FEDERAL COURT OF AUSTRALIA Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404 File number: VID 1157 of 2017 Judgment of: BEACH J Date of judgment: 24 November 2022 Catchwords: CORPORATIONS – fiduciary relationship – contractual relationship – South Korean manufacturer and supplier of audio-visual units – supply to Australian entity – on-supply by Australian entity to original equipment vehicle manufacturers (OEMs) – employees of Australian entity assisting South Korean manufacturer to set up Australian rival to supply OEMs – diversion of business opportunities – misappropriation of business providing in-vehicle electronic products – audio-visual units – telematic devices and telemetry services – breach of contract – exclusivity in distribution arrangements – breach of fiduciary duties – misuse of confidential information – infringement of copyright – former employees' fiduciary and contractual obligations – breaches of ss 182 and 183 of Corporations Act 2001 (Cth) – accessorial liability – knowing involvement in breach of statutory duties – claims under second limb of Barnes v Addy – dishonest conduct by former employees – participation of other entities – constructive knowledge – secret commissions Legislation: Corporations Act 2001 (Cth) ss 182, 183 Cases cited: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1 Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 Barnes v Addy (1874) LR 9 Ch App 244 Beam v Stewart 833 A 2d 961 (Del Ch, 2003) Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Canadian Aero Service Ltd v O'Malley (1973) 40 DLR (3d) 371 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Cranleigh Precision Engineering Ltd v Bryant [1964] 3 All ER 289 Crawford Fitting Co v Sydney Valve and Fittings Pty Ltd (1988) 14 NSWLR 438 Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119 Dart Industries Inc v David Bryar & Associates Pty Ltd (1997) 38 IPR 389 Dixon Projects Pty Ltd v Masterton Homes Pty Ltd (1996) 36 IPR 136 Donaldson v Natural Springs Australia Limited [2015] FCA 498 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Furs Ltd v Tomkies (1936) 54 CLR 583 Global Brand Marketing Inc v Cube Footwear Pty Ltd (2005) 65 IPR 44 Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) 225 ALR 57 Griggs (R) Group Ltd v Evans [2005] EWCA Civ 11 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 Hawkins v Clayton (1988) 164 CLR 539 Heimann v Commonwealth (1938) 38 SR (NSW) 691 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Howard v Federal Commissioner of Taxation (2014) 253 CLR 83 Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 57 Jones v Dunkel (1959) 101 CLR 298 Kovan Engineering (Aust) Pty Ltd & Ors v Gold Peg International Pty Ltd (2006) 234 ALR 241 Lumley v Gye (1853) 118 ER 749 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Mastec Australia Pty Ltd v Trident Plastics (SA) Pty Ltd (No 2) [2017] FCA 1581 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 Mense & Ampere Electrical Manufacturing Co Pty Ltd v Milenkovic [1973] VR 784 OBG Ltd v Allan [2008] AC 1 Pereira v Director of Public Prosecutions (1988) 82 ALR 217 R v Byrnes & Hopwood (1995) 183 CLR 501 Ray v Classic FM Plc (1998) 41 IPR 235 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 Royal Brunei Airlines Sdn Bhd v Philip Tan Kok Ming [1995] 2 AC 378 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 Short v City Bank of Sydney (1912) 15 CLR 148 Short v City Bank of Sydney (1912) 12 SR (NSW) 186 The Moorcock (1889) 14 PD 64 The Zamora (No 2) [1921] 1 AC 801 University of Nottingham v Fishel [2000] ICR 1462 Warman International Ltd v Dwyer (1995) 182 CLR 544 Yorke v Lucas (1985) 158 CLR 661 Zhu v Treasurer (NSW) (2004) 218 CLR 530 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 4003 Date of hearing: 9 to 13, 16 to 20 December 2019 12 to 15, 18 to 22, 25 to 29 May 2020 1 to 4, 9 to 12, 15 to 19 and 22 June 2020 15 February 2021 1 March 2021 6 to 9 April 2021 Counsel for the Applicant: Mr C Golvan QC with Mr M Wise QC and Ms N Hickey Solicitor for the Applicant: K & L Gates Counsel for the First and Sixth Respondents: Mr P Wallis QC with Mr A McRobert and Mr M Tehan Solicitor for the First and Sixth Respondents: McCluskys Lawyers Counsel for the Second, Third, Fourth, Fifth, Eighth and Twelfth Respondents: Mr M Osborne QC with Mr H Austin QC and Mr TP Warner Solicitor for the Second, Third, Fourth, Fifth, Eighth and Twelfth Respondents: Mills Oakley Counsel for the Seventh Respondent: Mr J Rudd Solicitor for the Seventh Respondent: Aptum Legal Counsel for the Tenth, Eleventh and Thirteenth Respondents: Mr A Ryan SC with Mr M Fleming and Mr R Maguire Solicitor for the Tenth, Eleventh and Thirteenth Respondents: Moray & Agnew ORDERS VID 1157 of 2017 BETWEEN: DIRECTED ELECTRONICS OE PTY LTD ACN 130 647 737 Applicant AND: OE SOLUTIONS PTY LTD ACN 119 188 019 First Respondent HANHWA AUS PTY LTD ACN 614 943 092 Second Respondent HAN HWA HIGHTECH AUSTRALIA PTY LTD ACN 153 718 435 (and others named in the Schedule) Third Respondent order made by: BEACH J DATE OF ORDER: 24 november 2022 THE COURT ORDERS THAT: 1. Within 28 days of the date of these orders, each party file and serve proposed minutes of orders and short submissions (limited to 10 pages) to give effect to these reasons. 2. Within 28 days of receipt of any such proposed minutes and submissions from a party, any other party may file responding submissions (limited to 5 pages). 3. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BEACH J: 1 Directed Electronics OE Pty Ltd has made various claims against three sets of respondents. 2 First, Directed has made claims against two of its former employees, namely, the sixth respondent, John Meneses, and the seventh respondent, Craig Mills, and an entity owned and controlled by Meneses being the first respondent (OE Solutions). 3 Second, Directed has made claims against its South Korean suppliers and their related entities, being the second, third, fourth, fifth, and twelfth respondents (the Hanhwa parties) and the Hanhwa parties' managing director who is the eighth respondent, Ryan Lee; I will simply refer to him as Lee. It is convenient to distinguish between the various Hanhwa parties. Claims have been made against the second respondent, Hanhwa Aus Pty Ltd (Hanhwa Aus), the third respondent, Han Hwa Hightech Australia Pty Ltd, the fourth respondent, Leemen Aus Pty Ltd, the fifth respondent, Hanhwa Hightech Co Ltd (Hanhwa Korea), the eighth respondent, Lee and the twelfth respondent Leemen Co Ltd (Leemen Korea); the corporate name for the third respondent uses a modified form of "Hanhwa". 4 Third, Directed has made claims against former business associates of Directed and their related entities, being the tenth, eleventh and thirteenth respondents (the Gridtraq parties). 5 It is appropriate to say at the outset that Directed's case against Meneses, Mills and OE Solutions has largely succeeded. Each of them were involved in conduct that could only be described as reprehensible in terms of appropriating the confidential information and customers of Directed, ultimately to the benefit of the Hanhwa parties. Moreover, Meneses' behaviour was in part encouraged by the payment of secret commissions from Hanhwa Korea or its predecessor to Meneses and/or OE Solutions. Hanhwa Korea or its predecessor from at least 21 July 2009 to 20 November 2017 regularly paid secret commissions to Meneses or OE Solutions. This was over the period of Meneses' employment at Directed. 6 It is also appropriate to say that Directed's case against most of the Hanhwa parties has also largely succeeded in terms of their knowing involvement and assistance in the wrongful conduct of Meneses and Mills, the Hanhwa parties' misuse of the confidential information of Directed and the Hanhwa parties' appropriation of the customers and products of Directed. But it is apparent that Directed has no sustainable case against the third and fourth respondents. It has only succeeded against Hanhwa Aus, Hanhwa Korea, Leemen Korea and Lee. 7 But let me say at the outset that Directed's claims against the Gridtraq parties have largely failed. In this respect, many of Directed's allegations were simply unfounded. They proceeded on a mischaracterisation of the relevant facts. They were replete with exaggerations. Moreover, many of Directed's submissions were tainted with mere suspicions, conjectures or were coloured with little more than unsustainable theories. There is only one narrow part of Directed's case that has succeeded concerning the use of confidential information. But on that aspect I am not convinced that Directed is entitled to any substantive relief against the Gridtraq parties. But I will hear the parties further on that aspect. 8 Now the extensive trial before me has proceeded on questions of liability, injunctive and declaratory relief, together with limited issues of quantum concerning the secret commissions. Numerous causes of action have been alleged by Directed. The final version of the statement of claim, which was filed on the last day of oral closing submissions, was the third further amended statement of claim (3FASOC). This ran to some 185 pages with a further 140 pages of particulars. Further aides memoire and other material, some of which I requested, were filed over the following month. 9 The present matter and indeed the present trial has had a protracted history, including sporadic and lengthy delays brought about by the COVID-19 episode and external restrictions disproportionately burdening my conduct of the matter sitting in Melbourne. Not only has this affected the time frame, but it has also affected the mode of trial. In that latter respect, special procedures were put in place by me after detailed consultation with the parties to have substantial parts of the evidence taken in mid-2020 by video deposition at a time when the necessary compatible technology was not available to conduct proceedings before me particularly involving South Korean based witnesses with interpreters. I should say that by March 2020 I had heard several weeks of evidence that had involved an electronic trial involving a third-party service provider providing access to documents and the like. But given that no in person hearings could take place, given that the external service provider was off-site and could not continue on-site, given the nature of the technology already in place, and given that for an electronic trial to continue by video, facilities for split screening (five or more images) and calling up documents were required, the proceedings in Court could not continue for what was an indeterminate period. Moreover, none of the embryonic steps that were then being investigated within the Court for remote but simple or short hearings could address the complexity and the technology then being used including BlueJeans. I did not have the advantage of a clean "green-fields" technical solution. Hence the video depositions mode. For that purpose, and with the acquiescence of all parties, I appointed Mr Edward Heerey QC as a special examiner to undertake the necessary video depositions. If I might say so he did a commendable job and I am grateful for his assistance. I have set out the protocol dealing with his appointment and the technology used in annexure A to these reasons and my underlying authorising orders in annexure B. 10 Now I have had the advantage of reviewing those depositions in relation to the significant aspects that I have had drawn to my attention. Of course, I have also had and reviewed the hard-copy affidavits and complete transcripts of cross-examinations of all relevant witnesses, which I had my chambers put together and consisting of some 13 volumes, but not including hard copy form primary documents. I was also provided with a 30 volume court book at the start of the trial consisting of what were said to be the most pertinent documents, including 4 volumes of what were said to be the copyright documents. I also requested that for closing addresses each party provide to me a set of the relevant significant documents that they wished me to particularly consider. In that respect I was provided with another 9 volumes of material. I should also say that during oral openings, reference was made to other material in electronic form that I compiled in a further 5 volumes of material that was not otherwise in the court book. In addition, there was an electronic data base for all other evidentiary material. 11 I have considered all of this material to the extent that it was part of and referenced in the parties' written closing submissions and other aides-memoire totalling well over 1000 pages or drawn to my attention during oral openings and closings. Further, to the extent that some of the references were not in a hard copy form of the type that I have identified, as I say I had access to an electronic data base. 12 Before proceeding further, let me say something about the mode of trial in terms of assessing the credibility of witnesses. There were some witnesses who gave evidence before me, including concerning Directed's application to re-open its case. But for the video depositions taken before Mr Heerey QC I could only review the video recordings. But in assessing the reliability of the video evidence of a particular witness, all of this was readily assessable based upon reviewing the precise contents of the narratives, the transcripts, the contemporaneous documents and independently and objectively considering the various plausibilities and probabilities of the contestable and competing narratives. And it could not seriously be suggested that the apparent demeanour of a witness as he appeared in a video recording could carry the day or be substantially influential in my assessment of credibility. 13 Let me deal with another preliminary matter. Some years after Directed brought the present proceeding, it commenced in August 2020 a related proceeding against Isuzu Australia Ltd (IAL), being proceeding VID 547 of 2020. Now it should be apparent from what I have said that IAL is not a party to the proceeding before me and so will not be bound by any of my findings. Moreover, as will become apparent from other parts of my reasons, no officer, employee or any other person associated with IAL has been called as a witness before me. IAL's only involvement in the proceeding before me has involved the production of documents as a subpoenaed party. Further, it should be noted that Directed commenced this separate proceeding after I had commenced the present trial and I had heard some weeks of evidence. On 4 June 2021 it became necessary for me to order that another docket judge be allocated to that separate proceeding so that there was no risk of being contaminated by either any material further used or produced in that separate proceeding or the conduct of the parties in that separate proceeding prior to my delivery of judgment in the present matter. 14 Now before proceeding further, let me say something further about the parties. 15 Directed is an Australian automotive electronics products and solutions developer specialising in the distribution of in-vehicle electronics, hardware, telematics and related technologies. It designs, markets and sells audio visual products (AV units) and associated accessories and component parts, devices which operate with the AV units (telematics units) and associated telematics services. 16 AV units have a head unit and a touch screen user interface. The head unit typically allows users to listen to the radio and CDs, connect to mobile devices so that the user can make phone calls, and also offers navigation. The touch screen allows the driver to operate the head unit. 17 A telematics unit is a wireless device. It records and transmits data in real time on how a vehicle is performing, the speed and distance it has travelled and how the driver is operating it. Warnings can be triggered, for example, in relation to oil temperature or pressure. They can be fitted to trucks to wirelessly communicate with a remote computer. They can also display this information to the driver on the AV unit. At head office, telematics can help a fleet manager to monitor vehicle and driver performance. Now to enable telematics, encrypted information collected from a network of sensors and devices that form part of the vehicle, known as the Controller Area Network or CAN network, is transmitted via the telematics unit to the cloud where it is stored. A truck can have multiple CAN networks, hence the term CAN Bus, which carries signals from multiple sources simultaneously. 18 For those who have an interest in such matters, I have included as annexure C to these reasons a pictorial representation of the flow of data between the various units and devices. 19 Now I should also note that from 2009 to the present, a Hungarian company has been Directed's navigation software supplier. Further, a German company has inter-alia provided Directed's underlying map data. Directed employees worked with those companies to customise navigation related information so that it was suitable for trucks. 20 Now Directed's products and components are primarily directed towards truck manufacturers and suppliers. It has original equipment manufacturer (OEM) customers in Australia and New Zealand. From 2009 to November 2017, its largest and most important customers included IAL, companies in the Daimler group such as Fuso and Mercedes Benz Australia Pty Ltd (Mercedes), Hino Motor Sales Australia Pty Ltd (Hino) and UD Trucks (UD), a division of Volvo Group Business Services Australia Pty Ltd. 21 Directed's premises at all relevant times had its own research and development centre and in-house R&D team that designed, developed and tested telematics units and telematics services. Its engineers worked with OEM customers to develop telematics solutions. As part of that process they gathered and built up vehicle parameters and CAN Bus data on the different vehicles supplied by OEM customers. They also designed circuit boards, harnesses, software and technical manuals. 22 Meneses is the sole shareholder and director of OE Solutions. He was employed by Directed from around mid-2009 under a written employment agreement dated 1 June 2009, holding the positions of Business Development Manager and OEM Director; he was not though formally a director of Directed, although at times he seems to have represented himself as such. He was entrusted with and granted autonomy. His role had an important marketing and client-relationship function. This included visits several times a week to IAL. He was entrusted with most of the direct dealings with IAL, Mercedes, Fuso, Hino and UD. Meneses ordered and sourced products from Hanhwa Korea and negotiated prices. 23 Now Meneses' employment end date is controversial. He claims that he tendered his notice of resignation on 17 July 2017. Clearly, Meneses then met with Stavros Siolis, a director of Directed, and handed him a purported letter of resignation. Meneses told Siolis and Anthony Tselepis, another director of Directed, that he was having difficulty with the amount of work he had to do and also raised other issues concerning his health. He also said that he was interested in pursuing other business opportunities. He also told Siolis and Tselepis that he was considering working for Hanhwa but only in relation to projects outside Australia. Siolis told Meneses not to resign, that Directed would support him in whatever way possible to lighten his load and that he could work part time. Meneses agreed. On 26 July 2017 Meneses emailed Siolis, Tselepis and Kon Floudas, Directed's Chief Financial Officer, that due to a medical condition requiring major surgery he would be unfit to perform work for Directed from 20 July 2017 to 8 September 2017. But as far as Directed was aware, Meneses continued to perform his duties as an employee, including using his security card to access the premises, up until 23 October 2017. I should say now that I accept Directed's case that he ceased his employment on 7 November 2017. 