in the Publications and the Customer Communications, and in particular, linking the New Powins Products to the 4,000-plus previously installed Huatech Products, the calculated bolding of the letters A, M and S and the letters V, E and P, the use of MSA and the juxtaposition of the AMS and VEP marks with MSA and VX5. 467 The Representations that I have found make clear that a principal objective of the passing off was to seek to persuade customers and end users that the New Powins Products were the same products as the Huatech Products and that they were manufactured by the same company. I am satisfied that the respondents were seeking to leverage off and obtain the benefit of the goodwill and reputation that Huatech had established in the AMS and VEP branded Huatech Products with customers and end users in Australia. As submitted by Huatech, the flagrancy of the respondents' passing off was heightened in the period from February to July 2019 because the respondents did not have a type tested product during that period but sought to rely by inference or more explicitly in the Customer Communications on the type testing completed on the Huatech Products. 468 For these reasons I am satisfied that an award of exemplary damages for the respondents' passing off is necessary to punish the respondents for engaging in conduct that shows a conscious and contumelious disregard for Huatech's rights and to deter the respondents from engaging in similar conduct in the future. 469 The parties will be given an opportunity to make submissions on the quantum of exemplary damages to be awarded.

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Claims advanced by the respondents 491 The respondents allege that Huatech, by reason of the publication of the Announcement, the March Pipers Letter, the October Pipers Letter and the Litigation Statement (together, Huatech Publications): (a) has contravened s 18 of the ACL by engaging in misleading or deceptive conduct; and (b) has contravened s 29(1)(a), (g) and (h) of the ACL by making false or misleading representations. 492 The respondents have identified in the Amended Cross-Claim specific inferences that they contend arose from specified statements in each of the Huatech Publications (Inferences). There is a substantial overlap in the Inferences. 493 The respondents plead in the Amended Cross-Claim that both the inferences that they have identified and the specified statements (that they characterise as "representations") that they rely upon in each of the Huatech Publications as giving rise to those inferences were misleading or deceptive and false or misleading. In their submissions, the respondents focused only on whether the Inferences were misleading or deceptive and false or misleading. In effect, this approach reflected the reality that the misrepresentations alleged by the respondents in the Amended Cross-Claim were encapsulated in the Inferences rather than the specific statements that they relied upon to give rise to those Inferences. I have therefore also focused on the Inferences rather than attempting to address also a case that was pleaded, but not advanced, in the respondents' submissions. 494 In order to minimise the confusion that would otherwise arise by referring to the specified statements as "representations", I have used the term "extracts" rather than "representations" to refer to the specific statements that the respondents rely upon in each of the Huatech Publications. 495 It is necessary to determine, first, whether the inferences alleged arise from the extracts relied upon by the respondents in each of the Huatech Publications, second, whether the Huatech Publications were disseminated by Huatech and to whom, third, whether the inferences alleged were misleading or deceptive and false or misleading and fourth, whether the respondents suffered any loss or damage by reason of the inferences alleged.

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Announcement 498 The respondents rely upon the following statements in the Announcement (together, Announcement Extracts): Therefore, the distributor agreement between POWINS Pty Ltd (POWINS) and Xiamen Huadian Switchgear Co., Ltd (Huadian) had been expired on 1st of February 2019. All the previous agreements with existing OEM partner or distributor had been expired effective from this date. Based on this statement, we strictly propose that all enquiries and product supplies from this date shall be directly through LEISTUNG Energie and or its local sub-distributors only 499 The respondents allege that the following inferences arise from the Announcement Extracts: (a) the respondents are likely to engage in conduct that is not "strictly" consistent with their contractual obligations; (b) the respondents are willing to act unlawfully as part of their normal business activities; (c) the respondents should cease selling and/or distributing any switchgear panels or circuit breaker products in Australia; (d) the respondents do not have authority to sell the "Switchgear Panels" or "Circuit Breakers" in Australia; and (e) the respondents are no longer affiliated with Huatech, (together, Announcement Inferences). 500 I am satisfied that the Announcement Inferences alleged in paragraphs (d) and (e) arose from the Announcement Extracts. These inferences arise by reason of the statements that the distributor agreement with Powins had "expired" and all enquiries were strictly to be made through "LEISTUNG Energie and or its local sub-distributors only". 501 I am not persuaded, however, that the other alleged inferences arise. I do not consider that an announcement to the effect that an existing distribution agreement has come to an end and that all future product enquires are to be made "strictly" to a new distributor carries with it any inference that the former distributor was likely to engage in conduct inconsistently with its contractual obligations or that it was willing to act unlawfully. Nor am I satisfied that there is any suggestion in the Announcement Extracts that the respondents must cease selling and/or distributing any switchgear panels or circuit breaker products in Australia.

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March Pipers Letter 502 The respondents rely on the following statements in the March Pipers Letter (together, March Pipers Letter Extracts): [Huatech] has accrued unregistered rights in the AMS mark in Australia, for switchgears and circuit breakers. … [Huatech] considers the marks AMS and MSA are significantly similar … It is likely that consumers will believe that your goods are being provided by or are associated with [Huatech], which runs the real risk of damaging [Huatech's] reputation and business. [Huatech's] AMS and VEP brands are some of the market leaders in Australia with respect to switchgears and circuit breakers. … If you do not stop the aforementioned infringement, [Huatech] will have no option but to take appropriate actions, including legal actions on your direct manufacture and sales activities as well as sales activities through other agency or distributor channels in order to protect our client's legitimate rights and interests. If your client fails to meet the above demands by 12 April 2019, [Huatech] will have no option but to consider taking appropriate action, including legal action, against you in Australia, and without further notice. [Emphasis in original.] 503 The respondents allege that the following inferences arise from the March Pipers Letter Extracts: (a) the respondents are willing to act unlawfully and have acted unlawfully as part of their normal business activities; (b) Huatech has an exclusive right to use the term AMS; (c) the respondents are attempting to deliberately confuse or deceive the marketplace by using the term AMS and/or MSA for their products; (d) the respondents are attempting to deliberately confuse or deceive the marketplace into believing that the respondents continue to be affiliated with Huatech; (e) the products being sold by the respondents from 8 March 2019 pursuant to the 2019 Gelpag Distribution Agreement are not of the same quality or standard as the products manufactured by Huatech and are in fact technologically inferior; (f) the respondents should cease selling and/or distributing the Gelpag products in Australia; (g) if the cross-claimants do not cease selling and/or distributing the Gelpag products in Australia then they will be sued by Huatech and lose any profits that they make from selling the Gelpag products in Australia; and (h) Huatech is entitled to any profits that are made by the respondents as a result of the 2019 Gelpag Distribution Agreement, (together, March Pipers Letter Inferences). 504 I am not satisfied that any of the March Pipers Letter Inferences, other than the inferences alleged in paragraphs (b) and (e) above to the effect that Huatech had the exclusive right to use the term AMS and the New Powins Products were not of the same quality and standard as the Huatech Products and were, in fact, technologically inferior, arose from the March Pipers Letter Extracts. 505 On balance, I consider that an inference that the products sold by the respondents are not of the same quality and are technologically inferior arose from the statement in the March Pipers Letter Extracts that using the AMS and MSA marks runs the "real risk of damaging [Huatech's] reputation and business". I am satisfied that the addition of a real risk of damaging Huatech's "reputation" carries with it a necessary implication that the damage would arise because the New Powins Products were materially inferior to the Huatech Products. 506 The March Pipers Letter Extracts did not convey any inference to the effect that the respondents were deliberately seeking to confuse the marketplace or were willing to act unlawfully. Nor did they convey any suggestion that Huatech was seeking to stop the respondents from selling "Gelpag products" or that Huatech was entitled to any profits made by the respondents under the 2019 Gelpag Distribution Agreement. In context, the references to the "Gelpag products" must be a reference to the New Powins Products. There was no allegation nor any evidence that the respondents were continuing to sell or distribute the Huatech Products after February 2019. Huatech was not objecting to the respondents selling and distributing the New Powins Products or claiming any entitlement to profits generated from the sale of the New Powins Products. 507 Rather, the March Pipers Letter Extracts were directed at the use by the respondents of the mark MSA given its similarity to the AMS mark. They did not amount to a demand that the respondents not sell their "Gelpag" products, rather they constituted a demand that the respondents not sell those products as MSA-branded goods. 508 Finally, there were no references in the March Pipers Letter Extracts to the possible commencement of legal proceedings.