24 Let me say something about Mills. Mills was employed by Directed as Project and Production Manager from 1 June 2009 to about March 2017 pursuant to a written employment agreement dated 1 June 2009. The relevant terms of the Mills employment agreement were similar to those of the Meneses employment agreement. Mills reported directly to Meneses. He helped Meneses with the production and supply chain, accounts, document creation and management, and scheduling and forecasting. He helped source and supply products for Directed to sell. Mills resigned by letter dated 22 February 2017. He told Siolis that he intended to start working in his wife's business. He was paid by Directed until 13 March 2017 and his last day of work at Directed was 8 March 2017. There is no dispute between the parties as to Mills' end date. 25 Let me turn to the Hanhwa parties and Lee. 26 From 2009 to October 2018, various of the Hanhwa parties, leaving to one side the precise entity for the moment, manufactured and supplied to Directed the majority of AV units and accessories for Directed's customers. They did not manufacture Directed's telematics units, which Directed manufactured itself or separately arranged. Directed and various of the Hanhwa parties worked closely together in relation to the AV units and accessories. Directed ascertained the functionality requirements of each customer, worked with the customer on new designs and improvements, and determined cost and pricing. Directed employees undertook many hours obtaining, testing, approving and revising samples. They made drawings and created documents necessary to enable supply. 27 Now Directed originally contended in this proceeding that the supply from Hanhwa Korea and Leemen Korea was by an agreement constituted predominantly by conduct over an extended period. But on 21 June 2019, after Directed's evidence in chief had been filed, Tselepis located a signed manufacturing and supply agreement dated 27 July 2010 (the Hanhwa Enterprise Agreement) between Directed and Han Hwa Enterprise Co (Hanhwa Enterprise), a non-party. 28 Now Hanhwa Korea was registered on 7 February 2012. It manufactures and supplies in-vehicle electronic components and products. It carries on the business formerly carried on by Hanhwa Enterprise. Directed says that it is to be inferred that Hanhwa Korea assumed the assets and liabilities of Hanhwa Enterprise from 7 February 2012 from notifications sent to Directed advising of the incorporation of its business, the fact that business otherwise continued as before and what it asserts to be the retrospective operation of the 2012 secret commissions agreement to 2009. There was an earlier secret commissions agreement made on 1 July 2009 in identical terms. I will return to these matters later. 29 Directed also says that on an objective assessment based on the conduct of the parties, the Hanhwa Enterprise Agreement was novated. It says that the relationship between the parties, with Hanhwa Korea as successor to Hanhwa Enterprise, continued unabated on terms consistent with the Hanhwa Enterprise Agreement. Alternatively, it says that there was a new agreement entered into on substantially similar terms between Directed and Hanhwa Korea (the Hanhwa Korea Agreement). I will return to this aspect later. 30 Now since approximately 2015, the accessory side of the business previously carried on by Hanhwa Korea has been carried on by Leemen Korea who then became subject to the Hanhwa Korea Agreement. Directed continued to trade with Hanhwa Korea and Leemen Korea as it had done previously, except that Directed dealt with the two different entities in relation to specific types of products. 31 Now Lee is a shareholder of Hanhwa Korea; he graduated in law in South Korea. Since 2015 he has also acted in the role of its managing director. YS Lee, his father, is the sole actual director of Hanhwa Korea; he is also the chairman. Directed's primary contacts at Hanhwa Korea have always been YS Lee and Lee. In 2012 Lee moved to Australia. He worked out of Directed's premises, and was provided with a dedicated desk and an access pass which he used until 27 April 2017. Other employees of Hanhwa Korea also worked from Directed's premises, including Irene Oh and Thomas Shin. 32 Finally, let me say something about the Gridtraq parties. The Gridtraq parties specialise in telematics. Allen Hartley and Jeremy Davidson own and manage the tenth respondent (Gridtraq) and the eleventh respondent (Webhouse) either in their own right or via their private entities. Their related company is the thirteenth respondent (Quantam) whose directors include Allen Hartley and Davidson; to be clear, "Quantam" is the spelling of that company's name rather than "Quantum". I should also note that at all relevant times, the Gridtraq parties have been based in Brooklyn, Victoria, at premises co-owned by Allen Hartley via a trust. 33 Now from February 2010 to March 2016, Directed and its directors and shareholders were involved in a joint venture with Allen Hartley and Davidson, either personally or through entities owned and controlled by them (the Directed/Gridtraq JV). The Directed/Gridtraq JV involved selling and supplying GPS based telematics systems to truck owners and OEMs. The Directed/Gridtraq JV was conducted through a company now called ACN 139 732 951 Pty Ltd, previously Gridtraq Pty Ltd (JV Vehicle). For the purposes of the Directed/Gridtraq JV, Allen Hartley, Davidson and/or Dylan Hartley, the son of Allen Hartley, received and provided technical information regarding AV units. This included telematics integration information. Dylan Hartley worked full time as an employee of the JV Vehicle. 34 I should note at this point that this relationship ended in dispute. On 19 January 2016, Allen Hartley and Davidson through a related entity commenced an oppression proceeding against Siolis Holdings Pty Ltd and Tselepis Holdings Pty Ltd. They sought to wind up the JV Vehicle. On 27 January 2016 the JV Vehicle was placed into voluntary administration. 35 In that context, a Deed of Agreement and Release (Deed of Release) and a Deed of Company Arrangement (DOCA) were executed on 29 March 2016. 100% control of the JV Vehicle was transferred to Siolis and Tselepis. Allen Hartley and Davidson also agreed to a 90 day restraint with respect to pursuing IAL, UD and Hino as customers. 36 Let me now descend into the detail. For that purpose, my reasons have for convenience been divided into the following sections: (a) Directed's case concept ([37] to [129]). (b) The various witnesses ([130] to [187]). (c) Some legal principles ([188] to [309]). (d) Detailed factual chronology ([310] to [863]). (e) The relevant units – similarities and differences ([864] to [1158]). (f) The case against Meneses and OE Solutions ([1159] to [1664]). (g) The case against Mills ([1665] to [1894]). (h) The case against the Hanhwa parties ([1895] to [3221]). (i) The case against the Gridtraq parties ([3222 ] to [3990]). (j) Conclusion ([3991] to [4003]). Directed's case concept 37 It is convenient at this point to give a brief description of Directed's case thesis and what aspects I generally accept. How closely Directed's case thesis correlates with the evidence is something that I will address in later sections. 38 I accept that from the outset of his employment, Meneses had two masters, namely, Directed and Hanhwa Korea or its predecessor. As I have said, he was employed by Directed from mid-2009, holding the positions of Business Development Manager and OEM Director until 7 November 2017. He was entrusted with and granted autonomy. His role had an important marketing and client-relationship function. He was entrusted with most of the direct dealings with Directed's major customers being OEMs such as IAL, Mercedes, Fuso, Hino and UD. 39 But at the same time, as Directed has said, Meneses was in essence a salesman in Australia for Hanhwa Korea or its predecessor, entitled to be paid commission of 3% of all purchases by Directed from Hanhwa Korea or its predecessor. He was required under his agreement with Hanhwa Korea or its predecessor to be involved in developing new business for it. Further, Meneses was contractually and financially bound to maintain and grow Hanhwa Korea's or its predecessor's business. 40 Now it is not in dispute that from 2009 to late 2017, the relevant Hanhwa entity manufactured and supplied to Directed 95% of the required AV units and accessories for Directed's customers. Meneses ordered and sourced the products supplied by Directed to these customers from Hanhwa Korea or its predecessor and negotiated the prices Directed paid to that entity. Directed was an important customer of Hanhwa Korea and its predecessor. 41 It is also not in dispute that on 27 July 2010, the Hanhwa Enterprise Agreement was executed with Directed. The supply agreement was an umbrella agreement between the parties, by which Directed engaged Hanhwa Enterprise to provide manufacturing services to Directed for their specific products. Hanhwa Enterprise agreed to manufacture products in accordance with the specifications of Directed and to supply them to Directed. Directed asserts that these were exclusive arrangements, an issue that I will return to later. 42 Now it is not in doubt that at the end of 2012, Directed was Hanhwa Korea's most important and largest customer overall. Sales by Hanhwa Korea to Directed represented about 80% of Hanhwa Korea's global business. Sales via Directed included IAL (45%), Hino (16%), UD (9%) and Orion for the aftermarket (8%). The only items not supplied to Directed were to Toyota, with some accessories. 43 It is also not in doubt that by August 2013, Lee was head of the sales and marketing division of Hanhwa Korea, but based in Australia. He was responsible for its development planning team, the international sales team, and the design team. 44 Now I accept that Directed and Hanhwa Korea (and its predecessor) worked closely together in relation to the design and development of the AV units and accessories which Directed supplied to the OEMs. Directed ascertained the functionality requirements of each customer, worked with the customer on new designs and improvements, and determined and negotiated cost and pricing. It is not in doubt that in the course of this design and development, Directed entrusted various of the Hanhwa parties and Lee with confidential information about its business, customer relationships and customer requirements. Further, Lee had a dedicated desk at the Directed premises after his move to Australia. He attended internal meetings of Directed employees. Because of this he became aware of commercial business opportunities that Directed was trying to exploit. He was also invited to and did attend meetings between Directed and IAL, at times. He was provided by Meneses with minutes of meetings with IAL which Lee would pass on to Hanhwa's engineering people. None of these matters were seriously contested in my view. 45 Further, in my view Directed employees provided substantial and significant input on the design and development of the products Hanhwa Korea or its predecessor produced for it. This included identifying the opportunities, negotiating with the OEMs their requirements, reviewing and amending documents, obtaining, testing, approving and revising samples of products. Directed made drawings, created documents and provided information to Hanhwa Korea or its predecessor necessary to enable the supply of the products by Directed to the OEMs. 46 Further, it is not in doubt that the Hanhwa parties from at least 21 July 2009 to about 20 November 2017 regularly paid commissions to Meneses, or his wholly owned and controlled company OE Solutions. Commissions were calculated based on Directed's purchases from Hanhwa Korea or its predecessor. 47 Directed's case, which I accept, is that Meneses had a conflict of interest during the period from June 2009 to November 2017, and that he was under a contractual obligation to disclose this conflict to Directed but did not do so. 48 Further, it is also not in doubt that in the period 2009 to 2017 Meneses, through his company OE Solutions, on-sold electronic harness products to Directed after marking up the product prices from the original supplier, Kenmarco Industries Pty. Ltd. In the period 31 July 2009 to 21 April 2017 Directed purchased from OE Solutions 108,795 harness products and paid AUD 1,710,126 to OE Solutions. The total mark-up that OE Solutions charged to Directed across all products was AUD 665,400. I also accept that Meneses' relationship with this company was undisclosed to Directed. 49 Further, Directed's case is that during the period in which Mills was employed by Directed as Project and Production Manager from 1 June 2009 to about March 2017, Mills knew of, and assisted Meneses and the Hanhwa parties in their wrongful conduct. He failed to report it to Directed, as he was obliged to do under his employment agreement. Mills may have been influenced by Meneses or motivated by personal gain. I have also largely accepted Directed's case against Mills, and I will discuss the details of this later. 50 Now it is also not in contest that from 2012 to 2018, Directed supplied to IAL an AV unit called the DIR6200 or "DAVE" and accessories, which were manufactured or assembled and supplied by Hanhwa. Further, from 2014 to 2018, Directed also supplied IAL with its telematics units. Hanhwa Korea did not manufacture Directed's telematics units. Directed manufactured these units through its related company STI Technologies Pty Ltd. 51 Now it is common ground that in the period 2009 to 2017 Directed and the Gridtraq parties specialised in telematics. 52 Further, from February 2010 to March 2016, and as I have said, Directed and its directors and shareholders were involved in the Directed/Gridtraq JV through the JV Vehicle with Allen Hartley and Davidson to sell and supply GPS based telematics systems to OEMs and truck owners. The JV Vehicle also provided the on-line portal through which telematics services were provided to truck owners and OEMs. 53 Further, it is not in doubt that in the period January to July 2015 Gridtraq and Hanhwa Korea negotiated and entered into a Heads of Agreement concerning combining Hanhwa's AV head units and Gridtraq's telematics hardware, firmware and online back end portal software. They agreed to collaborate and look for new markets for AV units, telematics units and telematics services. Now Directed asserts that the agreement placed Hanhwa Korea and the Gridtraq parties into significant conflict with the agreements they had with Directed. For example, pursuant to the Heads of Agreement, both parties were to do all that was necessary, including new hardware and firmware design to convert their individual product offerings into an integrated product design in order to offer new and existing products to current clients and new clients introduced on a consumer scale basis and to any potential markets. Such products would be directly competitive with Directed's AV units, marketed in AUS/NZ and potentially throughout other markets. I will discuss this aspect of Directed's case later. 54 Directed says that the Hartleys, Davidson and the Gridtraq parties also knew from their work in the venture undertaken by the JV Vehicle that Hanhwa Korea had an ongoing and longstanding relationship with Directed. They knew that it had collaborated with Directed for the manufacture, distribution and supply of AV units, including the DAVE units supplied by Directed to IAL since 2009. 55 Directed asserts that the Gridtraq parties ought to have known that their contractual arrangements with the Hanhwa parties entered into in July 2015 would bring the Hanhwa parties into conflict with their contractual arrangements with Directed. 56 Directed says that even though Allen Hartley came to Directed, at a minimum, once or twice a week inter alia to have a meeting with Siolis and Tselepis, he did not give notice of his new business arrangements with the Hanhwa parties. He did not seek Tselepis' or Siolis' consent to engage in direct competition with the business carried on by the JV Vehicle. Rather, they kept it private. Allen Hartley refused to recognise that his and Davidson's conduct was in breach of the JV Vehicle Shareholders Agreement. Further, he and Davidson ignored the role the Gridtraq parties were playing in assisting and supporting Hanhwa Korea to engage in conduct at odds with its development and supply of AV units it had developed in conjunction with Directed. 57 I will deal with all of these assertions by Directed later, although it is convenient to now say that its case against the Gridtraq parties relying upon these assertions has failed. 58 Now it is not in doubt that from late 2014 extending through 2017, Directed pursued a confidential project to supply the "SuperDAVE" unit, which had the product code DIR8000, to IAL. This was a new AV unit and accessories range. The SuperDAVE was intended to replace the DAVE. 59 It is also not in doubt that in August 2014 Directed involved Hanhwa Korea in the project for it to be the supplier of the SuperDAVE to Directed. The project involved extensive communications between Directed, IAL and Hanhwa Korea over more than two years on all issues necessary to bring the product to market. Directed employees were heavily involved. Samples of the DIR8000 were sent by Hanhwa Korea from South Korea to Directed throughout 2015 and 2016. They were extensively tested and changes requested by Directed. They were shown to IAL and its feedback provided to Hanhwa Korea. 60 Now Directed's case, which I accept, is that unknown to it, from a date in late 2015, Meneses and Mills began secretly assisting Hanhwa Korea to set up a competitive business in Australia, which involved significant breaches of their fiduciary duties, breaches of confidence and copyright owned by Directed or which it was entitled to enforce. The work involved matters necessary to commence a start-up such as Hanhwa email addresses, a corporate logo, business cards, social media pages, promotional videos, marketing materials, and corporate uniforms. 61 It is not in doubt that in early July 2016 Meneses participated in the negotiation of the lease for Hanhwa Aus of new premises in the same building as occupied by the Gridtraq parties. They purchased office equipment. Meneses bought, registered and insured an Isuzu truck for and on behalf of Hanhwa Aus which was then used to test the SuperDAVE and the Gridtraq parties' telematics units. Meneses looked after the incorporation of Hanhwa Aus, and was later reimbursed by Hanhwa Korea. He was provided with a laptop computer paid for by Hanhwa Aus, and a credit card issued to him by Hanhwa Korea. Meneses had his own office at the Brooklyn premises. Between 30 June 2016 and 24 October 2017 Meneses made 124 telephone calls or text messages from Brooklyn. 62 Further, Directed says that from at least late 2015, Meneses and Lee had agreed to go into business together as partners in the establishment of Hanhwa Korea's business in Australia, and that Meneses was to hold 40% of the shares in the company(s) ultimately established to exploit the venture. I accept that there were some discussions along these lines and I will return to the 40% question later. 63 Now in mid-2016, according to Directed's case, which I accept, the Hanhwa parties resolved to supply the DIR8000/SuperDAVE directly to IAL. The new product code that the Hanhwa parties intended to use was HAU8000. 64 It is apparent in my view that Hanhwa internally renamed the DIR8000 as the HAU8000 in September 2016. By 11 November 2016, Hanhwa had established a new team to exploit the HAU8000 because Directed was no longer involved. The aim was to do this quickly, ready to show a working sample to IAL in December 2016 or January 2017. Meneses then secured the deal for the Hanhwa parties to supply the SuperDAVE directly to IAL on 18 November 2016. 65 Now it is convenient to note at this point my view that many of the Hanhwa parties' witnesses gave problematic evidence to the effect that the HAU8000 was a "new unit" designed from scratch and that it was not the DIR8000 with minor enhancements. They claimed that the HAU8000 was not in any material respect, based upon or derived from the DIR8000/SuperDAVE as it existed in July 2016 or at all. They suggested that Directed had no involvement in the design or development of the HAU8000. But this position is negated by Hanhwa's contemporaneous documents. Oh accepted that as at 2 September 2016 Hanhwa decided not to design a new unit from the beginning, but to change the model number to HAU8000 and then supply that unit to IAL directly. The HAU8000 as ultimately supplied to IAL was the DIR8000 with minor evolutionary developments and the accessories for both units were the same. I will discuss in a later section of my reasons the evidence of Directed's independent expert Mr Peter Girgis, an expert in the relevant technology at issue in these proceedings including telematics, navigation and mapping software and the relevant AV units and telematics units, concerning the various unit comparisons at issue in these proceedings. 66 The Hanhwa parties assert that they were entitled to exploit the SuperDAVE opportunity because Directed had not paid it for the tooling costs it incurred to manufacture the AV unit. They further say they inferred from this that Directed did not want to buy the SuperDAVE. However, to the knowledge of Lee, IAL had not yet committed with Directed to proceed and Directed was continuing right up until the end of 2016 to attempt to win the contract to supply it to IAL. I reject the Hanhwa parties' case that they were entitled to exploit the SuperDAVE opportunity. 67 Directed says that there was no obligation on it to pay for the tooling at that point in the design process. There is no evidence of any invoice sent from Hanhwa Korea to Directed, nor demand for such payment. Until such time as Directed issued a purchase order for the tooling, Directed had no obligation to pay for it. Lee acknowledged there never was an obligation on Directed to pay for the tooling for the DIR8000 as Directed never issued a purchase order to Hanhwa Korea which was required for such an obligation to arise. Lee ultimately conceded that Directed was never liable to pay for tooling in relation to the SuperDAVE. I accept Directed's case on this aspect. 68 In any event Directed says that there was no entitlement for the Hanhwa parties to use the confidential information it had been provided by Directed in relation to the SuperDAVE opportunity for itself. I also agree with Directed's case on this aspect. 69 Now it is clear in my view that on 14 July 2016, Meneses instructed Lee to "slow down" in relation to the renting of large premises for the Hanhwa business in Australia. He noted in an email that they needed a contract with an OEM customer first and in the meantime "that Directed still needs to keep ordering ALL of our current products until we start to move them after one year". In my view this email reveals Lee's and Meneses' deception and their plan to strip Directed's business, and of the need for secrecy until the very last moment. 70 Now Hanhwa Korea's business plan dated 15 December 2016 (for 2017) records that its Australian implementation plan was that sales, logistics and after sales would all be performed directly in Australia. They would start "self-supply" from "HAU-8000 (ISUZU), HAU-8100 (D-MAX) model". They would "continue to work with Directed on the current AVN products until discontinuation". According to Directed this makes manifest the secret plan expressed between Meneses and Lee in July 2016 to strip Directed's business. I agree. 71 Directed says that in June 2016 Lee and Meneses let the Gridtraq parties in on their plan. I disagree. 72 Directed says that from their 6 year relationship in the JV Vehicle, the Gridtraq parties well knew that Meneses was a senior and trusted full-time employee of Directed. They must have known that he could not also act to assist Hanhwa in any commercial activities that might be in competition with Directed whilst at the same time be employed by Directed. This necessarily includes the cooperative endeavour that then ensued between Hanhwa and Gridtraq to exploit the SuperDAVE opportunity with Meneses' involvement and assistance. 73 Directed says that the Gridtraq parties knew Meneses was a longstanding employee or, as Gridtraq would have it, a director of Directed, and therefore owed duties to Directed in either case. The Gridtraq parties knew, or ought to have known, that the Hanhwa parties and Meneses should not have been working with the Hanhwa parties and the Gridtraq parties on projects in competition with Directed if he remained an employee or director of Directed. Yet, so Directed says, from at least June 2016 the Gridtraq parties, and the Hanhwa parties and Meneses worked on projects to develop and supply products in direct competition with Directed when they knew he remained an employee or director of Directed. 74 At the very least, Directed says that the conduct of the Gridtraq parties involved such a calculated abstention from inquiry as would disentitle them to rely upon lack of actual knowledge. 75 I should say here that I reject Directed's case against the Gridtraq parties concerning knowing involvement and will dispose of the detail later. 76 Further, Directed says that in the process of the Gridtraq parties pursuing projects with the Hanhwa parties to develop and supply products in direct competition with Directed, they used and reproduced confidential information and copyright works of Directed and the JV Vehicle without their authority. The JV Vehicle's confidential information was protected by an express term of the JV Vehicle Shareholders Agreement for the JV Vehicle dated February 2010 binding Allen Hartley and Davidson and their entities. It has post-contractual effect. I will return to this aspect of the case later. 77 Directed says that co-operation between the Hanhwa parties and the Gridtraq parties with Meneses' involvement to exploit the SuperDAVE opportunity and telematics opportunities with IAL proceeded in earnest in the period from November 2016 through to September 2017. I accept its case concerning Meneses and the Hanhwa parties, but not the Gridtraq parties. 78 It is apparent that on 20 November 2016, Lee informed Hanhwa Korea employees that a field test was to be conducted in December 2016 fitted onto a truck and presented in the "Dealer working presentation", which was to occur in front of all Australian dealers. Lee proposed to submit this sample to IAL for approval. A field test took place in Australia from 12 to 17 December 2016, with an HAU8000 fitted to an Isuzu truck with inter-alia a wireless charger and a digital camera. A second field test was scheduled in the fourth week of January 2017. 79 Further, it is apparent that Directed continued to work on the DIR8000 and its accessories right up until March 2017, ignorant of the conduct of various respondents to exploit the SuperDAVE opportunity and telematics opportunities with IAL. Meneses then took active steps to ensure that Directed ceased work on the DIR8000 and its accessories and restricted communication by its employees with IAL. On 16 March 2017, he told Mark Summers that the DIR8000 project was not going ahead. Summers was told to box up all the materials and prototype units and accessories and give them to Meneses, which he did. They were delivered to Lee at Hanwa Aus at the Brooklyn premises. On 28 July 2017, Meneses told Steve Reidie of Directed NZ, following an enquiry from Isuzu NZ, that the SuperDAVE project was on hold until further notice and that Directed will only go ahead with this project if IAL gives the go ahead. I accept all of these aspects of Directed's case. 80 Now on Directed's case, in November 2016 the Hanhwa parties and the Gridtraq parties did not yet possess all the documents and information they required to exploit the SuperDAVE opportunity and telematics opportunities with IAL within the required timeframe. On Directed's case, they needed, and the Hanhwa parties provided to the Gridtraq parties, a radio protocol for communications (the Directed Specification) which enabled the AV units to communicate with the telematics units. 81 Now David Vardon, a firmware engineer, created the Directed Specification in early 2014. I will deal with the capacity in which he created this later. Vardon created various versions in the period 2014 to 2016 which were provided to Hanhwa Korea to enable it to develop AV units for Directed. It was implemented for communication between all of Directed's AV units and its telematics units, including those supplied to IAL between 2014 and 2018. 82 It is not in doubt that in the event that the purchasers of the Isuzu trucks installed with the Directed telematics units wished to have telematics features displayed through the AV unit installed in the vehicle, such as driver identification, two way messaging, CAN diagnostic data and driver violation features, then the relevant Hanhwa AV unit installed in those trucks needed to communicate with the Directed telematics unit. The Directed Specification could facilitate this. 83 I accept that Directed's portal/platform software facilitating the portal used by the OEMs, including importantly IAL, utilised the Directed Specification to pass on communications and commands between the portal/platform and the Directed telematics unit and Directed AV units installed in customer vehicles. Directed's AV units supplied to OEMs who required telematics functionality, including the DAVE units, had software libraries that enabled them to communicate with the Directed telematics platform using the Directed Specification. 84 I accept that the Directed Specification was a proven protocol for communications between a telematics unit and an AV unit. The software and hardware of the DIR8000 was significantly advanced to the point of operating working samples which could and had always been required to have telematics connectivity and functionality with the Directed telematics unit. 85 Now if the HAU8000 carried forward that same software and hardware and it was then intended to connect another telematics unit, such as the RA7000 telematics unit, Directed says that it was of assistance to the Gridtraq parties to simply be provided the Directed Specification. 86 Directed say that it was possible that the Hanhwa parties and/or Gridtraq parties could have written a specification to enable communication between the HAU8000 and the RA7000 telematics unit from scratch. However, this would have been a complicated task and would have taken at least 6 to 12 months. Directed says that Hanhwa and Gridtraq did not have that time to demonstrate telematics functionality of the HAU8000 which was required quickly. Instead, so Directed says, the Hanhwa parties supplied the Gridtraq parties with the Directed Specification which they then reproduced and used without Directed's authority in the period November 2016 to December 2017. 87 Directed says that the Gridtraq parties used the Directed Specification over a period of 5 months from November 2016 to connect the RA7000 telematics unit to an Isuzu AV unit. Directed's case is that the Directed Specification was used to successfully connect the RA7000 telematics unit to the DAVE and the HAU8000. I will return to this aspect of the case later which is contentious. 88 Further, Directed says, which I accept, that in about February or March 2017, prior to Mills' departure to Hanhwa Aus, Mills and Meneses engaged in wholesale downloads of Directed's confidential information and copyright works which were then provided to and used by the Hanhwa parties. 89 I accept that Meneses asked Mills to copy electronic files from Directed's server onto a hard drive (red hard drive), which he then did. In March 2017, and as a new employee of Hanhwa Aus, Mills took the red hard drive to Hanhwa Aus' office at the Brooklyn premises. He then uploaded the electronic files stored on the red hard drive to storage locations owned by Hanhwa Aus. He also uploaded Directed's electronic files stored on the red hard drive to Microsoft Groups, a cloud based file sharing system within Outlook under the names "HANHWA AUS" and "HAU8000 Project". That they were uploaded to an HAU8000 group is telling. The files extracted included 41,965 emails, 20,535 PDF files, 4,043 Microsoft Excel files, and 392 Microsoft Word files. 90 I also accept that in about April or May 2017 Meneses, whilst still employed by Directed, handed a USB to Mills, who was by then an employee of Hanhwa Aus. It contained approximately 10Mb of data. He asked Mills to upload the contents to Mills' Hanhwa Aus PC, which he then did. Mills saved the files in a folder labelled "Directed" on the desktop. 91 Further, I also accept that in May 2017, Meneses instructed Summers to provide him with a complete copy of everything in the K drive, which he did. The DAVE Production Part Approval Process (PPAP), which was important to the supply of an AV unit to IAL, was on the K drive. Directed says that in the period May to September 2017 Hanhwa used the DAVE PPAP to create Hanhwa's PPAP for the HAU8000. I should say now that in my view that is clear. 92 Directed says, which I accept, that on 6 July 2017, at the request of Shin, Summers sent him CAN Bus data compiled by Directed by many hours of reverse engineering for Isuzu N, F, FX and FY Series trucks. 93 Directed says that in the period May to August 2017, Dylan Hartley emailed Davidson and Allen Hartley CAN Bus information and parameters for IAL, Hino, Mercedes and UD and an IAL telematics master feature list and specification and an IAL telematics data collect proposal. It says that these documents were taken from the period in which Dylan Hartley worked as an employee of the JV Vehicle, a number of which he had marked as confidential. He claimed to have an entitlement to these documents under the DOCA between the JV Vehicle and Directed, but Directed says that no such documents were specified as being transferred to the Gridtraq parties. 94 Directed says that Allen Hartley and Davidson and their controlled entities, which includes the Gridtraq parties, were subject to clauses 15.1 to 15.3 of the JV Vehicle Shareholders Agreement which restrained them from using the JV Vehicle's confidential information, and which had post-contractual effect. It says that Dylan Hartley owed duties of confidence as an implied term of his employment agreement with the JV Vehicle. It says that the Gridtraq parties were not free to deal with the CAN information or the materials Directed and the JV Vehicle exchanged with IAL as their own, as they did. 95 I will deal with these assertions later. 96 Directed's case is that the Hanhwa parties and the Gridtraq parties used the documents and information they wrongfully retained and obtained to successfully connect the RA7000 telematics unit to the DAVE and the HAU8000 and to develop and promote the HAU8000 and the RA7000 telematics units and their telematics services to IAL. I will deal with these matters later. 97 Directed says, which I accept, that the Hanhwa parties also worked with Polstar Technologies Inc (Polstar) on navigation software for use in the HAU8000 between April 2017 and October 2017. Much of this work was done in consultation with Meneses, and by Meneses involving other employees of Directed. I agree. 98 On 27 April 2017, Lee informed Zoltan Mohos of Polstar that he should not speak to Siolis about Polstar's engagement with Hanhwa. Mohos acknowledged he would not discuss it with anyone from Directed other than Meneses. Further, during April to June 2017, Meneses and Summers, whilst employed by Directed reviewed and provided information and advice to Mohos of Polstar about what was required to enable the Polstar software being developed for use with the HAU8000 to be suitable for Australian roads, conditions, legislation and Directed customer requirements. Summers, employed by Directed, and Mohos undertook a three-hour drive in an Isuzu truck around Melbourne to evaluate and provide detailed feedback on the Polstar navigation software. Specific changes to make it suitable for IAL were recommended. All of this work was done by Directed's employee, at the direction of Meneses. Plainly, this work was not for the benefit of Directed. I accept Directed's case on this aspect. 99 Now Directed says that the Gridtraq parties' assertion that they never proceeded to assist Hanhwa with the demonstration of telematics functionality of the HAU8000 is contradicted by the evidence. I disagree. Now Directed has pointed to the following matters. 100 It says that Shin accepted that in March 2017 he and other Korean engineers connected an HAU8000 installed in an Isuzu vehicle with the RA7000 telematics unit to see whether they communicated. An attempt to detect CAN Bus data on an Isuzu vehicle was also made. It says that in March and April 2017 the Gridtraq parties and the Hanhwa parties prepared hardware and exchanged extensive correspondence in relation to debugging tools to be used to check the communication between the RA7000 telematics unit and the DAVE unit and the HAU8000. 101 Directed says that on 11 August 2017, Oh attended a meeting with personnel of the Gridtraq parties. It says that the work by the Gridtraq parties to connect or to integrate the RA7000 telematics unit with the HAU8000 unit can clearly be inferred from her notes. It can be inferred from the reference to, "Isuzu truck found CAN not speed", that an HAU8000 and an RA7000 telematics unit had been installed in an Isuzu truck, with the Gridtraq parties successfully achieving a connection and obtaining certain CAN Bus data, although this was not conceded by Oh. Oh did concede that there was a reference to gathering telematics or CAN Bus data from the Isuzu truck. It says that on 21 August 2017, Dylan Hartley asked to meet with Oh by an email with the subject "Meeting - RA7000 and Isuzu Screen Integration". His agenda referred to: "Isuzu Screen Integration". 102 Further, Directed says that on 23 August 2017 the relevant Gridtraq party sought from the relevant Hanhwa entity a sample HAU8000. 103 Further, Directed says that in a written presentation made to IAL on 25 September 2017 to supply telematics units and telematics services, the relevant Gridtraq party represented to IAL that the RA7000 telematics unit connected to and operated in conjunction with the HAU8000. According to Directed, the relevant Gridtraq party had tested and satisfied itself of this fact. Further, there was outlined telematics features that rely upon the interoperability of a telematics unit and an AV unit. Further, according to Directed, the relevant Gridtraq party represented that it had developed a specification for communication between the RA7000 telematics unit so it could connect to and operate in conjunction with the HAU8000. 104 Directed says that it should be inferred that the Gridtraq parties used the Directed Specification to connect the RA7000 telematics unit with the HAU8000. Directed says that it should also be inferred that the specification for communication between the RA7000 telematics unit and the HAU8000 referred to in the Gridtraq presentation to IAL is the Directed Specification or a specification created by reference to the Directed Specification. Directed says that a similar presentation to that made to IAL was made by the Hanhwa parties and the Gridtraq parties to the Daimler group (Mercedes and Fuso) in 2018. 105 I should say now that I do not accept Directed's case against the Gridtraq parties on this aspect and will discuss the detail later. 106 Now shortly after this proceeding commenced, IAL ceased ordering the HAU8000 due to legal issues. But Hanhwa then supplied to IAL the HAU8000 with a new fascia and the same accessories as had been approved for the DIR8000 and the HAU8000: the unit is called the LM18I. None of this is in dispute. 