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October Pipers Letter 509 The respondents rely on the following statements in the October Pipers Letter (together, October Pipers Letter Extracts): As noted in our previous correspondence, [Huatech] is the true owner of the AMS trade mark in relation to switchgear and circuit breakers. Further, [Huatech] considers that AMS and MSA are sufficiently similar to confuse consumers. … Furthermore, [Huatech] is still concerned with your client's implication that "GELPAG MSA" products have the same quality as [Huatech's] AMS products, but are more technologically advanced. This raises serious quality control issues for [Huatech], including that your client's products may not be of the same high quality as [Huatech's] products and this will potentially damage [Huatech's] reputation and business. 510 The respondents allege that the following inferences arise from the October Pipers Letter Extracts: (a) the respondents are willing to act unlawfully, have acted unlawfully and continue to flagrantly act unlawfully as part of their normal business activities; (b) Huatech has an exclusive right to use the term AMS; (c) Huatech holds a registered trade mark of AMS; (d) the respondents are attempting to deliberately confuse or deceive the marketplace by using the term AMS and/or MSA for their products; (e) the respondents are attempting to deliberately confuse or deceive the marketplace into believing that the respondents continue to be affiliated with Huatech; (f) the products being sold by the respondents pursuant to the 2019 Gelpag Distribution Agreement are not of the same quality or standard as the products manufactured by Huatech and are in fact technologically inferior; (g) the respondents should cease selling and/or distributing the Gelpag products in Australia; (h) if the respondents do not cease selling and/or distributing the Gelpag products in Australia then they will be sued by Huatech and lose any profits that they make from selling the Gelpag products in Australia; and (i) Huatech is entitled to any profits that are made by the respondents as a result of the 2019 Gelpag Distribution Agreement, (together, October Pipers Letter Inferences) 511 I am satisfied that the October Pipers Letter Inferences alleged in paragraphs (b) and (c) arose from the October Pipers Letter Extracts, particularly by the statement that Huatech "is the true owner of the AMS trade mark in relation to switchgear and circuit breakers". 512 Unlike the March Pipers Letter Extracts, the phrase "may not be of the same high quality" is more qualified and does not give rise to an inference that the New Powins Products "are not of the same quality or standard" and the language of "will potentially" damage reputation is more restrained than the "real risk" of damage to reputation wording used in the March Pipers Letter Extracts. 513 I am not persuaded that any of the other alleged inferences were conveyed by the October Pipers Letter Extracts for the same reasons that I have explained above with respect to the March Pipers Letter Extracts.

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Litigation Statement 514 The respondents rely on the following statements in the Litigation Statement (together, Litigation Statement Extracts): Huatech alleges in the proceeding that Powins has engaged in misleading and deceptive conduct and made false or misleading representations, in trade or commerce, in contravention of sections 18, 29(1)(a), 29(1)(g) and 29(1)(h) of the Australian Consumer Law. Huatech also alleges that Powins has engaged in passing off at common law and infringement of Huatech's Australian Trade Mark No. 1148294 for VEP (device). … Contrary to these representations, Huatech no longer has any relationship or affiliation with Powins or any Gelpag company. Huatech's latest generation of type tested AMS switchgear panel and VEP circuit breaker products are promoted and distributed exclusively under the Huatech and Leistung Energie brands through its Australian channel partner Timestar and its authorised distributors MVLV and Plummers. Huatech has not authorised any Powins or Gelpag company to promote, sell or service any switchgear panel or circuit breaker products manufactured by Huatech, since the conclusion of Huatech's relationship with Powins in early 2019 (other than honouring the warranty for switchgear products installed before early 2019). 515 The respondents allege that the following inferences arise from the Litigation Statement Extracts: (a) the respondents are willing to act unlawfully, have acted unlawfully and continue to flagrantly act unlawfully as part of their normal business activities; (b) the respondents are attempting to, and on a regular basis, are deliberately confusing or deceiving the marketplace of the origin of their products; (c) the respondents are attempting to deliberately confuse or deceive the marketplace into believing that the respondents continue to be affiliated with Huatech; (d) the products being sold by the respondents pursuant to the 2019 Gelpag Distribution Agreement are not of the same quality or standard as the products manufactured by Huatech and are in fact technologically inferior; (e) the respondents should cease selling and/or distributing the Gelpag products in Australia; and (f) Huatech is entitled to any profits that are made by the respondents as a result of the 2019 Gelpag Distribution Agreement, (together, Litigation Statement Inferences). 516 I am not satisfied that any of the Litigation Statement Inferences arise from the Litigation Statement Extracts. 517 Addressing, first, the inferences alleged in paragraphs (a) to (c), allegations that parties have engaged in passing off or made false or misleading statements do not necessarily carry with them inferences that the impugned conduct was engaged in deliberately to confuse or deceive the marketplace or that the parties were willing to act unlawfully. Any subjective element of intent to mislead or deceive or to pass off is not a necessary element of those causes of action. 518 As to the inference alleged in paragraph (d), allegations that a party has engaged in misleading or deceptive conduct or passing off, no longer has an affiliation with another party or is not authorised to promote, sell or service products of that other party cannot give rise to an inference that the products of the first named party are not of the same quality or standard or are technically inferior. 519 As to the inferences alleged in paragraph (e) and (f), the Litigation Statement is directed at the sale and distribution of Huatech products, not "Gelpag products" or any profits from the sale of products under the 2019 Gelpag Distribution Agreement.

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Submissions 521 The respondents submit that it is clear from the evidence that Huatech did not take care with any commercial, in-confidence information, that it is also clear that Mr Chen (and by extension, Leistung Energie) had access to the decision makers of Huatech, and that Ms Ding failed to provide proper disclosure of the interactions with Mr Chen. Further, they submit that Mr Zhu seems to have forgotten whether he spoke to Mr Chen at all. They submit that all of this evidence is commercially convenient and difficult to believe. 522 The respondents submit that this evidence allows the court to draw an inference that: (a) Mr Martin Chen and/or Mr Albert Foo's company was a servant or agent of Huatech as "they seem to have the influence of a person who was in a formal agency arrangement". Mr Chen's involvement in legal proceedings would otherwise be unexplained; (b) the failure of Huatech to call Mr Albert Foo or Mr Martin Chen as witnesses in these proceedings should invoke an adverse inference being drawn by the Court that any evidence that they would have given would have been detrimental to the Huatech case; and (c) the evidence put forward by the respondents ought to be accepted. 523 The respondents submit that Leistung Energie should be held to be Huatech's agent because it had "influence [over Huatech]" and they ask, "otherwise why would Mr Chen be involved in legal decisions". Mr Martin Chen wrote to Huatech asking for the October Pipers Letter to be sent. Leistung Energie was and is Huatech's exclusive distributor in Australia. 524 The respondents submit that both the March Pipers Letter and the October Pipers Letter (together, Pipers Letters) were disseminated to their customers, ostensibly by Huatech's agents, Leistung Energie or Mr Albert Foo (or Mr Martin Chen). They rely in particular on the evidence of Mr van Wijk and letters sent from an email address "lawyersfirmaustralia@gmail.com". 525 The respondents submit that the fact Huatech's legal representatives were queried as to potentially disseminating the March Piper's Letter to Powins' customer base leads to a strong probability that it was Huatech, or an agent of Huatech, that caused the March Piper's Letter to be disseminated. They submit that this conclusion is strengthened in circumstances where only Huatech, Powins and representatives of Huatech initially had copies of the March Piper's Letter. 526 The respondents allege that Mr Albert Foo "personally hand delivered the Litigation Statement to customers or potential customers of the [respondents] in Western Australia" as a servant or agent of Huatech. Huatech submits that there is no evidentiary foundation for this allegation. 527 Huatech admits that it authorised the publication of the Announcement and in particular that it authorised Timestar to distribute the Announcement in Australia. It submits, however, that there is no agency, employment relationship or other basis on which Timestar's distribution of the Announcement could be attributed to it. 528 Huatech also admits that it caused the Litigation Statement to be published or alternatively authorised it to be published and that it provided a copy of the Litigation Statement to Mr Albert Foo and Mr Dominic Foo of Leistung Energie. It submits that it provided a copy of the statement to the Foos because Leistung Energie was its exclusive Australian distributor at the time. 529 Huatech denies that any of its servants or agents distributed the Pipers Letters to customers of the respondents. Huatech submits that its relationship with Timestar and Leistung Energie, companies with which Mr Albert Foo is associated, is purely contractual. It submits that cl 12. 1 of the 2018 OEM Agreement expressly provides that there is no agency relationship between the two companies. It submits that both the Authorised Distributor Agreement between Huatech and Timestar dated 1 January 2010 (Timestar Distribution Agreement) and the Consulting Service Agreements between Huatech and Timestar dated 1 January 2013, 1 January 2015, 1 January 2016, 1 January 2017 and 1 January 2018 (Timestar Consulting Agreements) all expressly provide that there is no agency relationship between Huatech and Timestar. 530 Huatech submits, even if the submission of the respondents that Huatech's servants or agents distributed the Pipers Letters was accepted, that conduct cannot be attributed to Huatech. It submits that, as to the act being "enabled by the confidential information Huatech had obtained", there was no evidence of Powins conveying the two (or any) customer email addresses to Huatech at all. It submits that no evidence of any "client list" was adduced. 531 Huatech submits that the respondents in their closing submissions introduce for the first time a claim that "Huatech did not take care with any commercial in confidence information". It submits that there is no pleading of negligent or reckless conduct or any cause of action based on omission. Huatech submits that the pleaded conduct is that Huatech, either by itself or by its servant or agent, misused confidential information to disseminate the Huatech Publications.