107 Directed says that the LM18I and its accessories comprised the HAU8000 with a 6.2 inch screen and the same accessories. It is said that the LM18I is the HAU8000 with cosmetic changes. It has been supplied to IAL since and continues to be supplied by Hanhwa Aus. It has been supplied with the Polstar software. I accept this. 108 Directed says that thereafter, the Hanhwa parties marketed the HAU8000 with different fascias to Mercedes, Fuso, UD and Hino. The HAU8000 was given the following product codes for supply to these customers: Mercedes/Fuso - LM19M/LM19F; UD - LM19U; and Hino - LM18H. I accept this. 109 Directed says that the LM19M/LM19F - Mercedes/Fuso is virtually the same as the LM18I. It has been supplied to Mercedes/Fuso since and continues to be supplied by Hanhwa Aus. It has been supplied with the Polstar software. I accept this. 110 Directed says that the LM19U is the same as the LM18I with minor changes. It has been supplied to UD since and continues to be supplied by Hanhwa Aus. It has been supplied with the Polstar software. I accept this. 111 Further, Directed says that Meneses, Mills, the Hanhwa parties and the Gridtraq parties attempted to divert a range of other opportunities in addition to the SuperDAVE opportunity. This involved a range of wrongful conduct, including the misuse of Directed's confidential information. I largely accept Directed's case against Meneses and the Hanhwa parties and in summary accept the following conclusions on the evidence. 112 First, in 2017 Meneses and the Hanhwa parties attempted to divert and exploit an opportunity from Mercedes inviting Directed to submit a proposed design for a standalone AV unit to be fitted to its Sprinter buses. 113 Second, in 2016 and 2017 Meneses and the Hanhwa parties attempted to divert and exploit an opportunity for an AV unit to be fitted to Isuzu D-MAX utes to Isuzu Utes. 114 Third, in 2016 and 2017 Meneses and the Hanhwa parties attempted to divert and exploit an opportunity to supply a new AV unit with a bigger screen to Hino. 115 Fourth, in 2016 and 2017 Meneses and the Hanhwa parties attempted to divert and exploit an opportunity to supply AV units and accessories through Isuzu Company Limited in Japan (ICL). In the period September 2016 to July 2017, Meneses with his "Hanhwa hat" on, and Hanhwa pursued the ICL opportunity for the Hanhwa parties' benefit and sought to supply ICL with the HAU8000 and its accessories including those supplied with the DAVE. 116 Fifth, in 2017 Meneses and the Hanhwa parties attempted to supply a new AV unit to Mercedes to replace Directed's DIR6160. The Hanhwa parties worked on extracting CAN Bus data in order to provide telematics functionality for its proposed AV unit, including by Shin and one of its other employees extracting CAN Bus data on a Mercedes truck at Directed's premises. 117 I should deal with another aspect at this point. 118 It is not in doubt that each of the Meneses employment agreement and the Mills employment agreement contained a post-employment non-competition clause. The restraint was for 6 months and within the State of Victoria. It prevented them from being directly or indirectly involved with a competitor business, from soliciting employees, from divulging Directed's confidential information, and from interfering to the detriment of Directed with the relationship between it and any of its clients, customers, employees or suppliers. Meneses and Mills were also restrained from attempting to entice away or enticing away any of Directed's customers with whom Meneses and Mills had direct dealings in the previous 12 months. None of this could seriously be in contest. 119 Now according to Directed, neither Meneses or Mills regarded the restraint as a contractual obligation they needed to abide by, and they pressed ahead attempting to entice away Directed's customers with whom they had direct dealings in the previous 12 months. I agree. 120 Further, Directed's case is that the Hanhwa parties were at all material times aware of the restraint and they induced Meneses and Mills to breach the restraint to further the business interests of the Hanhwa parties. I agree with this to a large extent so long as one is clear concerning the relevant time frame. I will return to this question later. 121 Further, according to Directed, in addition to already having had Directed employees Mills, Summers and Marcus Palone working on tasks for Hanhwa's benefit since late 2015, from February 2017, Meneses and Lee started soliciting these and other Directed employees to resign from Directed and to work for Hanhwa Aus at the Brooklyn premises. The first employee formally recruited was Mills: Meneses gave him a proposed salary package on 3 February 2017; Lee provided the letter of offer which Meneses signed on behalf of Hanhwa Aus. The next employee recruited was Palone, Directed's Product Development Engineer, adopting a similar method. Attempts were also made to solicit Summers (Directed's Senior Product Development Engineer), Julyus Dane (Directed's Service and QA Manager), Andrew Calleja (Directed's Customer Service and Technical Support Division), Ashan Pieries (Mechanical Engineer employed by Directed), Mayouf Hashim (Directed's Product Development Division), and Barry Slade (Telematics Trainer). I accept this aspect of Directed's case. 122 Further, according to Directed, which I accept, Meneses made various misrepresentations to Directed's employees about Directed, its business and its directors in order to entice them to leave Directed to work for Hanhwa Aus. He told them variously words to the effect: "Directed is going broke", "Directed isn't holding enough stock", "The directors are trying to sell the business", "Steve and Anthony are retiring and getting out of the OE business. This is confidential and will be announced to staff shortly", "Steve and Anthony want to sell or close the OEM business within 3 years", "I am not going to go after any of the existing business of Directed. I am only going to target potential new business from Directed's customers", and "There is no long-term future for you if you keep working for Directed." 123 Generally, according to Directed, as a direct result of the various respondents' actions, Directed has lost to Hanhwa Aus the business of supplying the AV units and accessories to IAL, Fuso and Mercedes and UD. I agree with Directed's case on this aspect except so far as the Gridtraq parties are concerned. 124 Further, according to Directed, had the various respondents not acted wrongfully, the DIR8000 may have been supplied to IAL for between 3 to 5 years, resulting in lost revenue to Directed for sales of that unit alone to a single customer, plus accessories. It says that there has also been a substantial loss of revenue from Fuso, Mercedes and UD which have been supplied versions of the DIR8000 by Hanhwa Aus. I will address such matters later. 125 Further, Directed says that Meneses and the Hanhwa parties have been instrumental in this substantial loss of business, guiding and directing all key aspects of the offending conduct. The conduct enabled the manufacture and sale of the HAU8000 and associated AV units to the OEMs. I largely agree with Directed on this aspect of the case. 126 Further, Directed says that with knowledge of the relevant background facts, the Gridtraq parties as knowing participants facilitated the wrongdoing of the Hanhwa parties and Meneses. They enabled the Hanhwa parties in conjunction with Meneses to pursue competitive opportunities. Those opportunities were with the Gridtraq parties. And this was done without Directed's knowledge. I should say now that I reject this aspect of the case. 127 Directed says that the Gridtraq parties also misused Directed's intellectual property and confidential information. I will return to this aspect of the case later. 128 Generally, as I have said, Directed's case against Meneses, OE Solutions, Mills and the Hanhwa parties has largely been made out. But its case against the Gridtraq parties largely fails. I will discuss the detail of this later. 129 It is now convenient for me to say something concerning the various witnesses and the various legal principles. Further, it is also convenient to then set out a detailed factual narrative and a comparison of the various units before turning to the claims against the respondents. The various witnesses 130 Let me at this point say something about the various witnesses and my views concerning their reliability. Directed 131 Siolis' extensive evidence concerned the nature of Directed's business, customer base, customer relationships and his dealings with Meneses and Mills. He gave evidence concerning Directed's relationships with representatives of the Hanhwa parties and the Gridtraq parties. He gave evidence concerning his instructions to Meneses to pursue various opportunities, the discovery of Meneses' wrongdoing, and the loss of Directed's business relationships with customers. He also responded to Meneses' cross-claim. 132 The Hanhwa parties cross-examined Siolis on matters such as tooling and the level of Directed's involvement in its projects with Hanhwa. His evidence as to the existence of the Hanhwa Enterprise Agreement was also tested. The Gridtraq parties' challenge primarily concerned matters towards the end of the Directed/Gridtraq JV, including the Gridtraq parties' purported entitlement to remove confidential information of the JV from Directed's premises. The Meneses parties also cross-examined Siolis in furtherance of Meneses' cross-claim. 133 I had the advantage of hearing Siolis' evidence in person. Generally speaking his evidence was reliable save for aspects of his evidence concerning the Gridtraq parties. But Siolis and also Tselepis occasionally exaggerated the work and effort that Directed had put into the various units and/or documents. 134 Tselepis also gave extensive evidence. Now whereas Siolis focused more on the business-side, Tselepis focused more on issues concerning telematics, the importance of CAN information and vehicle parameters, and the fact that Hanhwa Korea did not manufacture the telematics units. He also gave evidence concerning what were asserted to be Directed's documents and confidential information including the Master Feature List (MFL), K drive, Directed Specification, CAN Bus data and CAN software and the PPAP, and the systems in place to manage their confidentiality. 135 The Hanwha parties cross-examined Tselepis as to Directed's discovery of the Hanhwa Enterprise Agreement after Directed's evidence in chief was filed. There was an attempt to explore whether the document was fabricated, however, this line of cross-examination ceased once I drew their attention to their own defence, in which YS Lee had confirmed his execution of that agreement. YS Lee's written evidence in chief and subsequent cross-examination made it clear that the agreement had been appropriately executed by the Hanhwa parties. 136 The Gridtraq parties also cross-examined Tselepis on his provision to Lee of the Directed Specification with an express confidentiality warning. He was also cross-examined in relation to a number of documents, including vehicle parameters that had been obtained/created during the Directed/Gridtraq JV. In his written evidence in chief he had said they were created by Directed. It became clear that he was partially mistaken. He had sought to discern authorship of some of the documents from the document's meta-data properties. On some occasions, his conclusions were incorrect. 137 Again, I had the advantage of seeing Tselepis' evidence in person. It was generally reliable save concerning some aspects dealing with the Gridtraq parties, but subject to the caveat that I referred to earlier concerning the evidence of both Tselepis and Siolis. 138 Floudas was the Chief Financial Officer of Directed. He provided evidence as to the OE Solutions' conduct, and to the size of the payments made by Directed to Hanhwa Korea and Leemen Korea over the years. As with other Directed witnesses, much of Floudas' evidence was not challenged. The Hanhwa parties sought to cross-examine him on the payment of tooling charges. 139 Vardon was a firmware engineer and consultant to Directed. He was the author of the Directed Specification, and a number of other specifications. He gave evidence confirming that the Directed Specification was necessary to enable communications to a telematics unit, and that it was not shared with the Gridtraq parties. He also gave evidence as to whether an adaptor could overcome some issues raised by the Gridtraq parties concerning the utility of the Directed Specification. I will discuss aspects of Vardon's evidence later. 140 Girgis was the only independent expert called in the case. None of the respondents called any independent expert. Girgis made three affidavits that embodied his opinions including his responses to the technical evidence of other witnesses. 141 The Hanhwa parties' cross-examination of Girgis did not touch in detail the substance of Girgis' opinions concerning the technical comparisons. Rather, the principal attack was on the reliability of his evidence given how it was prepared in conjunction with Directed's solicitors. The Hanhwa parties' counsel cross-examined only for 2.25 hours and it was essentially focused on such a process question. Having reviewed the video deposition, in my view Girgis adequately met this attack. I have also looked at the solicitors' time sheets, emails with Girgis and relevant calendar notifications, but they do not carry the Hanhwa parties far on this line of attack. 142 The effect of the Hanhwa parties' approach is that many of Girgis' conclusions, which were to the effect that the HAU8000 was derived from the SuperDAVE, and the LM series AV units were in turn derived from the HAU8000, went substantively unchallenged. Similarly his evidence about the accessories to the HAU8000 and the LM18I being the same as those for the DIR6200 and the DIR8000 and about the Polstar software supplied in relation to the LM units also went substantively unchallenged. I will elaborate in detail on such evidence later. 143 Contrastingly though, I should say that the Gridtraq parties' cross-examination over just more than a day in total by Mr Adrian Ryan SC was more substantial. Indeed it demonstrated to me that some of Girgis' opinions concerning the Gridtraq parties were over-stated and amounted in some respects to conjecture. Further, some of the opinions bordered more on purely factual questions rather than truly s 79 opinion evidence. I viewed the video deposition of Girgis' cross-examination and he was fairly and convincingly challenged if I might say so by Mr Ryan SC. 144 I will discuss Girgis' evidence in more detail later, first, in the section dealing with the technical comparison of the various units and accessories and, second, when dealing with the specific case against the Gridtraq parties. 145 Dane was a service and QA manager employed by Directed. He gave evidence concerning his background before joining Directed, his knowledge of the Hanhwa parties and the Gridtraq parties, and his role in creating various documents. He referred to the mechanisms at Directed to maintain document security. Much of his evidence was not challenged. In particular, he was not cross-examined in relation to his authorship of PPAP components. He was asked questions about the origins of some documents identified on the Seagate 2TB drive. He agreed that the source was Hanhwa. 146 It is convenient to note here that during the latter part of 2017, Meneses and Lee offered Dane a job at the Brooklyn premises. Dane initially agreed and even signed an employment agreement. However, he then sought advice from his accountant which led him to change his mind. Dane explained to his accountant the series of events, telling him that he "was a little bit concerned about the coincidence of Gridtraq being with Hanhwa". Acting on the accountant's advice, Dane did not pursue his notice of resignation. He remained with Directed, warning off a colleague who had likely received a similar form of solicitation. Directed sought to use Dane's reaction and state of mind collaterally against the Hanhwa parties and the Gridtraq parties, but in terms of evidentiary value this went nowhere. 147 Summers was a senior product development engineer employed by Directed. He also came across from TechAudio with his supervisor, Meneses. He deposed to this background, that Palone reported to him when at Directed, and his dealings with YS Lee and Lee. Under cross-examination, he explained in detail his visit to Hanhwa Korea in April 2016 to undertake an audit of the premises. His evidence about the input he and other Directed employees provided to the development of the DIR8000 and its accessories was unchallenged. He also gave responses about his own role in bench testing and in-vehicle testing of products developed with Hanhwa Korea. Under cross-examination he gave responses about the importance of the tear down procedure to test reliability of the unit, which would then be reported back to Lee. This included looking at the individual components to see if they were automotive grade, and whether they could improve the circuit board and the like. His concern was reliability, not pricing. 148 Summers conceded that he knew about some of Meneses' wrongful activities. He knew about the OE Solutions' conduct. In the second half of 2016, Meneses told Summers that Hanhwa was setting up business in the same building as Gridtraq. Meneses also told him in early 2017 that Phil Taylor of IAL was happy with the idea of Hanhwa supplying directly to IAL to get the price down. It was Meneses who also told him that the SuperDAVE was not going ahead and to box up all the materials. This was corroborated by a later email dated 27 July 2017 from Meneses to Bruce Clarke of Isuzu in New Zealand, informing him of this. He also knew about the D-MAX conduct. 149 Summers acknowledged that he could sometimes get it wrong. He also clarified some confusing evidence from Shin. Summers clarified that Shin had merged two distinct events into one. 150 Calleja was a telematics specialist employed by Directed. Meneses was his supervisor. He deposed to Meneses asking him to provide the logins for a range of portals which Calleja provided to him by an email dated 17 May 2017. He was confident on this when tested. Calleja had also been approached to work at Hanhwa but had second thoughts after a discussion with Dane. When pressed as to why he felt uneasy about seeing samples of the SuperDAVE at the Hanhwa Aus premises, he said that it was because he thought that IAL had scrapped that project, and that it was no longer going forward. When asked why he had formed the view that they were to be supplied to IAL, Calleja said that it was an IAL bespoke AV unit. 151 Pieries was a product manager employed by Directed. His evidence about the input he and other Directed employees provided to the development of the DIR8000 and its accessories was unchallenged. He deposed to his dealings with Lee. Under cross-examination, he explained that he often communicated to Hanhwa the mechanical engineering changes required. He referred to an all-day meeting regarding the development of the DIR8000. He deposed to his preparation of drawings, and gave oral evidence as to his role in modifying them. 152 Alexi Andrea was a senior hardware engineer employed by Directed. He was involved in the disassembly of a working sample of the DIR8000 to test reliability of the unit and to see if they were automotive grade. This included looking at each of the individual components and the circuit board. He prepared a written report in that regard, which was provided to Lee. He also gave evidence as to whether an adaptor could overcome some issues raised by the Gridtraq parties concerning the utility of the Directed Specification. 153 Arthur Proghios was a management accountant employed by Directed. He observed Meneses at Directed's premises from August 2017 to October 2017 after Meneses' purported resignation date. He was not challenged on this. He gave evidence relevant to OE Solutions' conduct in his capacity as a purchasing officer. He refuted the Lee assertions that Directed's confidential stock information was provided to Hanhwa by way of ordering forecasting. 154 Damien Jaffe was a business development manager employed by Directed. Jaffe was challenged on a range of matters suggesting he lacked an independent recollection of events. 