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Consideration 532 Given the admissions by Huatech that it authorised the publication of the Announcement, it is not readily apparent why Huatech then seeks to contend that it is not responsible for any alleged further dissemination of the Announcement by Timestar on the basis that there was no agency, employment or other basis to attribute to Huatech. The self-evident purpose of the Announcement was to seek to clarify the confusion that had been created by the conduct of the respondents and the Announcement was provided by Huatech to Mr Chen (copied to Albert and Dominic Foo) under cover of an email in which Mr Ye stated: "Pls find enclosed letter for the communication!" 533 Given the basis on which the Announcement was provided to Mr Chen, "for the communication!" in the context of Huatech's contemporaneous concerns about the respondents' conduct and the content of the Announcement, I am satisfied that Huatech authorised and is thereby liable for any consequences that might arise from any further dissemination of the Announcement by Timestar. 534 I am not satisfied, however, that the respondents have established that Huatech distributed, caused to be distributed or otherwise authorised the provision of the Pipers Letters to any customers or potential customers of the respondents for the following reasons. 535 First, Ms Ding gave evidence that she was requested by Mr Zhu to instruct a Chinese law firm to engage an Australian law firm to prepare a draft of what became the March Pipers Letter, she received a draft of the proposed letter and provided it to Mr Zhu for his approval, Mr Zhu subsequently authorised her to provide a copy of a draft of the letter to Mr Chen and she understood that Mr Chen had asked Mr Zhu if he could see a draft of the proposed letter before it was sent to Powins in final form. It is not surprising or exceptional that Leistung Energie drew Powins' conduct to Huatech's attention and asked Huatech to take steps in relation to it. 536 Ms Ding gave evidence that she did not receive any comments from Mr Chen on the drafts of the Pipers Letters and was later instructed by Mr Zhu to instruct Huatech's Chinese lawyers to send the final version of the March Pipers Letter to Powins. Ms Ding gave evidence that she was not aware of whether Mr Chen might have spoken to Mr Zhu about the letter before she gave the instruction for it to be sent to Powins. Mr Zhu was not cross-examined about the March Pipers Letter. 537 Second, the evidence of Mr van Wijk that was relied upon by the respondents to establish dissemination of the March Pipers Letter was not admitted into evidence or was subject to hearsay limitations. 538 Third, the only evidence of any dissemination of the March Pipers Letter is two emails from persons alleged to be customers of the respondents stating that they had received the March Pipers Letter from an email address "lawyersfirmaustralia@gmail.com". Beyond those emails, there is no evidence as to which "customers" received the March Pipers Letter and whether they were the respondents' customers. Nor was there any evidence as to the identity of any person or entity using the email address "lawyersfirmsuatralia@gmail.com", the identity of the persons to whom the two emails were sent or of any communication between Huatech and such persons. 539 Fourth, there was no evidence that Huatech had provided any "customer list" of Huatech to Timestar or Leistung Energie by providing a copy to Mr Albert Foo or Mr Martin Chen, or to any other third party, that might have constituted conduct on the part of Huatech that enabled the alleged dissemination of the Pipers Letters "ostensibly by Huatech's agents" to the customers of Powins. 540 Fifth, I am not satisfied that the respondents have established that any of Timestar, Leistung Energie, Mr Chen, Mr Albert Foo or Mr Dominic Foo were agents of Huatech. 541 Clause 12.1 of the 2018 OEM Agreement provided: The relationship between the Parties established by this Agreement is that of independent contractors, namely Huadian, and LEISTUNG. As such, subject to the rights retained or granted and the obligations undertaken by each party pursuant to this Agreement, each party shall conduct its business at its own initiative, responsibility and expense and shall have no authority to incur any obligations or liability on behalf of the other party. Nothing in this Agreement shall constitute a partnership between Huadian, and LEISTUNG. [Emphasis in original.] 542 Clause 2.2 of the Timestar Distribution Agreement provided: [Timestar] shall operate its business in line with the scope outlined by this Agreement as an independent entity and shall be liable for all costs, expenses and debts incurred by its business operations. [Timestar] will not be named as an "agent", "employee" or "partner or other titles whatsoever unless notified by Huatech in writing. [Timestar] must not act as [Huatech's] "agent', "employee" or "joint venturer" or the likeness. Further [Timestar] must not make any quotations, write any business letters or make any promises on behalf of [Huatech]. 543 Clause 2.1 of each of the Timestar Consulting Agreements provided: Nothing contained in this Agreement shall be construed to make [Timestar] the agent for [Huatech] for any purpose, and neither party hereto shall [sic] any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. [Timestar] specifically agrees that it shall have no power or authority to represent [Huatech] in any manner; that it will solicit orders for the Products in accordance with the terms of this Agreement and that it will not at any time represent [Huatech] orally or in writing to any person or corporation or other business entity that it has any right, power or authority not expressly granted by this Agreement. [Emphasis in original.] 544 The "Products" were identified in Schedule 1 to each of the Timestar Consulting Agreements as: "12kV, 24kV, 40,5kV AMS & VEP". 545 Mr Zhu agreed with the proposition put to him by Mr Cooke in cross-examination that: So - all right. But you do accept that Albert Foo, for all intents and purposes, is the person who has contact with you, as the general manager of [Huatech], on behalf of Leistung Energie, which is distributing your product within Australia? 546 Mr Zhu then gave evidence that he had not spoken with Mr Albert Foo since April 2018. Mr Zhu had the following exchange with his cross-examiner when he was challenged about Mr van Wijk raising concerns with him in March 2018 about Mr Albert Foo telling customers that they had to buy Huatech Products exclusively through him: Now, in the meeting of 25 March 2018, Mr van Wijk raised the concerns that Mr Foo was telling clients that they had to buy product through him exclusively. THE WITNESS: Mr Interpreter? Okay. First, I didn't know whether Albert Foo contact ..... customer client or not. I don't know. Second, Albert Foo is not Huatech employee. Albert Foo company not belong to Huatech. I have no power to limited Albert Foo to anything. So what I do is follow the requirements of Dean van Wijk. First, I allow to directly sells ..... second, I let Jack Yang to follow the coming project of POWINS. Actually, I will not talk about Martin Chen or Albert Foo about the issue of the client ..... I don't need that. Am I clear or - - - , MR COOKE: Well - - - THE WITNESS: What my action is … agree the process of requirements of POWINS. But I cannot do furthermore. 547 The respondents' submission that the unexplained failure of Huatech to call Mr Albert Foo or Mr Chen as witnesses in the proceedings "should invoke an adverse inference being drawn by the Court that any evidence that they would have given would have been detrimental to the Huatech case" on the alleged agency of Mr Albert Foo and Mr Chen cannot be accepted. 548 The submission misstates what is commonly referred to as the rule in Jones v Dunkel. The effect of the rule in that case is that an unexplained failure by a party to call a witness to give evidence on a disputed factual issue in a proceeding may permit a court to draw an inference that the evidence would not have assisted that party's case: Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) at 320-1 (Windeyer J); Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [134] (Callinan J). The rule only applies in circumstances where a party is "required to explain or contradict" something: Jones v Dunkel at 321 (Windeyer J). The correct inference is only that if the rule otherwise applies, the evidence would not have assisted a party's case, not that it would have been detrimental to it. 549 Moreover, an absence of any probative evidence cannot be cured by the drawing of a Jones v Dunkel inference. The rule cannot be relied upon to make good gaps in evidence or to convert conjecture and suspicion into inference: Jones v Dunkel at 308 (Kitto J), 312 (Menzies J), 320-1 (Windeyer J). The absence of any evidence that Mr Albert Foo and Mr Chen had been authorised by Huatech to distribute the Pipers Letters or the Litigation Statement to the respondents' customers or prospective customers or that either was the servant or agent of Huatech cannot be remedied by the drawing of a Jones v Dunkel inference. The respondents' authority or agency case did not rise above conjecture and suspicion. There was nothing that Huatech was "required to explain or contradict", even if Mr Albert Foo and Mr Chen would be expected, if necessary, to have been called by Huatech rather than the respondents or they were more available to Huatech than the respondents: Jones v Dunkel at 321 (Windeyer J); Payne v Parker [1976] 1 NSWLR 191 at 201-2 (Glass JA); Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 259 (Wilcox J). 550 Nor am I satisfied that the respondents have established their contentions advanced in the Amended Cross-Claim at [26d] and [26e] that a servant or agent of Huatech published or distributed a copy of the Litigation Statement to the customers and potential customers of the respondents in Western Australia and that Mr Albert Foo, in his capacity as a servant or agent of Huatech, personally hand delivered the Litigation Statement to customers and potential customers of the respondents in Western Australia. 551 As explained above, Mr Albert Foo was not a servant or agent of Huatech.

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Submissions 552 The respondents submit the Announcement Inferences were misleading or deceptive and false or misleading because at all times the respondents were free to act and engage with the market without any restrictions and any inference that the respondents had engaged in any unlawful conduct was incorrect. 553 The respondents submit that the March Pipers Letter Inferences and the October Pipers Letter Inferences (together, Pipers Letter Inferences) are not a reflection of the facts, matters and circumstances at the time and, as such, Huatech has misled and/or deceived Powins' customer base. 554 The respondents submit that the Litigation Statement Inferences are similar to the Pipers Letters Inferences. I therefore infer they submit that they also are not a true reflection of the facts, matters and circumstances at the time and, as such, Huatech has misled and/or deceived Powins' customer base 555 In summary, the respondents submit that each of the Announcement, Pipers Letters and Litigation Statement Inferences was misleading or false in that the respondents had not undertaken any steps in contravention of any laws or agreements. The respondents, however, accept that this submission is primarily founded on an alleged failure by Huatech to make out the claims that it advance in the 2FASOC. 556 Huatech submits that the Inferences either did not arise from the Huatech Publications or were not misleading or false in any material sense. 557 Huatech submits that, even if the 2016 Distribution Agreement terminated on 10 February 2019 rather than 1 February 2019, nothing in the Announcement could have led a purchaser or potential purchaser into relevant error during the period between 1 and 10 February 2019. Further, the evidence shows that, after 1 February 2019, end users did in fact ask Powins whether they were still able to distribute the Huatech Products and that, in any event, if the correct date were 10 February 2019, it would be a significant extension of s 18 to conclude that communicating a mutual erroneous assumption that a three-year agreement had terminated nine days earlier than it in fact did was to contravene the norm of conduct prescribed thereby.

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Consideration 558 As explained above, I have found that only the following inferences arose from the Huatech Publications: (a) the respondents do not have authority to sell the Switchgear Panels or Circuit Breakers in Australia (Announcement); (b) the respondents are no longer affiliated with Huatech (Announcement); (c) Huatech has an exclusive right to use the term AMS (Pipers Letters); (d) the New Powins Products were not of the same quality or standard of the Huatech Products and were technically inferior (March Pipers Letter); and (e) Huatech holds a registered trade mark of AMS (October Pipers Letter). 559 A representation to the effect that the respondents did not have authority to sell the "Switchgear Panels" or "Circuit Breakers" in Australia was not misleading or false in the context of the Announcement because it was directed at the change in the distribution arrangements for the Huatech Products. It did not suggest or otherwise imply that the respondents did not have the authority to sell the New Powins Switchgear Panels or the New Powins Circuit Breakers. 560 A representation that the respondents are no longer affiliated with Huatech was true and in no sense misleading or false. Powins ceased to be a distributor of the Huatech Products from February 2019 following the termination of the 2016 Distribution Agreement and the 2018 Sales Contract. In the context of Huatech's accrued rights, I am not persuaded that a representation that Huatech had the exclusive right to use the term AMS was misleading or false. 561 I am not satisfied that there is sufficient evidence to be able to reach any definitive conclusion on whether a representation that the products being sold by the respondents from 8 March 2019 pursuant to the 2019 Gelpag Distribution Agreement were not of the same quality or standard as the products manufactured by Huatech and were in fact technologically inferior. I accept that there was some evidence of additional or different features in the New Powins Products, particularly in the Publications, but the existence of additional or different features does not establish that one product is not objectively of the "same quality or standard" as another product or is "technologically" equal to or superior to another product. Moreover, I note that the evidence of Mr Lin disputing the alleged inferior performance characteristics of the Huatech Switchgear Panels and Huatech Circuit Breakers was not challenged. Some form of objective analysis of the various technological features and performance characteristics of the two products would be necessary before any conclusions could be reached. 562 A representation that Huatech holds a registered trade mark for AMS, however, would objectively have been false and thereby also misleading. Nevertheless, I am satisfied that Huatech was the "true owner" of the AMS mark and that it was being used as a trade mark in relation to the sale of goods. Any unauthorised use of the AMS mark may well have exposed the user to at least claims in passing off and misleading or deceptive conduct. It is not apparent how the respondents have suffered any loss or damage that could be attributable to any representation that Huatech holds a registered trade mark for AMS, not least because the October Pipers Letter included express statements that the use of the AMS trade mark by the respondents amounted to passing off and was in breach of at least s 18 of the ACL. 563 If, contrary to my findings above, the other Inferences were conveyed, I now briefly turn to consider whether each was misleading or false. 564 Representations to the effect that the respondents are likely to engage in conduct that is not "strictly" consistent with their contractual obligations and that the respondents were willing to act unlawfully and have acted unlawfully as part of their business activities would not be misleading or false given my findings that the respondents have contravened ss 18 and 29 of the ACL, engaged in passing off by making the Representations and otherwise infringed the VEP registered trade mark. 565 Similarly, for the same reasons, representations to the effect that the respondents did not have authority to sell the Huatech Products in Australia would not be misleading or false given that the contractual arrangements between Huatech and Powins had come to an end in February 2019, Gelpag AU had never had a contractual relationship with Huatech and there was no evidence that Huatech had otherwise authorised or consented to the respondents selling any Huatech Products in Australia after February 2019. 566 The inclusion of the word "deliberately" in representations that the respondents were attempting to confuse or deceive the marketplace by using the terms AMS and/or MSA for the New Powins Products into believing that the respondents continued to be affiliated with Huatech introduces an element of intention that is not a necessary element of the ss 18 and 29 ACL, passing off and trade mark infringement cases. I am satisfied, however, that the inclusion of the Affiliation Factors giving rise to the Representations in the Publications and Customer Communications and the absence of any plausible denial or rebuttal by the respondents of the existence of a deliberate strategy to circumvent and minimise the impact of the loss of its distribution arrangements with Huatech provides a sufficient basis to infer that the contraventions were deliberate, as I explain above in finding that exemplary damages should be awarded against the respondents. 567 I accept that if it were determined that representations were made to the following effect, each would be false or misleading: (a) the respondents should cease selling and/or distributing any switchgear panels or circuit breaker products in Australia; (b) the respondents should cease selling and/or distributing the Gelpag products in Australia, (c) if the cross-claimants do not cease selling and/or distributing the Gelpag products in Australia, then they will be sued by Huatech and lose any profits that they make from selling the Gelpag products in Australia; and (d) Huatech is entitled to any profits that are made by the respondents as a result of the 2019 Gelpag Distribution Agreement. 568 Each representation would be false or misleading if, contrary to my findings above, it had been made, because the Huatech Publications were directed at the Huatech Products. In context, the references to the "Gelpag products" must be a reference to the New Powins Products. There was no allegation nor any evidence that the respondents were continuing to sell or distribute the Huatech Products after February 2019. Huatech was not objecting to the respondents selling and distributing the New Powins Products or claiming any entitlement to profits generated from the sale of the New Powins Products.