155 Slade was a telematics trainer employed by Directed. He gave evidence concerning his role in "cleaning up" the K drive, for example, located on the Seagate 2TB drive. He was cross-examined briefly. He confirmed that unless you had a log-in to Directed's network you could not access the K drive. He confirmed his role in creating line drawings, as well as Meneses' solicitation of him to join Hanhwa Aus in October 2017. 156 Brent Stafford was an executive director employed by Directed since Meneses' departure. He provided evidence about Directed's failure to win the 2018 IAL tender. His evidence relevant to the importance of the input Directed's employees wrongfully provided during the development of the Polstar Software was unchallenged. 157 Directed also relied on the reports of Mark Schofield, Kenneth Chai, Justin Geri, Andrew Goatcher, and Bianca Quan, being independent experts who supervised the execution of search orders of the respondents' various premises on 27 October 2017 and/or assisted in the analysis of documents obtained therefrom. They were not required for cross-examination. Further, various lawyers for Directed who gave affidavits were not cross-examined. OE Solutions and Meneses 158 Meneses filed two affidavits for the purpose of his cross-claim, both in his capacity as the sixth respondent and the sole director of OE Solutions. However, those affidavits were not read. Meneses did not give oral evidence. Mills 159 Mills did not give oral evidence nor did he file any evidence in chief to be relied on at trial. However, Mills did file two confidential affidavits in support of his application for a privilege certificate pursuant to s 128A of the Evidence Act 1995 (Cth). These were subsequently made available for inspection. At trial Directed tendered parts of those affidavits without objection, save as to the belatedness of the timing of the tender, although of course such material could only be evidence against Mills. Hanhwa parties 160 Lee was the sole director of Hanhwa Aus and also the third and fourth respondents, holding the title of Managing Director of Hanhwa Korea. Lee initially made one affidavit for trial. After sitting through Directed's opening submissions, he filed three correcting affidavits, one in April 2020 and two in May 2020. Then, when presented with documentary evidence under cross-examination which parties would normally regard as uncontentious, he gave evidence contrary to their contents. He tried to explain their effect away on the basis that he told untruths to his staff. He claimed that he made up things that were not true to motivate them. Lee admitted to lying on various occasions. His evidence was unreliable. And as Directed pointed out, if documents were inconvenient, he said they did not mean what was apparent on their face. 161 Lee was cross-examined over many days. In my view Lee was not a reliable witness. 162 First, in addition to viewing his video deposition, I had the benefit of observing him when giving evidence on Directed's application to re-open. I thought his evidence on certain aspects was dissembling or evasive. Let me explain. 163 On 23 February 2021 I gave Directed leave to re-open its case on liability concerning the supply by Hanhwa Aus to IAL of HAU8000 units and accessories in 2020 and any proposed further supply in 2021. 164 In that respect, Directed made further pleading amendments and tendered further documentation. I also permitted the Hanhwa parties to file further affidavit material and I required Lee to attend for further cross-examination. 165 On 1 March 2021 I heard further evidence from Lee who was cross-examined by Mr Michael Wise QC for Directed. 166 Although Lee had a good knowledge of the detail, some of his evidence and explanations before me were unsatisfactory. So for example, he was questioned as follows: WISE QC: Now, you made two correcting affidavits to your October 2019 affidavit. You made them on 11 and 19 of May 2020? LEE: That's correct. … HIS HONOUR: There was an affidavit of 27 April. I'm not saying it's a correcting affidavit but it's a further affidavit of 27 April, which is obviously 10 days after the 17 April. WISE QC: Yes. So his Honour is pointing at that you also made a further affidavit on 27 April 2020. Do you agree with – you understand that, correct? A: Yes. Q: So what I want to suggest to you, Sir: in none of those affidavits have you made any reference to the fact that Isuzu was – had asked you to rework the HAU8000s that they had in their position. You did not – you didn't make any reference to that, correct? A: That's correct. Q: And you also did not make any reference to the fact that you had discussed, with them, the possibility of them purchasing more HAU8000s, correct? A: That is correct. Q: I want to suggest to you that in light of all of that, by not having corrected or made reference to those matters that had occurred in 2020 in your affidavits made in April of May 2020 you were intentionally leaving the court with the wrong impression that the HAU8000 supply was dead; you do you agree with that? A: No, it's not. It's not. They didn't actually order to Hanhwa ..... order to Hanhwa to, you know – to – to – to supply ..... We didn't actually make, you know, like, transaction between Isuzu in – in ..... and 380 that we sold in 2017, that was my affidavits. And this is ..... this is my – my last conversation with Isuzu people. They may look at ..... 1000 ..... from Hanhwa stocks. So this not going to form the proceeding because this is the true facts that they just purchased a – 388 unit, that's all. HIS HONOUR: Mr Lee, can I just take you back to page 82 of the Directed materials and paragraph 365? Lee: Yes. Q: You're there saying in your October 2019 affidavit? A: Yes. Q: That Isuzu was effectively walking away from the HAU8000 agreement. That's what you're intending to convey there, wasn't it? A: Yes, I was. Q: Yes. And yet if we go to page 13 of that same bundle, you're agreeing on 17 May 2020 to amend the HAU8000 agreement; is that right? A: Sorry, your Honour. Q: Have you got page 12 of that same bundle as a letter of 7 May of Isuzu? A: Yes, your Honour. Q: And if you go over the page, page 13, there's your signature agreeing to modify the HAU8000 agreement on 17 May 2000; is that right? A: Yes, your Honour. Q: Well, that's inconsistent with what you said in your October 2019 affidavit – that Isuzu was walking away from the HAU8000 agreement? A: Yes, your Honour. Q: So why didn't you correct that? A: I thought that was the – because – because – reworked ..... unit that conformed, and this is, like – we didn't – we didn't actually sell the back stocks to Isuzu, and this is, like – due to the global pandemic issue which is on – impact the situation in global – it was 2019, they just walked away from HAU8000 supply, but this is, like, a special promotion to supply Hanhwa – sorry – the – the clients that they have to reworked. So I didn't actually care of – of that agreement or care of that affidavit because that was – I thought that was true fact. 167 This was a good example of Lee playing "fast and loose" so to speak. 168 Second, he conceded during cross-examination the subject of the video depositions that he had misled others. 169 Third, much of his evidence in the contentious areas seemed to be at odds with the contemporaneous documents. 170 More generally, there was considerable force in the criticisms of his evidence made by Directed. 171 YS Lee was the sole director of Hanhwa Korea and the father of Lee, based in South Korea. His evidence in chief failed to address the secret commission conduct, the exclusive manufacturing agreement or the diversion of the SuperDAVE opportunity. Under cross-examination, and from my review of his video deposition, he was a forthright witness. 172 Shin was an electronics engineer employed by Hanhwa Aus in the role of Technical Manager. Between 2012 and September 2016 he held the same position employed by Hanhwa Hightech Australia, based in Australia. In my view he attempted to give truthful evidence. In relation to planned HAU8000 field testing in December 2016, he accepted some testing of it was done by him with Palone in an Isuzu truck at the time. His evidence in relation to a March 2017 four-day CAN Bus data testing process conducted with two Hanhwa Korea engineers confirmed that the HAU8000 was tested connected with an RA7000 telematics unit in an Isuzu truck. 173 Oh gave extensive evidence. She had significant involvement in the relevant conduct, including the misuse of confidential information, the diversion of opportunities, and copyright infringements. She is a sales and marketing manager working for Hanhwa Korea. She moved to Australia from South Korea for a period of time in March 2017, after visiting Australia twice in about 2016. When she moved to Australia, she did not work out of Directed's offices. She primarily worked from Hanhwa's premises at Brooklyn. She now lives again in South Korea. She reports to Lee. Oh was naturally reluctant to say anything contradicting her employer. I agree with Directed that she was given to making speeches putting forward the untenable case advanced by Hanhwa. However, when pressed on particular issues by reference to the contents of documents she made appropriate concessions. I did review her video deposition and for the most part she endeavoured to give truthful evidence, albeit that some of it was unreliable. 174 Palone gave evidence. He now works at the Brooklyn premises reporting to Meneses, for a company owned by Lee. Meneses is his friend. He previously worked at Directed for about eight years, commencing his apprenticeship there in 2010, and finishing up in December 2018. Palone made Directed's installation instructions, line drawings and other materials for the DIR6200 PPAP. He helped prepare units received from Hanhwa Korea to make them suitable to be fitted into Australian-delivered vehicles. He communicated with Hanhwa Korea in relation to the development of the DIR8000 through an "open/close list". He appeared keen to support the Hanhwa parties' case. He professed to have a good recollection of historical matters. But his evidence was compromised with his assertions of lack of recollection. Frankly, his evidence was not that reliable. 175 Jonghwa Han was a mechanical engineer employed in the role of Manager of the Mechanical Team by Hanhwa Korea. He was a reasonable witness, making a number of significant concessions. Han accepted he had no knowledge of the instructions or input Directed gave to Lee in relation to the creation or modification of renderings, MFLs, or prototypes and samples. His affidavit evidence stated that Directed never had any input into the mechanical design and development of a product. But he sought to amend this under cross-examination. He indicated that his intention was to suggest that Directed never had any input into the initial proposals of products made by Hanhwa Korea to Directed. However, he later conceded that because he did not know the discussions between Lee and Directed, he could not form such a judgment. Han further conceded that Hanhwa Korea sent samples to Directed for testing and feedback which was incorporated into a further sample. He accepted that Directed did contribute to the development of AV units. Further, Han conceded that he did not know much about the CPU aspect of AV products. This undermined aspects of his evidence concerning a purported difference between the CPU in the HAU8000 and the DIR8000. 176 Sanggyu Park was a hardware engineer employed in the role of Head of Development by Hanhwa Korea. Park never dealt with Directed or IAL in relation to the DIR8000 and all instructions came from Lee. He had no knowledge of the instructions provided by Directed to Hanhwa in relation to the design of the DIR8000 in the 12 months prior to August 2015. On more than one occasion, Park avoided answering questions regarding the similarities between the DIR8000 and HAU8000 in relation to the physical units and their MFLs. Instead, he claimed that as the tooling for the DIR8000 belonged to Hanhwa, it was entitled to develop it for the HAU8000. 177 Seyoon Kim was a software engineer employed by Hanhwa Korea and the head of design. He was reluctant to resile from his position even when confronted with conflicting documentary evidence. He did accept that Directed was the client of Hanhwa in respect of the DIR8000, and that ultimately Directed would decide whether the project would go ahead or not. He confirmed that he received all his instructions for the DIR8000 from Lee. He had no actual knowledge of what instructions or input Directed may have given to Lee in relation to the development of the DIR8000 or in relation to the creation or modification of different renderings. He did not know what design changes were requested by Directed to Lee, what instructions or input were given by Directed to the creation or modification of MFLs, prototypes and samples, or what feedback or instructions were given by Directed employees that arose as a result of their testing on prototypes and samples. 178 Chongwoon Kang, an engineer employed by Hanhwa Korea as Hardware Manager, made one affidavit but failed to attend for cross-examination. Gyeong Soo Jung, an electrical engineer employed in the role of Head of Production and Quality Assurance by Hanhwa Korea, also did not attend. He had made one affidavit. Both were required to attend for cross-examination. But they were not available for cross-examination and I have put their evidence to one side. 179 Nan-Shik Min, a proprietor of Hanhwa Enterprise, was the sole director of Leemen Korea and the mother of Lee. She personally paid commissions to Meneses on behalf of Hanhwa Enterprise. She did not give evidence. Sungmin Bin, a Hanhwa Korea employee, did not give evidence notwithstanding substantial involvement in the relevant alleged conduct, as evidenced by various documents. I was invited by Directed to accordingly draw Jones v Dunkel (1959) 101 CLR 298 inferences, but these did not seem to go anywhere in my view. Gridtraq parties 180 Both Allen Hartley and Dylan Harley gave evidence. 181 Allen Hartley moved to Australia from South Africa in about 2009. He was a director of Gridtraq, Webhouse and Quantam. Over a period of six years, Allen Hartley frequently attended and worked from Directed's premises concerning work on the Directed/Gridtraq JV. Initially, he was there on almost a daily basis, but later as the business became established he came in once or twice a week to meet with his son, Dylan Hartley, and with Siolis and Tselepis. He regularly attended meetings with Siolis, Tselepis and Dylan Hartley. Directed introduced Allen Hartley to Lee and to Meneses. Directed also introduced Hartley to IAL. He also received introductions to Mercedes and Daimler group representatives as part of the Directed/Gridtraq JV. 182 Directed said that Allen Hartley was an unsatisfactory witness. It said that he was argumentative, non-responsive and inclined to speeches to advance the Gridtraq parties' case. I disagree. I viewed his video deposition and in my view Directed's criticisms lacked substance. 183 Dylan Hartley was the operations manager of Gridtraq and is the son of Allen Hartley. He also moved to Australia from South Africa in September 2009 with his family. He was employed by the JV Vehicle from February 2010 until December 2015; it paid his salary. He had a dedicated desk at Directed's premises. He was responsible for the business operations, sales and supply of telematics units and services on behalf of the JV Vehicle. Directed said that Dylan Hartley's evidence was obfuscatory. It was said that he was inclined to lengthy answers intended to deflect. Directed said that he pursued a constructed narrative. I disagree. Again I viewed his video deposition and I thought he gave reliable evidence. 184 Generally, I viewed the video depositions and read the transcripts of cross-examination of both of the Hartleys. In my view both gave reliable evidence. There is no substance to Directed's criticisms which seem to have been refracted through Directed's distorted lens concerning the involvement of the Gridtraq parties. 185 Davidson also gave evidence. He was a director of Gridtraq, Webhouse and Quantam. He travelled frequently to Australia from South Africa as required to support the Directed/Gridtraq JV. He moved to Australia from South Africa in about April or May 2017. 186 Directed complained that Davidson's evidence in chief failed to address the work he undertook with Dylan Hartley in the testing of the CPU connected to both the DAVE and the HAU8000 AV units and the use of the Directed Specification in that regard. This was so, even though his attempts to work with Dylan Hartley to establish connectivity between the DAVE and the CPU and the use of the Directed Specification in that regard were dealt with by Allen and Dylan Hartley. Directed commented on his failure to refer to them at all. It is said that under cross-examination, he was difficult and unresponsive. Directed says that his evidence should generally not be accepted. I disagree. In my view these criticisms lacked substance. I viewed his video deposition and he came across as commercial, smart and direct. 187 Hugh Thibaud, the engineering director of Quantam, was not required for cross-examination. Thibaud received information and updates from his business partners, Davidson and Allen Hartley, but was otherwise not involved in the relevant events. He gave evidence to the effect that connection of the CPU to the HAU8000 would not have been possible as the CPU used RS232 and the HAU8000 used RS485 serial communication. Now I note for convenience at this point that Directed says that this was at odds with the representations in the 25 September 2017 Gridtraq presentation to IAL that connection had been achieved and Dylan Hartley's evidence that it was something that Gridtraq's engineers could easily overcome and develop a solution for and it promoted the CPU for use with the HAU8000. Directed says that his evidence as to why connectivity would not have been able to be achieved due to the lack of a suitable adaptor should be dismissed. It says that Girgis, Tselepis and Vardon said such a problem could cheaply be overcome by the use of a suitable adaptor. I will return to this dispute and resolve it later. Some legal principles 188 Before proceeding further, it is convenient to set out some legal principles relevant to the causes of action alleged. Let me begin with some contractual aspects. Implied terms in fact 189 Now I am here dealing with the question of implying a term into a contract rather than inferring the existence of a term. There was no dispute as to the applicable principles. 190 First, whether a term is to be implied is dependent upon the ascertained objective intention of the parties at the time of the agreement. 191 Second, the implication of a term in fact is required to satisfy the five conditions identified by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, viz: …[F]or a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. 192 Third, courts are generally slow to imply a term into an agreement (Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 346 per Mason J). 193 Fourth, Directed carries the onus of proving that such a term should be implied. And in the case of detailed commercial contracts which were the product of extensive negotiations and in which legal advisers were heavily involved, such an onus is more difficult to discharge. 194 Fifth, the test of whether the particular term "is necessary for the reasonable or effective operation" of the agreement of that nature enunciated in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422 per Brennan CJ, Dawson and Toohey JJ, which applies the observations of Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 573, deals with the context where there is no formal contract complete on its face. But that is not the present case concerning the Hanhwa Enterprise Agreement, given that the written form has now been located. The test in BP Refinery, rather than that referred to in Byrne or Hawkins, is the applicable test for the Hanhwa Enterprise Agreement. But the Byrne test does apply to the Hanhwa Korea Agreement. 195 Sixth, in terms of the necessity to give business efficacy, as Bowen LJ in The Moorcock (1889) 14 PD 64 at 68 made clear, one is seeking to identify "an implication from the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have". It must be "clearly necessary" in the context of the terms and circumstances of the particular contract and the particular relationship between the specific parties to the contract (Heimann v Commonwealth (1938) 38 SR (NSW) 691 at 695 per Jordan CJ); a broader context of necessity is applied when dealing with terms implied in or by law (see Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [28] per French CJ, Bell and Keane JJ). 196 Moreover, this "business efficacy" condition overlaps with the "so obvious" condition. In Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 at 605, Scrutton LJ said: A term can only be implied if it is necessary in the business sense to give efficacy to the contract; that is, if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, "What will happen in such a case," they would both have replied, "Of course, so and so will happen; we did not trouble to say that; it is too clear." 197 Seventh, the implication of a term in fact, as distinct from a term implied in law or a term implied from custom or usage, is an exercise in interpretation or construction, although not an orthodox one. 198 Eighth, whether one is interpreting the express terms or identifying and then filling any gaps between the express terms, one is seeking through an objective exercise to identify the presumed intention of the parties. After all, one is seeking to give effect to the objectively ascertained meaning or intention of the parties. The output of that exercise may, in one context, result in a particular construction of an express term. In another context, it may result in the implication of a term to fill such a space. Spaces inevitably arise, if only because of Wittgenstein's "language games" or because of the limitations on human foresight or the drafter's ingenuity. Implied terms in law 199 A term is implied in law in employment contracts that obliges employees to render faithful and loyal service to their employer, and to avoid conduct incompatible with the continuing relationship of trust and confidence between them (Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81 per Dixon and McTiernan JJ). This contractual duty of fidelity and good faith is implied as a term of all contracts of that class. It may derive from the fiduciary obligations which employees may owe to their employers, although such fiduciary obligations have different conceptual foundations (see Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [30] per French CJ, Bell and Keane JJ); I have expressed myself in doubly qualified terms because an employment relationship does not necessarily entail or give rise to fiduciary obligations (University of Nottingham v Fishel [2000] ICR 1462 at 1490 to 1493 per Elias J). 200 An employee will contravene such an implied term if he engages in activities which are incompatible with the fulfilment of his duty or involve an opposition or conflict between his interest and his duty to his employer (Blyth Chemicals at 81 and 82 per Dixon and McTiernan JJ). 201 The scope of the contractual duty of fidelity owed by senior employees may be more extensive and exacting than that owed by more junior employees. 202 The contractual duty also operates to preclude employees from disclosing or using their employer's confidential information. The scope of this contractual duty in this dimension can be seen for practical purposes as co-extensive with any equitable duty of confidence that might arise by reason of the circumstances in which particular information was imparted. 203 In considering whether an item of information falls within the implied term so as to prevent its use or disclosure by an employee after his employment ceases, it is necessary to consider all the circumstances of the case. 204 Further, there was no doubt that both Meneses and Mills by reason of their employment with Directed: (a) were under an obligation during the term of their employment, and after termination of their employment, to keep confidential information provided to them by Directed; (b) owed a duty to Directed to maintain trust and confidence with Directed and not to do anything likely to destroy or damage such a relationship of trust and confidence; and (c) owed a duty to render faithful and loyal service to Directed and not to do anything in conflict between their interest and their duty to Directed. 205 These implied contractual duties of fidelity and good faith were implied by the employment relationship and the underlying fiduciary relationship. Interference with contractual relations 206 It is convenient to begin by referring to Donaldson v Natural Springs Australia Limited [2015] FCA 498 at [202] to [220] where I made the following points. 207 There are various dimensions to the economic tort of interference with contractual relations. So, it is appropriate to be clear on the categories. 208 The relevant interference must be deliberate. But it can be direct or indirect. Where the interference is direct, the relevant act of persuasion, inducement or procurement is treated as being unlawful in and of itself. But where the interference is indirect, an independent unlawful act is required. 209 The paradigm case of interference concerns direct interference which amounts to procuring or inducing a breach of contract (Lumley v Gye (1853) 118 ER 749). 210 The various elements of the classic Lumley v Gye tort are not in doubt. First, there must be a contract. Second, the respondent must know that such a contract exists. Third, the respondent must know that if one of the contracting parties does or fails to do a particular act, that conduct would be a breach of the contract. Fourth, the respondent must intend to and in fact induce or procure that contracting party to breach the contract by doing or failing to do that particular act. Fifth, the breach must cause loss or damage to the applicant. Sixth, no defence of honest and reasonable belief should be applicable. 211 Now it is not in doubt that the gravamen of the tort is intention to induce or procure breach, with knowledge that such a breach will interfere with contractual rights (Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 43 per Lindgren J). And wilful blindness or reckless indifference can constitute knowledge for this purpose. Further, knowledge of the contract may provide a sufficient basis for inferring the necessary intent. In other words, a person's knowledge that he is by his conduct inducing a breach of contract may be sufficient to establish the required intention (see Allstate Life Insurance at 37). Questions of knowledge and intention are interrelated. However, a bona fide belief reasonably entertained that so to act would not result in a breach of contract might negate the requisite intent (see Short v City Bank of Sydney (1912) 15 CLR 148 at 160 per Isaacs J). 212 Now as I have said, from knowledge one may be able to infer intention. But it is intention that must be shown. So, for example, merely to show that the tortfeasor could or did foresee the consequence of tortious conduct is not sufficient. 213 Further, let me say something more on the question of knowledge of the contract, if it be said that that is the foundation from which intention can be established by inference. In some cases, where the contract is of a standard type or a standard class of contract, it may not be necessary for the tortfeasor to have precise knowledge of its terms for intention to be inferred. But where one is not dealing with such standard scenarios, in order for the claimant to establish intention by inference from knowledge, it may be necessary to establish knowledge of more precise aspects or terms of the contract. This will all depend on the nature of the case being advanced and the type of breach being asserted. So, in the present case, being a case dealing with a non-standard or bespoke contract scenario, for Directed to establish the tort, it needed to show that the alleged tortfeasor had knowledge of the relevant terms of the agreement. 214 Further, for the tort of inducing breach of contract, a distinction should be made between "procuring" or "inducing" on the one hand, and "advising" on the other hand. The former may be actionable. The latter is not. To induce a breach is to create a reason for breaking it. To advise a breach is to point out that a reason already exists. 215 So, even if the requisite knowledge is established, the inducing or procuring conduct must itself be proved. In Allstate Life Insurance, Lindgren J cited with approval what was said by Street J in Short v City Bank of Sydney (1912) 12 SR (NSW) 186 at 202 to 203 that: The words "induce" and "procure" in their ordinary significance, I think, convey the idea of persuasion or contrivance, and I think that a person complaining of a breach of contractual relations brought about by these means must show that the person whose actions are complained of did something in the nature of effectually persuading or prevailing upon the other party to the contract to violate his obligations under it. The persuasion may take the form of advice or friendly solicitation, or it may take the form of intimidation or molestation, but in every case I think that it must be shown that the defendant deliberately intervened between the contracting parties, either with the express design of depriving the plaintiff of the benefit of his contract, or under such circumstances that he must have known that the effect of his intervention would be to deprive the plaintiff of that benefit. 216 Merely facilitating a breach, or entering into a transaction that is inconsistent with the contracting party's obligations, is insufficient. It must be established that the relevant impugned conduct operated on the will of the contracting party. If the contracting party has already decided to commit a breach, no liability attaches to the mere acceptance of the benefit of that breach. 217 The element of inducement or procurement represents a high bar. It is not enough for the alleged wrongdoer to know that a breach may well happen or is the natural and probable consequence of the alleged wrongdoer's activities; he must take some step which manifests an intention to induce the breach. What must be shown is some persuasion, encouragement, assistance or pressure that is aimed at the contract such that there is a clear causal link between the respondent's conduct and the breach. 218 Before discussing indirect interference, I should note that direct interference can extend to conduct that prevents or hinders a party's contractual performance or encourages the same even though this may not amount to procuring or inducing a breach of contract as such. 219 Now in addition to direct interference, the tort may also be established by an indirect interference with contractual relations. But if indirect interference is relied upon, then unlawful conduct or means must be established as part of the interference. To appreciate why this is necessary, it is important to be clear about what is meant by indirect as compared with direct interference. Direct interference occurs where the respondent's act or omission, whether as intervener or persuader, acts on the mind or position of one of the parties to the contract. Indirect interference occurs where the respondent's act or omission acts on the mind or position of a third party (for example an employee or officer of a contracting party) which causes that third party to take or not take a step which then acts on the mind or position of one of the contracting parties. So expressed, one can appreciate why unlawful means are imposed as a requirement for indirect interference. The direct interference is prima facie unlawful because it directly touches one of the contracting parties and their contractual rights. But the same cannot be said where the respondent's conduct acts first on a third party who is not a contracting party. Some other element of unlawfulness needs to be added beyond the ultimate intention of the respondent in seeking to interfere with the contract. The question is whether the action of the respondent on the third party involves an unlawful or wrongful act. Has the respondent persuaded or caused the third party to do an unlawful or wrongful act? 220 Whether the tort can be established by indirect interference is not beyond controversy. The High Court has not dealt with this directly. In Zhu v Treasurer (NSW) (2004) 218 CLR 530 the Court expressed the tort in broader terms than inducing a breach of contract. First, it referred to the tort in terms of an interference with contractual relations, connoting that something short of causing a breach may be sufficient to establish the tort. Second, in the proceedings at first instance, a claim for indirect interference was made. The High Court referred to this indirect interference claim (at [38]) without exception; it was not said that indirect interference could not in appropriate circumstances constitute the tort. Although Zhu principally turned upon the defence of justification, it provides implicit support for a tort of interference with contractual relations, embracing both direct and indirect interference. 221 Lord Hoffmann in OBG Ltd v Allan [2008] AC 1 distinguished the different genesis of the tort of inducing breach of contract as compared with the English tort of causing loss by unlawful means. Further conceptual divisions were made categorising the former tort as one of accessorial liability and the latter tort as one of primary liability. He rejected a unified tort theory embracing both torts, but he did accept a Venn diagram type description. Now in 1995 the High Court rejected a more general economic tort of causing loss by unlawful means. And it has also been lukewarm about a slightly narrower economic tort in theory of interference with trade or business interests by unlawful means. I do not need to trouble myself further at that conceptual level. 222 But there is one aspect of Lord Hoffmann's discussion concerning direct and indirect interference with contractual relations that is worth mentioning. His Lordship expressed doubt as to the tort of indirect interference with contractual relations. Rather, he preferred to put such conduct into the broader category of the tort of causing loss by unlawful means. 223 Lord Hoffmann said (at [38]): In my opinion, therefore, the distinction between direct and indirect interference is unsatisfactory and it is time for the unnatural union between the Lumley v Gye tort and the tort of causing loss by unlawful means to be dissolved. They should be restored to the independence which they enjoyed at the time of Allen v Flood. I shall therefore proceed to discuss separately the essential elements of each. 224 His Lordship addressed what he considered to be an unsatisfactory distinction by making two related moves. First, he took indirect interference and put it into the broader category of the tort of causing loss by unlawful means. That move is not available to me. Second, by doing so, he confined Lumley v Gye to its plain vanilla application. But again, I do not consider that the tort of interference with contractual relations is so restricted. 225 His Lordship suggested that Lumley v Gye created accessorial liability, dependent upon the primary wrongful act of the contracting party, whereas indirect interference, which required unlawful means, was a tort of primary liability. So he considered that blending indirect and direct interference into the one tort was inappropriately blending primary and accessorial liability. Now whether that is so does not affect the approach I am required to take. But this primary and accessorial liability distinction may not be all that clear or clean. Accepting that indirect interference involves a tort of primary liability, so too may be the case with direct interference. Direct interference may involve, in some cases, not inducing a breach as such. It may involve preventing or hindering a contracting party's performance which does not involve or produce a breach. In such a case, such conduct of the respondent would not amount to accessorial liability, for there would be no "primary wrongful act of the contracting party" [my emphasis]. In such a situation of direct interference the respondent would have primary liability. 226 In my view, the tort of indirect interference with contractual relations is available under Australian law. But both the relevant intention as well as the separate unlawful conduct or means must be established as being involved in the interference. Now there is an issue as to what "unlawful" entails or embraces. But much depends on the context of the particular economic tort being discussed. To describe it as the infringement of some right may be useful, but not sufficient. I do not need to elaborate further as this is not the case advanced by Directed. 227 Let me at this point say something concerning the relevant defence to a tort of this nature. 228 In Short v City Bank of Sydney, Isaacs J held that to constitute a good defence to the tort, there must be a relevant belief on reasonable grounds. He observed (at 160): A bona fide belief reasonably entertained that it was not a breach of contract would be fatal to the claim. If the defendant did not know of the existence of the contract, he could not induce its breach; if he reasonably believed it did not require a certain act to be performed, his inducing a party to the contract to do something inconsistent with it could not be regarded as an inducement or procurement knowingly to break the contract; if he believed on reasonable grounds that the contract had been rescinded, or performance waived, when in fact it had not, he could not be said to knowingly procure its breach. Fiduciary duties 229 Let me turn to the question of fiduciary duties. There is little doubt that the employer-employee relationship is an established category of fiduciary relationship, although the scope of any fiduciary duty must be moulded to the nature of the particular relationship and the facts of the case. 230 At one level of generality, the employer-employee relationship is an established category of fiduciary relationship (Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96 and 97 per Mason J). But the scope of the duty has to be moulded to the nature of the particular relationship and the facts of the case (Hospital Products at 102 per Mason J). It is inappropriate to take a "one size fits all" approach to whether an employee owes fiduciary duties to an employer (University of Nottingham at 1490 to 1493 per Elias J). 231 In my view, fiduciary duties arose in the context of the relationship between Directed and each of Meneses and Mills given their level of seniority, their positions of responsibility and the relevant circumstances. In particular, Meneses and Mills were subject to a duty not to use their position with Directed, or information obtained by virtue of their position with Directed, for their own benefit or for the benefit of another including setting themselves up in a rival or competing enterprise. Generally, a fiduciary is under "an obligation not to promote his personal interest by making or pursuing a gain in circumstances in which there is a conflict or a real or substantial possibility of a conflict between his personal interests and those of the persons whom he is bound to protect" (Hospital Products at 103 per Mason J). 232 Directors and senior employees are precluded from obtaining for themselves or another any property or business advantage belonging to their employer, or for which it has been negotiating. They are not entitled to appropriate for themselves or divert to another with whom they are or may be associated a maturing business opportunity which the employer is actively pursuing. This is particularly so where the director or senior employee has been a participant in the negotiations on behalf of the employer (Canadian Aero Service Ltd v O'Malley (1973) 40 DLR (3d) 371 at 381 and 382 per Laskin J). 