[99]

Legal principles 578 Section 21 of the ACL provides that: (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person; or (b) the acquisition or possible acquisition of goods or services from a person; engage in conduct that is, in all the circumstances, unconscionable. 579 Section 22 of the ACL provides a series of considerations to which the Court may have regard for the purpose of determining whether a person has contravened s 21 of the ACL. 580 Although s 22 of the ACL expressly informs s 21, it has been held that s 21 requires unconscionability to be determined "in all the circumstances" and it has been held that an "atomistic approach" that takes each of the factors in s 22(1) and considers them only separately is not sufficient: Australian Competition and Consumer Commission v Medibank Private Ltd (2018) 267 FCR 544; [2018] FCAFC 235 at [235] (Beach J, Perram J agreeing at [102] and Murphy J agreeing at [103]). 581 The Full Court has observed that the predecessor to s 21 of the ACL, s 51AC of the TPA, is "directed not to conduct in trade or commerce generally, but rather to conduct in trade or commerce in connection with a particular kind of transaction", namely "the supply or acquisition of goods or services as between stipulated categories of persons". The section is "not concerned with the impact of conduct on third parties" but rather with "the effect of conduct on a party to whom the respondent supplies or from whom the respondent acquires goods and services": Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; [2002] FCAFC 197 (Monroe Topple) at [114]-[117] (Heerey J, Black CJ agreeing at [2]); Transerve Pte Ltd v Blue Ridge WA Pty Ltd [2015] FCA 953 (Transerve) at [275] (Barker J) at [275]. 582 The Full Court (Allsop CJ, Besanko and McKerracher JJ) in Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 (Quantum), at [92], stated that in approaching the question of unconscionable conduct under s 21 of the ACL: The task is an evaluation of the impugned conduct to assess whether it is to be characterised as a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience and so be characterised as unconscionable. In any particular case, it should be recognised that if the evaluative answer be "no: it is not unconscionable", the court is concluding that by an Australian business conscience the conduct is conscionable and not to be deterred by penalty. 583 In this context the Full Court in Quantum referred at [55] to Gageler J's observations in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 (Kobelt) at [87], drawn from Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 (Lux) at [23] and [41] (Allsop CJ, Jacobson and Gordon JJ): The correct perspective is that s 12CB [s 21] operates to prescribe a normative standard of conduct which the section itself marks out and makes applicable in connection with the supply or possible supply of financial services. The function of a court exercising jurisdiction in a matter arising under the section is to recognise and administer that normative standard of conduct. The court needs to administer that standard in the totality of circumstances taking account of each of the considerations identified in s 12CC [s 22] if and to the extent that those considerations are applicable in the circumstances. 584 Vulnerability or disadvantage may exist but is not required for a s 21 unconscionable conduct contravention. The Full Court stated in Quantum at [4] that, whilst some form of exploitation of or predation upon some vulnerability or disadvantage of people will often be a feature of conduct which satisfies the characterisation of unconscionable conduct under s 21 of the ACL, it is not a necessary feature of the conception or a necessary essence in the embodied meaning of the statutory phrase. 585 The focus must therefore be on the conduct, and whether it was unconscionable. 586 The concepts of special disadvantage and unconscientious exploitation of such a disadvantage remain at the heart of the equitable doctrine. As summarised by Nettle and Gordon JJ in Kobelt at [146]-[147]: Relief under the doctrine of unconscionable conduct requires that the innocent party was subject to a special disadvantage in dealing with the other party when the transaction was entered into, "which seriously affect[ed] the ability of the innocent party to make a judgment as to [their] own best interests; and that the other party unconscientiously took advantage of that special disadvantage. The existence of those circumstances at the time of the transaction is what "affect[s] the conscience" of the stronger party and renders the enforcement of the transaction, or the taking of the benefit, "unconscientious" or "unconscionable". It is not possible to identify exhaustively what amounts to a special disadvantage. However, the essence of the relevant weakness is that it 'seriously affects" the innocent party's ability to safeguard their own interests. [Footnotes omitted, quoting Commonwealth Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14 at 462 (Mason J).] 587 A determination of unconscionability involves a broadly-based value judgment, applied to the facts on which reliance is placed, to the extent that they are proved: Lux at [23] (Allsop CJ, Jacobson and Gordon JJ). 588 The High Court considered what type of conduct will be characterised as unconscionable in Kobelt. Chief Justice Kiefel and Bell J, at [14], cited the following values as informing the standard of conscience fixed by the statute, from the reasons of Allsop CJ in Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 (Paciocco) at [296]: ... certainty in commercial transactions, honesty, the absence of trickery or sharp practice, fairness when dealing with customers, the faithful performance of bargains and promises freely made, and: "The protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage". [Footnotes omitted.] 589 In Kobelt, Nettle and Gordon JJ said at [234]: The assessment of whether conduct is unconscionable ... involves the evaluation of facts by reference to the values and norms recognised by the statute, and thus, as it has been said, a normative standard of conscience which is permeated with accepted and acceptable community standards. It is by reference to those generally accepted standards and community values that each matter must be judged.

[100]

Submissions 590 The respondents' claims under s 21 of the ACL and in equity rely on the same matters, on their own, or in combination: (a) the representations alleged to have been made by Huatech in the Huatech Publications; (b) the inferences alleged to arise from each of the Huatech Publications; and (c) the alleged conduct by Huatech (by itself or by its servants or agents) in causing to be published or authorising to be published each of the Huatech Publications using the pleaded "Confidential Information" of the respondents to do so. 591 The respondents submit that the acts of prematurely disseminating private documentation, the subject of a legal dispute, to a company's competitors satisfies the criteria for unconscionability where it was clear that this dissemination was done with the intention of reducing consumption of Powins' products by its customers in a competitive marketplace in which Huatech's agent also operated and stood to benefit from reduced consumption of Powins' products. 592 The respondents submit that the conduct of Huatech in failing to keep the Pipers Letters confidential and/or to make them available to a servant or agent for dissemination would be unconscionable. They accept that each publication may have limited impact, but they submit that, when taken as a whole course of conduct, it would amount to conduct that was intended to create confusion and doubt for the respondents' clients and would amount to unconscionable conduct. 593 The respondents submit that: (a) the Litigation Statement was made well after Huatech knew or ought to have known of the two emails publishing the Pipers Letters; (b) no correction or clarification was provided to the clients or the market that received the Pipers Letters; (c) the Pipers Letters arose because Huatech made available solicitor's draft correspondence to a party who could take advantage of such correspondence to damage the respondents in the Australian market; and/or (d) despite the March Pipers Letter being distributed in the Australian market, Huatech took no steps to ensure that any future solicitor's correspondence could not be used in malice or with the intention of disrupting the respondents' business in Australia. 594 Huatech advances the following specific submissions in response to the s 21 ACL unconscionable conduct claim. 595 First, Huatech submits that by pleading only s 22 of the ACL, the respondents have opted to confine their statutory unconscionability case to the s 22 list of considerations insofar as they inform s 21, and that there is therefore a threshold difficulty in understanding any claim based on ss 21 and 22. 596 Second, Huatech submits that there is no coherent s 21 claim on the basis of the principles explained in Monroe Topple and Transerve. 597 Third, Huatech submits that, being based on an allegation of misuse of pleaded confidential information, the respondents' unconscionability claims fail at the threshold because the Court cannot find that Huatech either received or misused customer email addresses or that it sent the publications to Huatech's customers or potential customers. 598 Fourth, Huatech submits that the alleged sending by "a servant and/or agent" of Huatech of the March Pipers Letter or a previous draft of the October Pipers Letter was not conduct in trade or commerce in connection with the supply or possible supply of goods or in connection with the promotion or the supply or use of goods. 599 Fifth, Huatech accepts that the publication of the Announcement and Litigation Statement was conduct in trade or commerce in connection with the supply or possible supply of goods or in connection with the promotion or the supply or use of goods but submits that it remains unclear how the relevant conduct is "in connection with" supply to or acquisition by the respondents in the sense required by ss 21 and 22, as the Amended Cross-Claim does not allege supply to a person at all. 600 Sixth, Huatech submits with respect to both the s 21 unconscionable conduct claim and the unconscionable claim in equity that, to the extent the respondent relies on allegations that a "servant or agent" of Huatech distributed any of the Huatech Publications as part of its unconscionability case, then that part of the unconscionability case also fails as there is no evidence nor basis upon which to infer that a servant or agent of Huatech disseminated the Huatech Publications in Australia on its behalf, let alone used customer contact information provided by the respondents to Huatech to do so.