233 As a consequence of their employment with Directed, Meneses and Mills owed fiduciary duties to Directed not to place themselves in a position where their interest or duty to someone else conflicted with their duty, when acting within the scope of their employment, to act in the best interests of Directed, and not to take advantage of their position as an employee for the benefit of a person other than their employer. 234 Moreover, the scope of Meneses' duties in particular is informed by the fact that at the time he engaged in the impugned conduct, he held a relatively senior position at Directed, which involved a degree of autonomy and required him to engage directly with Directed's clients. Moreover, in his role, Meneses had full access to Directed's computer systems, emails, information about current and potential customers, and customer relationship management software. 235 Let me make some general observations. 236 In Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1 at [67] to [70], Gageler J stated in the context of a fiduciary duty, and particularly the duty of loyalty, the following: [The] duty of loyalty is imposed in equity by means of two overlapping "proscriptive obligations". Each proscriptive obligation, or "theme", is "descriptive of circumstances in which equity will regard conduct of a particular kind as unconscionable and consequently attracting equitable remedies". "The first", often referred to as the "conflict rule", "is that which appropriates for the benefit of the person to whom the fiduciary duty is owed any benefit or gain obtained or received by the fiduciary in circumstances where there existed a conflict of personal interest and fiduciary duty or a significant possibility of such conflict: the objective is to preclude the fiduciary from being swayed by considerations of personal interest." The unconscionability which attracts equitable remedies in circumstances where the conflict rule alone is invoked lies not so much in receipt by the fiduciary of the benefit or gain (over which the fiduciary need not have control) as in retention by the fiduciary of the benefit or gain which in conscience ought to be disgorged to the principal. "The second", often referred to as the "profit rule", "is that which requires the fiduciary to account for any benefit or gain obtained or received by reason of or by use of [the] fiduciary position or of opportunity or knowledge resulting from it: the objective is to preclude the fiduciary from actually misusing [the fiduciary's] position for [the fiduciary's] personal advantage." The unconscionability which attracts equitable remedies in such circumstances lies in pursuit by the fiduciary of self-interest, or, more precisely, in pursuit of an interest other than the exclusive interest of the principal. Consistently with the objective of imposing each obligation, in neither case does the benefit or gain to the fiduciary need to be at the expense of the principal, though it may be. And in neither case does the fiduciary need to act dishonestly or fraudulently, or otherwise than in good faith, though again the fiduciary may do so… (Footnotes omitted.) 237 Further, at [85] he said: The benefit or gain for which a fiduciary or knowing participant is liable to be ordered to account must, as a baseline requirement, have a causal connection to the fiduciary's breach of equitable obligation. The requisite causal connection was explained in Warman to exist if the benefit or gain has been obtained "by reason of" the fiduciary position, where the relevant breach is of the conflict rule, or if the benefit or gain has been obtained "by reason of" the fiduciary taking advantage of an opportunity or knowledge derived from the fiduciary position, where the relevant breach is of the profit rule. (Footnotes omitted.) 238 Generally, when a senior officer or employee of a company diverts an opportunity obtained by reason or by use of his fiduciary position, the benefits of taking that opportunity belong in equity to the company, irrespective of whether the company could have availed itself of the opportunity (Warman International Ltd v Dwyer (1995) 182 CLR 544 at 558). 239 And as also said in Furs Ltd v Tomkies (1936) 54 CLR 583 at 592 per Rich, Dixon and Evatt JJ: It is no answer to the application of the rule that the profit is of a kind which the company could not itself have obtained, or that no loss is caused to the company by the gain of the director. It is a principle resting upon the impossibility of allowing the conflict of duty and interest which is involved in the pursuit of private advantage in the course of dealing in a fiduciary capacity with the affairs of the company. If, when it is his duty to safeguard and further the interests of the company, he uses the occasion as a means of profit to himself, he raises an opposition between the duty he has undertaken and his own self interest, beyond which it is neither wise nor practicable for the law to look for a criterion of liability. The consequences of such a conflict are not discoverable. Both justice and policy are against their investigation... 240 Now the scope of a fiduciary duty must be tailored to the nature of the relationship between the parties and the facts of the case. In terms particularly of Meneses' functions and responsibilities as they concerned Directed, I would express his fiduciary duty relating thereto in terms used in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 by Finn, Stone and Perram JJ at [177] that he was a person that: …has undertaken to perform such a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other to expect that he or she will act in that other's interest to the exclusion of his or her own or a third party's interest… 241 The essence of a fiduciary relationship is that one party exercises power or discharges their duties on behalf of another and pledges himself to act in the best interests of the other. 242 Generally, a fiduciary is under an obligation not to promote his personal interest by making or pursuing a gain in circumstances where there is an actual conflict, or a real or substantial possibility of a conflict, between his personal interests and those of the persons whom he is bound to protect. Senior employees are precluded from obtaining for themselves or another any property or business advantage belonging to their employer. They are not entitled to appropriate for themselves or divert to another with whom they are or may be associated a maturing business opportunity, particularly one which the employer is actively pursuing. 243 A fiduciary's position inhibits him not only in respect of business opportunities that the company is actively pursuing, but also opportunities in which the company might reasonably be expected to be interested, given its current line of business. It is not necessary to show that the opportunity taken by the fiduciary is one that could have been exploited by the company. That is, the pursuit of the opportunity by the fiduciary gives rise to a possible conflict between the fiduciary's personal interest and ongoing duty, which is unacceptable. Statutory duties 244 Let me turn then to Meneses' and Mills' statutory duties. 245 Section 182(1) of the Corporations Act 2001 (Cth) provides that: A director, secretary, other officer or employee of a corporation must not improperly use their position to: (a) gain an advantage for themselves or someone else; or (b) cause detriment to the corporation. 246 Impropriety for these purposes consists of a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers, and authority of the position and the circumstances of the case (R v Byrnes & Hopwood (1995) 183 CLR 501 at 514 and 515 per Brennan, Deane, Toohey and Gaudron JJ). Impropriety is to be determined objectively; it does not depend upon the officer's or employee's consciousness of impropriety. 247 Section 183(1) provides that: A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to: (a) gain an advantage for themselves or someone else; or (b) cause detriment to the corporation. 248 "Information" in s 183(1) covers any information that a person may have acquired because of their position in the company. 249 The duty owed under s 183(1) continues after a person ceases to be an officer or employee of the company. 250 Meneses and Mills owed statutory duties to Directed pursuant to s 182(1), during the term of their employment by Directed, not to improperly use their position as an employee to gain an advantage for themselves or someone else or to cause detriment to Directed, and pursuant to s 183(1), during and after their employment by Directed, not to improperly use information which they obtained because they were an employee to gain an advantage for themselves or someone else or to cause detriment to Directed. 251 And again, impropriety for present purposes consists of a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers, and authority of the position and the circumstances of the case. 252 For the purposes of s 183, "information" covers any information that a person may have acquired because of their position in the company. Moreover, that information need not be confidential. Further, the duties owed under s 183 continue after a person ceases to be an employee of the company. 253 Further, I should also say at this point that the accrual of an advantage or the suffering of detriment is not necessary to establish a breach of the statutory duties. It is sufficient to establish that the conduct was carried out in order to gain an advantage, not that the advantage was actually achieved. Confidential information 254 The elements of an action for breach of an equitable duty of confidence are the following. 255 First, the information the subject of the claim must have the necessary attribution or quality of confidence and have been identified with specificity rather than generally or globally. 256 Second, the information has to be obtained or imparted in circumstances identifying or importing an obligation of confidence; this could arise by reason of the nature of the relationship between the parties or the circumstances applying to the particular occasion when the information was obtained or imparted. 257 Third, there has been an unauthorised use or threatened use of that information (Dart Industries Inc v David Bryar & Associates Pty Ltd (1997) 38 IPR 389 at 405 and 406 per Goldberg J; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 and 51 per Mason J). 258 As I have said, the information must have the necessary quality of confidence (Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215 per Lord Greene MR). That is, it must be something not within the public knowledge. There are various indicia of whether information is confidential (see the six indicia identified in Mense & Ampere Electrical Manufacturing Co Pty Ltd v Milenkovic [1973] VR 784 at 796 to 798 per McInerney J). It is a question of fact in all the circumstances. 259 It is unnecessary that the recipient of the alleged confidential information appreciated that the circumstances imported an obligation of confidence; it is sufficient that a reasonable man would have so appreciated. 260 Moreover, where a party has applied skill and ingenuity to produce a compilation, equity may treat the entire compilation of information as confidential, even where some of that information is publicly available. 261 I should also note that a fiduciary may breach both fiduciary obligations and obligations of confidence by the same conduct where, for example, an employee takes confidential information of his employer without consent and uses it to further a scheme which is contrary to the employer's interests. The equitable duty of confidence may also be coextensive with an implied duty of fidelity owed by an employee to his employer. Further, such equitable duties survive the termination of the employment relationship. 262 Relatedly in the present context, the implied contractual duty of fidelity owed by an employee to his employer, which prevents an employee from acting to the detriment of his employer, includes not disclosing confidential information to an unauthorised third party or using it to his own advantage. That duty survives the cessation of employment (Cranleigh Precision Engineering Ltd v Bryant [1964] 3 All ER 289 at 296 per Roskill J); but even if the contractual duty did not survive termination, the equitable duty would. Accessorial liability 263 The claims made against the Hanhwa parties and others include claims of accessorial liability. It is said that they aided or abetted or have been directly or indirectly involved or knowingly concerned in Meneses' and Mills' breaches of their statutory duties to Directed. Further, it is said that they knowingly assisted in Meneses' and Mills' breaches of their equitable duty of confidence and their breaches of fiduciary duties. 264 Let me set out briefly some relevant principles. 265 First, in terms of the ss 182 and 183 breaches, a person is "involved" in a contravention if the person has aided, abetted, counselled or procured the contravention or has induced the contravention, or has been in any way directly or indirectly, knowingly concerned in, or party to, the contravention. 266 For Directed to succeed on the accessorial claims, it is necessary to prove that the Hanhwa parties had actual knowledge of the essential facts constituting the contravention (Yorke v Lucas (1985) 158 CLR 661 at 670 per Mason ACJ, Wilson, Deane and Dawson JJ); but it is not necessary to show that they knew that the relevant conduct contravened the statute. Now strictly Directed must show more than that the Hanhwa parties, if it be the case, wilfully and recklessly failed to make such inquiries as an honest and reasonable man would make or had knowledge of circumstances which would indicate the facts to an honest and reasonable man. Concepts of constructive knowledge in the context of a claim under the second limb of Barnes v Addy (1874) LR 9 Ch App 244 have no direct relevance to accessorial claims concerning statutory breaches. However, such concepts may be relevant to the question of any inference to be drawn. 267 Now Directed seemed to rely upon what was said by Leeming JA in Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 at [140], but those propositions have little direct bearing on the present context. I am at this point dealing with accessorial liability where actual knowledge or as good as actual knowledge must be demonstrated. 268 But I accept of course that awareness of suspicious circumstances and the failure to make inquiry may sustain an inference of actual knowledge (Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 220). So too, wilful blindness may sustain such an inference. But I do not consider that in the present case from what was known by the relevant respondents that such an inference should be drawn. The inference that Directed seeks me to draw is not the only rational inference. Further, if the facts known to the alleged accessory demonstrate an apparently innocent act or, at least, as equally demonstrate that as not, then no finding of actual knowledge or an inference drawn as to actual knowledge can be made. 269 Let me also say something further concerning ignorance by setting out the classic statement of Lord Sumner tendering the advice of the Privy Council in The Zamora (No 2) [1921] 1 AC 801 at 812 in the following terms: …It may be that in his anxiety not to state more than he found against Mr Banck, the learned President appeared to state something less, but there are two senses in which a man is said not to know something because he does not want to know it. A thing may be troublesome to learn, and the knowledge of it, when acquired, may be uninteresting or distasteful. To refuse to know any more about the subject or anything at all is then a wilful but a real ignorance. On the other hand, a man is said not to know because he does not want to know, where the substance of the thing is borne in upon his mind with a conviction that full details or precise proofs may be dangerous, because they may embarrass his denials or compromise his protests. In such a case he flatters himself that where ignorance is safe, 'tis folly to be wise, but there he is wrong, for he has been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise… 270 Let me also refer to Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 at [15] where Moore J said (Mansfield J agreeing): I should add that, in my opinion, liability as an accessory (in circumstances where the contravening conduct of the principal was making false or misleading representations) does not depend on an affirmative answer to the question whether the alleged accessory knew the representations were false or misleading. All that would be necessary would be for the accessory to know of the matters that enabled the representations to be characterised in that way. In a comparatively simple situation, such as the situation considered in Yorke v Lucas, where particular representations were being made to individuals or groups of individuals, knowledge of those matters would almost inevitably result in the alleged accessory also knowing the representations were false or misleading. Had Lucas known of the real turnover figures, then it is difficult to imagine that he would not have appreciated, additionally, that what he was saying about the business was false and misleading. 271 This observation was made in the context of Moore J's observations at [12] where he said: The majority [in Yorke v Lucas] used two expressions in these passages. One is "essential matters" making up the offence and the other is "essential elements" of the contravention. It is relatively clear from the example used in the first passage, that the expression "essential matters" comprehends matters of fact which must be known to the alleged accessory before liability arises. The example given (from the facts in Giorgianni v The Queen (1985) 156 CLR 473) was knowledge of the condition of the brakes. On any view of what was held by the High Court, accessorial liability only arises in the present matter if it is at least demonstrated that the alleged accessory knew of the facts which constituted the conduct of MBF which contravened the ASIC Act. 272 Now Directed has proved the underlying contraventions by Meneses and Mills. But it must prove that the Hanhwa parties knowingly participated, that is, that they had actual knowledge at the relevant time of each essential matter going to make up the contraventions. Moreover, actual knowledge may be inferred where there is a combination of suspicious circumstances and a wilful failure to make inquiry. I should say now that I am satisfied that Lee had the relevant knowledge and that his state of mind can be attributed to Hanhwa Korea, Leemen Korea and Hanhwa Aus. For relevant purposes he was the relevant directing mind and will given his conduct and his responsibilities. 273 Second, Directed has made a claim under the second limb of Barnes v Addy. As to the claim of knowing assistance concerning breach of fiduciary duties, the relevant principles are not in doubt concerning the knowledge requirement. 274 The relevant knowledge must be established at one of the following four descending but ever expanding levels explicated by Peter Gibson J in Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 (at 575 and 576) some decades ago, being: (a) actual knowledge; (b) wilfully shutting one's eyes to the obvious; (c) wilfully or recklessly failing to make such enquiries as an honest and reasonable man would make; and (d) knowledge of circumstances that would indicate the facts to an honest man. 275 The fifth level, namely, knowledge of circumstances that would put an honest and reasonable man on enquiry is not part of Australian law (see Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 at 398 and 399 per Gibbs J and at 412 per Stephen J). Indeed to use that fifth level would be to disregard equity's concern for the state of conscience of the defendant; see also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [171] to [178]. 