[101]

Consideration 601 The respondents have relied on the same conduct for their ACL statutory and equitable unconscionable conduct cases and pleaded them in the same terms. 602 Both the ACL statutory and equitable unconscionable conduct cases are alleged in the particulars to the Amended Cross-Claim to comprise with respect to each of the four Huatech Publications pairs of action first, the preparation of a document making false, misleading or deceptive statements and second, an action of improperly distributing the documents to the respondents' customers. 603 The respondents, however, do not advance in the Amended Cross-Claim, the particulars to the Amended Cross-Claim or in submissions any legally coherent ACL statutory or equitable unconscionable conduct cases. 604 The respondents have not advanced any coherent case as to how any distribution of the Huatech Publications could be construed as being in connection with the supply or possible supply of goods or services to them by Huatech, or the acquisition or possible acquisition, of goods or services by them from Huatech. 605 In order to bring a cause of action within s 21 of the ACL claim it is necessary to demonstrate that the conduct of the party alleged to have acted unconscionably had an effect on another party in connection with the supply or acquisition of goods or services to or from them. In this case it would require the respondents to establish that the alleged authorisation by Huatech of the dissemination of the Pipers Letters to customers of the respondents could be characterised as conduct made in connection with a supply or acquisition of services between Huatech and the respondents. 606 It is not enough to demonstrate that the impugned conduct might have had an effect on the respondents. The respondents contend that Huatech's authorisation of the dissemination of the Pipers Letters to the respondents' customers was provided with the intention of reducing consumption of Powins' products by its customers in a competitive marketplace in which Huatech's agent also operated and stood to benefit from reduced consumption of Powins' products. This contention, however, if otherwise established, only proves an effect of the alleged conduct of Huatech on the respondents. 607 Nor do the respondents advance in the Amended Cross-Claim, the particulars to the Amended Cross-Claim or in submissions any legally coherent equitable unconscionable conduct case. 608 First, the respondents have not advanced any coherent case as to how any alleged authorisation by Huatech of the provision of the Pipers Letter to the respondents' customers could involve the taking advantage of any special disability or disadvantage. 609 An unconscionable conduct case in equity under the unwritten law requires the establishment of a special disability or disadvantage. The respondents' contention at [10d] in the further particulars they provided to the Amended Cross-Claim that they were at "a disadvantage because [Huatech] had used confidential information to distribute the misleading and/or damaging cease and desist letters and statements without notifying or allowing [the respondents] to provide a response" falls well short of any recognisable concept of "taking advantage of a special disability or disadvantage". The mere fact that a party is unaware of a matter that is material to its interests is not a special disadvantage, relief would only arise if the lack of awareness arose from a special disadvantage, such as mistake or misrepresentation: JD Heydon, Heydon on Contract: The General Part (2019) at [18.220], citing Turner v Windever [2005] ANZ Conv R 214; [2005] NSWCA 73 at [72]-[73] (Giles JA). 610 Second, the respondents have not identified any "overbearing of their will" by Huatech. As Mason J, as his Honour then was, stated in Commonwealth Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14 (Amadio) at 461, when addressing unconscionability in equity under the unwritten law: Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest. 611 The respondents in their closing written submissions describe Amadio as a "leading authority" on the meaning of unconscionability but do not explain how it could be said that the alleged dissemination or authorisation of the dissemination of the Huatech Publications involved any overbearing of the will of the respondents that was not independent and voluntary, or indeed any overbearing of the will of the respondents. 612 The respondents have sought to frame both their statutory and equitable unconscionability cases as claims that Huatech had prematurely disseminated "private documentation, the subject of a legal dispute, to a company's competitors" with an "intention" of "reducing consumption of Powins' products" by its customers in a competitive marketplace but did not articulate or advance any plausible case directed at establishing "premature dissemination" or any "intention" by Huatech to "reduce consumption" of Powins' products. To the contrary, given their content, I am satisfied that the statements made in the Huatech Publications were measured and proportionate defensive steps taken by Huatech in response to the conduct of the respondents. The Huatech Publications evidenced an unexceptional concern by Huatech to protect the goodwill and reputation that it had established in its AMS branded switchgear panels and VEP branded circuit breakers. That objective could not objectively be characterised as "unfair or unreasonable", "showing no regard for conscience" or "conduct involving dishonesty, sharp practice or conscious wrongdoing". 613 Further, even assuming that the respondents had established, contrary to the findings that I have made above, that Huatech had authorised the distribution of the Pipers Letters from the "email address of unknown origin" it is difficult to see how that would have been unconscionable in circumstances where it could not reasonably be suggested that an entity that was concerned that its goods or services were being passed off by a competitor, could not write in an open fashion to its customers setting forth its concerns. Indeed, counsel for the respondents accepted in his oral opening address, when it was put to him, that the respondents were not suggesting that it would be unconscionable if the dissemination of the Pipers Letters had taken place by a communication: on the letterhead of the solicitor, sent from the solicitor's email address directly to the customer and had pointed out that, in effect, "We're writing to you because we are concerned and, by the way, we put you on notice. We've written directly to the solicitors for POWINS in these terms:" and then inserted the content of the letter to the solicitors. 614 Finally, there was no evidence to support any conclusion that any of the pleaded conduct resulted in any damage to either respondent.

[104]

Legal principles 618 In BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, the Privy Council described five criteria for the implication of a term into a contract which must be satisfied. The proposed implied term must: (a) be reasonable and equitable; (b) be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (c) be so obvious that "it goes without saying"; (d) be capable of clear expression; and (e) not contradict any express terms of the contract. 619 These five requirements have been described as "conditions necessary" for the implication of an implied term: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347 (Mason J, Stephen J agreeing at 344 and Wilson J agreeing at 392). 620 Justice Edelman noted in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 at [1003] that one of the difficulties with the implication of a term of "good faith" is that although it has been expressly recognised across many different legal contexts over a long period of time, across both civil and common law, it is a principle that can "mean different things in different contexts". His Honour also accepted, at [1006], the conclusion propounded by the Victorian Court of Appeal in Androvitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212 at [108] that they did "not accept that an obligation of good faith should be implied indiscriminately into all commercial contracts" for two reasons: (a) questions of implication, like those of construction, require close focus upon the terms of the contract itself; and (b) the potential for the content of "good faith" to differ from one contractual context to another. 621 Whilst the meaning of a duty of "good faith" in Australian contract law is not settled, it was described in the case of Paciocco by Allsop CJ (with whom Besanko and Middleton JJ agreed) in the following terms at [288]: [A]n obligation to act honestly and with a fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at time conflict) and to the provisions, aims and purposes of the contract, objectively ascertained. 622 As the Full Court (Finn, Sundberg, Jacobson JJ) explained in Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21, at [39], in order to establish that an equitable obligation of confidence with respect to information arises, an applicant must establish the following four elements: (a) the information must be identified with specificity; (b) it must have the necessary quality of confidence; (c) it must have been received in circumstances importing an obligation of confidence; and (d) there must be an actual or threatened misuse of the information without consent. 623 Whether information has the necessary quality of confidence is a question of fact. In Del Casale v Artedomus (Aust) (2007) 165 IR 148; [2007] NSWCA 172, at [40], Hodgson JA (McColl JA agreeing) stated: In Wright v Gasweld, at NSWLR 334; IPR 489, Kirby P listed some factors that helped in determining whether information may be considered confidential. That list has been expanded by R Dean, The Law of Trade Secrets and Personal Secrets, 2nd ed, Lawbook Co, Sydney, 2002 at p 190 to include: 1. The extent to which the information is known outside the business. 2. The extent to which the trade secret was known by employees and others involved in the plaintiff's business. 3. The extent of measures taken to guard the secrecy of the information. 4. The value of the information to the plaintiffs and their competitors. 5. The amount of effort or money expended by the plaintiffs in developing the information. 6. The ease or difficulty with which the information could be properly acquired or duplicated by others. 7. Whether it was plainly made known to the employee that the material was by the employer as confidential. 8. The fact that the usages and practices of the industry support the assertions of confidentiality. 9. The fact that the employee has been permitted to share the information only by reason of his or her seniority or high responsibility. 10. That the owner believes these things to be true and that belief is reasonable. 11. The greater the extent to which the "confidential" material is habitually handled by an employee, the greater the obligation of the confidentiality imposed. 12. That the information can be readily identified. 624 Information may be confidential even if it is derived from material that is readily available if a person has used their intelligence to produce a result that can only be replicated if somebody undertakes the same process: Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215 (Lord Greene MR); see also Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 49 (Gowans J); Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111 at [97] (Giles JA, Priestley and Meagher JJA agreeing). An inference may arise that information is not confidential if it is mixed with information that is not confidential: Faccenda Chicken Ltd v Fowler [1987] Ch 117 at 138 (Kerr, Neill and Nourse LJJ). 625 Customer lists has been held to constitute confidential information: DC Payments Pty Ltd v Next Payments Pty Ltd (2016) 51 VR 151; [2016] VSC 315 (DC Payments) (Vickery J); Gold Titan Pty Ltd v Lopez [2021] FCA 918. 626 In DC Payments, the applicant and respondent were competitors in the supply of automatic teller machines. The applicant brought proceedings against the respondent for breach of confidence. The respondents sought to strike out the proceedings on the basis that the applicant had used the respondent's confidential information in bringing the proceedings. 627 The respondent maintained a customer list, described as a "Master Customer List". The Master Customer List recorded details of each merchant with whom the respondent had a contract. It was inadvertently provided, as an attachment to an email, to an outdated email address of a former employee of the applicant that caused the Master Customer List to be automatically forwarded to a manager of the applicant. The email was marked on its face "confidential and internal to [the respondent]". The applicant took steps to quarantine the Master Customer List. It was stored on a secure drive and only the applicant's lawyers had access to it. It was subsequently included on a list of documents discovered by the applicant. 628 After considering the relevant principles relating to the confidentiality of information, Vickery J concluded at [61]: I find that the Master Customer List was a detailed and carefully drafted document that is of considerable value to Next Payments. It was also of considerable value to any competitor of Next Payments. The fact that the document contains, in addition to sensitive commercial information, the names of its customers that is ultimately information which is in the public domain, does not detract from its essential characteristic as being confidential. 629 Justice Vickery was satisfied that the Master Customer List was a "product of skill, effort and ingenuity" on the part of the respondent and its employees, and represented confidential information: at [63]. In reaching this finding, his Honour placed particular emphasis on the evidence that the Master Customer List was guarded by various internal measures, it was plainly made known to the respondents' employees that the material was regarded by the respondent as confidential, it contained all of the information about merchants who had contracts with the respondent, the employee who had shared the information was only permitted to do so due to their seniority and level of responsibility and a competitor, such as the applicant, was likely to be advantaged if it obtained access to the information: at [64]. 630 After considering the factual context in which the amendments to the pleading were formulated and advanced, Vickery J concluded that a clear inference could be drawn in the circumstances that the applicant had used the Master Customer List for the purpose of re-drafting its pleadings in both the proceedings and related proceedings: at [68]-[71]. His Honour made orders striking out paragraphs of the pleadings that had been amended and consequential orders to redress any advantages that had otherwise been obtained by the applicant: at [85]-[86], [89].

[105]

Submissions 631 The respondents submit that Huatech breached: (a) clause 13.4 of the 2018 Sales Contract by disseminating confidential information and acting otherwise than in good faith; and (b) an implied term to act with good faith in the 2016 Distributor Agreement and the 2018 Sales Contract by acting otherwise than in good faith. 632 The respondents submit that the respondents' customer list, the telephone numbers, and emails constituted confidential information for the purposes of cl 13.4 of the 2018 Sales Contract and that the use of the confidential information is a breach of the term of good faith as well as a breach of the express term of confidentiality. 633 In addition, the respondents submit that the arbitration clause at the end of the 2016 Distribution Agreement and the 2018 Sales Contract has been waived by Huatech commencing litigation, and that it is on that basis that the arbitration clause does not survive the contract in this instance. 634 The respondents allege four instances of conduct in which Huatech either by itself or by a servant or an agent published one of the Huatech Publications to the respondents' customers or potential customers in 2019 and 2020 using the respondents' "Confidential information". 635 The alleged conduct relied upon by the respondents is the publication: (a) of the Announcement by Mr Ye on behalf of Huatech on around 4 February 2019; (b) the March Pipers Letter using the Confidential Information by an unnamed "servant and/or agent" of Huatech on or around 29 March 2019 from the email address "lawyersfirmaustralia@gmail.com"; (c) of a "previous draft of the October Pipers Letter" and the October Pipers Letter using the "Confidential Information" by an unnamed "servant and/or agent" of Huatech on or around 4 December 2019 from the email address "lawyerswa19@gmail.com"; and (d) the Litigation Statement to the customers and potential customers of the respondents in Western Australia. 636 The respondents allege that the Litigation Statement was distributed by a servant and/or agent of Huatech and, further that Mr Albert Foo, in his capacity as a servant and/or agent of Huatech, personally hand delivered the Litigation Statement to customers and potential customers of the respondents in Western Australia. 637 Huatech submits that there is no evidence the respondents designated any information to be confidential other than in relation to one discrete project, which was for a limited duration and did not involve customer email addresses. Further, it submits that there is no evidence that Huatech received such information from the respondents or in any way used it, whether itself or via a servant or agent. 638 Further, Huatech submits that the respondents have not established that Huatech had in its possession the email addresses of any of the recipients of those documents. 639 Regarding the four instances of publication of documents, Huatech: (a) submits that Mr Albert Foo did not disseminate the Announcement as Huatech's servant or agent; (b) denies that the March Pipers Letter was published by an unnamed servant and/or agent of Huatech using any confidential information of the respondents; (c) denies the October Pipers Letter allegation; and (d) as explained above, admits publication of the Litigation Statement, that the Litigation Statement was unsigned and purported to be from Huatech, and that it was published on Huatech's letterhead and under its company seal. Huatech also admits that the Litigation Statement contains the contact details of Mr Ye of Huatech and that Mr Ye is a Chinese national domiciled in China. However, Huatech denies using "Confidential Information" in publishing it. 640 Huatech submits that it has maintained an extensive historical sales record identifying customers and projects serviced by Huatech from as early as 2007, well before the 2016 Distribution Agreement was entered into. 641 Huatech submits that cl 13.4 refers to "commercial secrets"; it does not refer to "confidential information". It submits that a "client list" (if one existed in this case) would not be a commercial secret even if it were confidential. 642 Huatech submits that the respondents do not identify any specific information said to be confidential, there is no reference to any evidence of any information being designated as confidential, and no submissions are directed to establishing confidentiality of information as a matter of law. 643 Further, Huatech submits that there is no evidence that the respondents ever communicated pleaded "email contact details of persons employed by customers of" the respondents to Huatech on a confidential basis, and that while Huatech received a discrete number of customer names and project names from Powins sporadically, this was never subject to a confidentiality claim. 644 Huatech submits that there is no evidence to support any inferential case that the circumstances of any particular communication imported an obligation to treat pleaded customer information as confidential. 645 Huatech submits that the respondent's breach of contract case has not been clearly articulated.

[106]

Arbitration Clauses 646 The respondents submit that the arbitration provisions in cl 13.1 of the 2016 Distribution Agreement did not survive termination by reason of cl 12.8. Clause 12.8 provides for the cessation of "further rights and obligations" of the parties, but specifies that "clauses 6.2, 6.4 and 10, together with those clauses the survival of which is necessary for the interpretation or enforcement of this Agreement, shall survive termination or expiration of this Agreement, and shall continue in full force and effect". 647 Huatech submits that the arbitration clauses in both the 2016 Distribution Agreement and the 2018 Sales Agreement preclude Powins from bringing the contract claims as they contain express terms requiring any contractual claim to be "referred to and finally resolved by arbitration at the Hong Kong International Arbitration Centre" or "settled through friendly negotiations or, failing that, submitted for arbitration in Stockholm at the Arbitration Institute of the Stockholm Chamber of Commerce". 648 Huatech submits that each of the arbitration clauses operates to disentitle Powins from seeking relief in this court (that is, they operate as a bar to any claim) for breach of those agreements. 649 Huatech submits that, properly understood, cl 13.1 of the 2016 Distribution Agreement is not a clause providing for "further rights and obligations" - it is an enforcement provision that operates as a bar. It submits that it is therefore unaffected by cl 12.8, either because cl 12.8 does not capture cl 13.1 prima facie, or because cl 13.1 is within the exception for "clauses the survival of which is necessary for the interpretation or enforcement of [the] Agreement". 650 Huatech submits that that interpretation is the only commercially sensible one, particularly given that cl 13.1 is expressed as applying to "any question regarding [the Agreement's] existence, validity, interpretation, breach or termination", and that it would be commercially nonsensical if an arbitration clause (plainly an "enforcement" term) that covered questions regarding termination of the agreement did not itself survive termination. If that were the case, it submits, clearly a party could frustrate an arbitration clause by terminating (or repudiating) the contract or waiting until after its expiry to raise disputes regarding breaches in Court. 651 As to the respondents' apparently separate contention that the cause of action and relief relates to conduct that occurred by the parties at a time when the agreement had expired, Huatech submits that: (a) if all of the relevant conduct occurred after the 2016 Distribution Agreement had expired, it is not clear why the arbitration clause would not operate. If this is a contention by Powins that it cannot bring a claim in respect of conduct that occurred after the 2016 Distribution Agreement expired, then Huatech would accept that contention and the claim would fail. If not, Powins has not explained what is meant beyond the argument about the survival of the arbitration clause; (b) it is not clear on what basis Powins contends that the relevant conduct (alleged to have occurred in 2019 and 2020) occurred at a time when the 2018 Agreement had expired. The 2018 Sales Agreement states that it is valid until 31 December 2020. If Powins contends that the 2018 Sales Agreement expired at some earlier date (for example, when the 2016 Distribution Agreement expired), it should articulate the basis on which that is said to be the case; and (c) further, if the conduct did occur after the 2018 Sales Agreement had expired, Powins has not articulated how it is said that the arbitration clause in the 2018 Sales Agreement would not operate. 652 Huatech further submits that Gelpag AU has no standing to bring the contract claims as it was not a party to either the 2016 Distribution Agreement or the 2018 Sales Contract, and that no implied term of cooperation and good faith in the 2016 Distribution Agreement or the 2018 Sales Contract survived termination of either or both of those agreements.

[107]

Consideration 653 I am not satisfied that the respondents have established the breach of contract claims that they seek to advance in the cross-claim for the following reasons. 654 First, the respondents have not articulated the basis, scope or content of any implied term of cooperation and good faith. Contrary to the respondents' submissions, Huatech has not admitted any implied term of confidentiality. Moreover, I do not accept in the light of the Representations made by the respondents in the Publications and the Customer Communications and Gelpag AU's trade mark applications that any dissemination of the Huatech Publications, given their tone and content, to any customers or potential customers of the respondents would contravene any implied term of cooperation and good faith. 655 Second, the "Confidential Information" pleaded by the respondents is confined to "email contact details" of persons employed by customers of the respondents. No confidential customer list is pleaded. In any event, no customer list was identified in evidence. Further, no confidential email addresses or telephone numbers were proved in evidence. 656 Third, cl 13.4 of the 2018 Sales Contract refers to "commercial secrets" not "confidential information". No evidence was elicited in the course of the hearing that any information was designated confidential by Powins, much less a "commercial secret" under the 2018 Sales Contract. 657 Fourth, there was no pleaded case based on Huatech "making information available to the servants or agents of [Huatech]", nor was any evidence elicited in the course of the hearing that Huatech had provided or otherwise made available to its servants or agents any customer list or email contact details of persons employed by customers of the respondents. Nor am I satisfied that the respondents have established that Mr Albert Foo and Leistung Energie were relevantly Huatech's "servant and/or agent". 658 Fifth, Gelpag AU as no standing to bring any contract claims because it was not a party to either the 2016 Distribution Agreement or the 2018 Sales Contract. 659 Further, and in any event, I accept that the arbitration clauses in the 2016 Distribution Agreement and the 2018 Sales Contract survived the termination of both agreements. 660 I accept that Huatech's interpretation of the arbitration clauses is the only commercially sensible one. Clause 13.1 of the 2016 Distribution Agreement is expressed as applying to "any question regarding [the Agreement's] existence, validity, interpretation, breach or termination". Clause 12.8 provides for the cessation of "further rights and obligations" of the parties following termination but cl 13.1 is not a clause providing for "further rights and obligations". Clause 13.1 is a provision directed at the means by which questions regarding the existence, validity, interpretation or breach of the agreement can be determined. Further, cl 13.1 falls within the exception in cl 12.8 for "clauses the survival of which is necessary for the interpretation or enforcement of [the] Agreement". 661 Finally, the respondents' contention that Huatech has waived the arbitration provisions of the 2016 Distribution Agreement and the 2018 Sales Contract by commencing these proceedings is misconceived. It is the respondents, not Huatech, that have alleged and sought to litigate breaches of those agreements in these proceedings.

Parties

Applicant/Plaintiff:

Xiamen Huadian Switchgear Co Ltd

Respondent/Defendant:

Powins Pty Ltd

Legislation Cited (6)

Trade Practices Act 1974(Cth)s 54

Designs Act 2004(Cth)

Trade Marks Act 1995(Cth)ss 120, 122

Competition and Consumer Act 2010(Cth)ss 18, 21, 22, 29, 232

Federal Court of Australia Act 1976(Cth)s 21

Trade Marks Act 1955(Cth)s 66

Cases Cited (116)

Pty Ltd [1967] VR 37 Australian Competition and Consumer Commission v Medibank Private Ltd (2018) 267 FCR 544; [2018] FCAFC 235 Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ASAL 55-053; [2000] FCA 1885 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493 Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329; [2004] FCA 693 Australian Competition and Consumer Commission v On Clinic Australia Pty Ltd (1996) 35 IPR 635 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450; [2020] FCAFC 130 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 Birmingham Vinegar Brewing Co Ltd v Powell [1897] AC 710 BLH Engineering & Constructions Pty Ltd v Pro 3 Products Pty Ltd (2015) 114 IPR 105; [2015] FCA 833 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Cadbury Schweppes Pty Ltd v Pub Squash Co Ltd (1980) 32 ALR 387; [1980] 2 NSWLR 851 Calidad Pty Ltd v Seiko Epson Corp (No 2) (2019) 147 IPR 386; [2019] FCAFC 168 Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 Claremont Petroleum NL v Cummings (1992) 110 ALR 239 Coca-Cola Co v All-Fect Distributors Ltd (t/as Millers Distributing Co) (1999) 96 FCR 107; [1999] FCA 1721 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Commissioner of Taxation (Cth) v Murry (1998) 193 CLR 605; [1998] HCA 42 Commonwealth Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14 ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd [1952] HCA 15; (1952) 86 CLR 536 DC Payments Pty Ltd v Next Payments Pty Ltd (2016) 51 VR 151; [2016] VSC 315 Del Casale v Artedomus (Aust) (2007) 165 IR 148; [2007] NSWCA 172 Faccenda Chicken Ltd v Fowler [1987] Ch 117 Facton Ltd and Others v Rifai Fashions Pty Ltd and Another (2012) 199 FCR 569; [2012] FCAFC 9 Flexopack SA Plastics Industry v Flexopack Australia Pty Ltd (2016) 118 IPR 239; [2016] FCA 235 Foster v ACCC (2006) 149 FCR 135; [2006] FCAFC 21 General Electric Co (of USA) v General Electric Co Ltd [1972] 1 WLR 729 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 GM Holden Ltd (ACN 006 893 232) and Others v Paine and Others (2011) 281 ALR 406; [2011] FCA 569 Gold Titan Pty Ltd v Lopez [2021] FCA 918 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc (2020) 385 ALR 514; [2020] FCAFC 235 Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd (2018) 264 FCR 422; [2018] FCAFC 105 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111 In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (2020) 377 ALR 116; [2020] FCA 193 Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 Jones v Dunkel (1959) 101 CLR 298 Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; [2013] FCAFC 59 Kraft Foods Group Brands LLC v Bega Cheese Ltd (2020) 377 ALR 387; [2020] FCAFC 65 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; [2002] FCAFC 197 Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 Payne v Parker [1976] 1 NSWLR 191 PepsiCo Australia Pty Ltd (t/a Frito-Lay Australia) v Kettle Chip Co Pty Ltd (1996) 135 ALR 192 Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd (2017) 251 FCR 379; [2017] FCAFC 83 RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 Re An Application by the Pianotist Co Ltd for the Registration of a Trade Mark (1906) 23 RPC 774 Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 Review Australia Pty Ltd v New Cover Group Pty Ltd (2008) 79 IPR 236; [2008] FCA 1589 Ricegrowers Ltd v Real Foods Pty Ltd (2008) 77 IPR 32; [2008] FCA 639 Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 Sanders v Snell (1997) 73 FCR 569 Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Taleb and Another v GM Holden Ltd (ACN 006 893 232) and Others (2011) 286 ALR 309; [2011] FCAFC 168 Transerve Pte Ltd v Blue Ridge WA Pty Ltd [2015] FCA 953 Unilever Australia Ltd v Karounos (2001) 113 FCR 322; [2001] FCA 1132 Valve Corporation v Australian Competition and Consumer Law (2017) 258 FCR 190; [2017] FCAFC 224 Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 XL Petroleum (N.S.W.) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448

[2013] VSCA 212

[1998] HCA 42

[2016] VSC 315

[2005] QCA 199

(2020) 156 IPR 413

(2009) 262 ALR 458

(2018) 267 FCR 544

(2019) 267 CLR 1

(2004) 207 ALR 329

(1996) 35 IPR 635

(2021) 285 FCR 133

(2020) 278 FCR 450