276 But to establish such knowledge is not in and of itself sufficient. The relevant breach of fiduciary duty must have a particular characterisation in terms of the conduct of the principal actor, which is said to have been knowingly assisted by the secondary actor. The relevant breach of fiduciary duty must be dishonest and fraudulent. Mere breach of fiduciary duty without dishonesty and fraud is not sufficient to establish accessorial liability. Dishonesty in this context may be established by conscious impropriety including knowingly appropriating another's property or information, whether or not the wrongdoer sees nothing wrong in his behaviour. And in terms of explaining what dishonesty is not, it may be said that an honest person does not intentionally deceive others to their detriment, does not knowingly take others' property and does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of beneficiaries. 277 Further, it may be queried whether it needs to be shown that the person who is alleged to have given assistance had the intention of furthering the dishonest and fraudulent breach of fiduciary duty as distinct from just having the relevant knowledge. I am inclined to the view that the preponderance of authority that binds me does not go that far. 278 Further, as this is a serious allegation, it has to be assessed in accordance with principles of the type set out in Briginshaw v Briginshaw (1938) 60 CLR 336 (see s 140(2)(c) of the Evidence Act). 279 For completeness, although I have discussed the second limb of Barnes v Addy only, there are other categories of liability for third party participation in another's breach of fiduciary duty not involving a dishonest and fraudulent design on the part of the fiduciary (see the useful observations in Grimaldi at [242] to [247]). The present case is not a suitable vehicle for any further disquisition on that aspect. 280 Third, as to the claim of knowing assistance in terms of a breach of an equitable duty of confidence, although the relevant cascading levels of knowledge that I have just discussed may still apply, nevertheless it is not necessary to characterise the breach in the same way as one might for a claim concerning knowing assistance in a breach of fiduciary duty. Diversion of business opportunity 281 Let me say something concerning the diversion of a business opportunity and make reference to three authorities. 282 In Beam v Stewart 833 A 2d 961 (Del Ch, 2003), Chancellor Chandler dealt with a derivative action brought by a shareholder (Beam) on behalf of a company (MSO) against, inter-alia, Martha Stewart (Stewart) a director and L. John Doerr (Doerr) a former director. One of the counts in the complaint concerned the sale of Stewart's and Doerr's shares in MSO to entities designated as "ValueAct". Before the Chancellor was a summary motion to dismiss the complaint. For present purposes, I need to discuss only Count III, which alleged that Stewart and Doerr had breached their fiduciary duty of loyalty by usurping a corporate opportunity by selling large blocks of MSO shares to ValueAct. 283 Now the Chancellor referred to a four pronged test in the following terms (at [3] and [4]): The basic requirements for establishing usurpation of a corporate opportunity were articulated by the Delaware Supreme Court in Broz v. Cellular Information Systems, Inc.: [A] corporate officer or director may not take a business opportunity for his own if: (1) the corporation is financially able to exploit the opportunity; (2) the opportunity is within the corporation's line of business; (3) the corporation has an interest or expectancy in the opportunity; and (4) by taking the opportunity for his own, the corporate fiduciary will thereby be placed in a position [inimical] to his duties to the corporation. (Citation omitted.) 284 As to the first limb, he said (at [5]): The amended complaint asserts that MSO was able to exploit this opportunity because the Company's certificate of incorporation had sufficient authorized, yet unissued, shares of Class A common stock to cover the sale to ValueAct. Defendants do not deny that the Company could have sold previously unissued shares to ValueAct. I therefore conclude that the first factor has been met. 285 Equally that may be said to be the case before me in relation to many of the so-called diverted opportunities. 286 As to the second limb, he said at [6] and [7]: An opportunity is within a corporation's line of business if it is "an activity as to which [the corporation] has fundamental knowledge, practical experience and ability to pursue." Because I have already determined that MSO had sufficient authorized but unissued shares available and because no special expertise is required to issue stock, I find that the "ability to pursue" prong is met. The question then becomes whether selling its own stock is an activity as to which the Company has fundamental knowledge and practical experience. Plaintiff states that the Company's line of business is "creat[ing] 'how-to' content and domestic merchandise for home-makers and other consumers." Nevertheless, the Court recognizes that raising capital is a fundamental activity in which businesses are often engaged. MSO made its initial public offering in October 1999. Therefore, in a strictly literal sense, the Company, like any stock corporation, "has fundamental knowledge and practical experience" in the activity of selling its stock in exchange for capital contributions. This conclusion, however, does not help plaintiff in this instance. MSO is a consumer products company, not an investment company. Simply stated, selling stock is not the same line of business as selling advice to homemakers. Further, I would presume that a company's "line of business" is one that is intended to be profitable. By definition, a company's issuance of its stock does not generate income. For the foregoing reasons, I therefore conclude that the sale of stock by Stewart and Doerr was not within MSO's line of business. (Citations omitted.) 287 Now as to this second limb, under Australian law the formulation is not so narrow. Applying Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 at 143 to 148 per Lord Russell of Killowen and cases which have followed these principles ever since, I do not think that any narrow approach needs to be taken to "line of business". But in any event it is satisfied in the case before me. 288 As to the third limb, the Chancellor said the following (at [8] and [9]): A corporation has an interest or expectancy in an opportunity if there is "some tie between that property and the nature of the corporate business." Requiring a tie to the "nature of the corporate business" implicates many of the issues discussed above regarding MSO's line of business. The Broz Court found that the company in that case, CIS (a company in the business of providing cellular phone service to the Midwest), had no interest or expectancy in the Michigan-2 license in question because CIS was divesting its cellular license holdings and its business plan did not contemplate any new acquisitions. Here, plaintiff does not allege any facts that would imply that MSO was in need of additional capital, seeking additional capital, or even remotely interested in finding new investors. Had MSO wished to do so, it had a readily available, liquid market in which to accomplish that aim, as MSO's Class A stock is traded on the New York Stock Exchange. I fail to see any connection between the potential sale of stock to ValueAct and the nature of MSO's business. Further, issuance of new shares without a need or desire for new capital is perceived to have negative effects on preexisting shareholders, as the new capital may not be effectively used to increase earnings at the same time that the preexisting shareholders' proportionate interests in the corporation have decreased. Plaintiff presents no indication that MSO had any expectation, interest, or necessity to raise capital through new issuances of stock, nor can I reasonably infer such from the amended complaint. In the absence of specific allegations indicative of corporate interest or expectancy, I must conclude that this factor of the Broz test has not been met. (Citation omitted.) 289 That third limb is also satisfied in the case before me. 290 As to the fourth limb, the Chancellor said (at [10] and [11]) the following: [T]he corporate opportunity doctrine is implicated only in cases where the fiduciary's seizure of an opportunity results in a conflict between the fiduciary's duties to the corporation and the self-interest of the director as actualized by the exploitation of the opportunity." Given that I have concluded that MSO had no interest or expectancy in the issuance of new stock to ValueAct, I fail to see, based on the allegations before me, how Stewart and Doerr's sales placed them in a position inimical to their duties to the Company. Were I to decide otherwise, directors of every Delaware corporation would be faced with the ever-present specter of suit for breach of their duty of loyalty if they sold stock in the company on whose Board they sit. Additionally, Delaware courts have recognized a policy that allows officers and directors of corporations to buy and sell shares of that corporation at will so long as they act in good faith. A corporation generally "has no interest in its outstanding stock or in dealing in its shares among its stockholders." Plaintiff cites only one case purported to be to the contrary – Thorpe v. CERBCO, Inc. Thorpe involved a bidder who approached the management of Insituform East, Inc. desirous to purchase the company. In bad faith, management withheld this information from the outside directors, lied by saying that the bidder had not expressed interest in purchasing the company, threatened to block any sale of the entire company, and simply informed the board a bidder wished to buy the inside directors' controlling interest. I would attempt to compare the well-pled facts in this case to those in Thorpe, but I am unable to do so because the amended complaint fails to provide any factual detail about the circumstances surrounding the stock sales, alleging only that the transactions occurred. Delaware jurisprudence favors certainty and predictability. Directors must "make decisions based on the situation as it exists at the time a given opportunity is presented." In the absence of allegations based on well-pled facts that call into question the propriety of Stewart and Doerr's sales at the time they made them, it is impossible to infer that they acted in bad faith in selling their shares or placed themselves in a position inimical to their duties to MSO. Given the allegations before me, the fourth factor of the Broz test is not met. On balancing the four factors, I conclude that plaintiff has failed to plead facts sufficient to state a claim that Stewart and Doerr usurped a corporate opportunity for themselves in violation of their fiduciary duty of loyalty to MSO. Count III is dismissed in its entirety under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Citations omitted; original emphasis.) 291 As to the fourth limb, that has been satisfied by what Meneses in particular facilitated through the Hanhwa parties. 292 In my view, Meneses' conduct facilitated through the Hanhwa parties is generally speaking captured by Lord Russell's observations in Regal (Hastings) Ltd at 144 and 145 in the following terms: My Lords, with all respect I think there is a misapprehension here. The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff, or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned, cannot escape the risk of being called upon to account. 293 But it is convenient to make one other observation concerning Regal (Hastings) Ltd at this point. Lord Russell went on to conclude in the following terms (at 149): In the result, I am of opinion that the directors standing in a fiduciary relationship to Regal in regard to the exercise of their powers as directors, and having obtained these shares by reason and only by reason of the fact that they were directors of Regal and in the course of the execution of that office, are accountable for the profits which they have made out of them. 294 Now Lord Russell's lens, explicable on the facts before him, was that the directors obtained the relevant shares "by reason and only by reason of the fact that they were directors of Regal and in the course of the execution of that office". If Lord Russell's observation is limited only to explaining the facts before him, I have no difficulty with it. But if it is to be construed as imposing a necessary condition in all cases of such a narrow nexus, I would prefer the more flexible formulation in Howard v Federal Commissioner of Taxation (2014) 253 CLR 83 at [63] and [64] where Hayne and Crennan JJ described the matter in the following terms: …A director's diversion of the company's business opportunity will also commonly (perhaps inevitably) engage the director's obligation not to be in a position of conflict. But regardless of whether the obligation to avoid conflicts is engaged, a critical question presented for consideration in relation to the obligation not to obtain unauthorised benefits will be whether the director has obtained a benefit by reason or by use of the relationship between that director and the company. That question requires careful attention to how and why it is said that the director obtained a benefit by reason or by use of the relationship. And as Regal (Hastings) Ltd v Gulliver demonstrates, if the opportunity came to the director in the course or as a result of holding office as a director, it is not to the point to establish that the company could not or would not have exploited the opportunity. In Regal (Hastings), the directors of the company were held bound to account to the company for their profit despite the company's inability to raise the capital necessary to undertake the venture from which the directors made their profit. (Citations omitted; original emphasis.) 295 They then went on to say at [86] as follows: …Instead, it is necessary to ask whether the identified gain or profit was obtained or received by reason or by use of the appellant's position as a director of Disctronics or by reason or by use of any opportunity or knowledge resulting from that position. … (Citation omitted; original emphasis.) The drawing of inferences 296 A finding may be made in the absence of direct evidence. All that is necessary is to demonstrate the more probable inference from the circumstances. "More probable" means no more than that upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood. A party who relies on circumstantial evidence to prove a fact must show that the circumstances raise the more probable inference in favour of what is alleged. 297 It is not sufficient that the circumstances give rise to conflicting inferences of an equal degree of probability or plausibility or that the choice between them can only be made by conjecture. I accept though that the process of inference may involve an intuitive element that is not susceptible to detailed support or explanation. 298 There is a distinction between inference and conjecture even if the reasoning process occurs on a continuum in which there is no bright line division. A conjecture, even though plausible, is no more than a guess, whereas an inference is a deduction from the evidence. If the deduction is reasonable, the inference may rise to legal proof. But there must be objective facts from which the inference could be drawn, otherwise what is left is mere speculation or conjecture (Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 and 170 per Lord Wright). 299 Generally, the proper inference to be drawn on the balance of probabilities depends upon a practical and reasonable assessment of the evidence as a whole. The question of factual causation 300 Factual causation is generally resolved through an application of the "but for" test. The "but for" test entails a determination on the balance of probabilities that the particular harm that in fact occurred would not have occurred absent the conduct of the party in breach. The question is whether a particular act or condition was one of the conditions or relations necessary to complete the set of conditions which represent the cause posited. This is the basis of the "but for" test of causation. But the "but for" test is not the exclusive test of factual causation. 301 Further, it is not enough to demonstrate that the relevant breach materially increased the risk of harm or loss. The breach must be the or a cause including a material contribution. Nevertheless, a breach causing a material increase in risk may provide, together with other circumstances, a foundation for inferring causation, including a material contribution to the loss, in the absence of any sufficient reason to the contrary. 302 Further, it is irrelevant to inquire whether the breach was the dominant, effective or real cause of the loss. If the evidence is suggestive of multiple causes, the inquiry to be made is whether the breach was a cause of the loss. 303 It has been said that the question whether a breach of contract has caused a loss is a question of fact applying common sense principles. It is said that the common law applies the ordinary man's notion of causation instead of theories espoused by philosophers and scientists. Clearly, the object of the common law theory of causation is not the same as that of a philosophical or scientific inquiry into causation. But the conceptually elusive if not inutile phrase "common sense", when discussing questions of causation in the present context, adds little to the problem solving task. 304 Before proceeding further, it is necessary to be clear about the following three different levels of analysis that need to be undertaken. 305 First, what is the context within which and why is the question of causation being posed? In the present context one of the perspectives being addressed is an alleged breach of contract. Another perspective is a breach of fiduciary duty. What is then being considered is whether that breach was a or the cause of the relevant damage or loss. So, the lens through which causation is to be assessed starts from the proper identification of the relevant perspective for why the inquiry is being undertaken. The perspective from which causation is then to be addressed is not some diffuse or decontextualised inquiry. The lens through which causation is to be assessed must identify the act, omission, state of affairs or circumstance said to constitute the breach of the relevant normative standard. That identification is not to be described in the language of "common sense". Further, questions of causation require identification of the particular harm that was suffered. Identification of the damage sustained by a claimant will assist in identifying the acts or omissions that were its cause. 306 Second, once that contextual lens has been identified, the question then arises as to whether factual causation has been established in terms of the usual "but for" or necessary condition test by reference to linking the act, omission, state of affairs or circumstance referred to with the alleged damage or loss. But even here, to use the vernacular of "common sense" is conceptually unhelpful in a case involving forensic complexity. Moreover, it is otiose in a case where the facts are simple and factual causation obvious. 307 Third, once that factual question has been analysed, the legal question arises, if factual causation has been established, as to whether the relevant party should be held legally responsible for that loss or damage. Alternatively expressed, is the damage within the relevant scope of liability? But this is a legal question depending in part upon the nature of both the breach and the damage alleged. It is difficult to see how the vernacular of "common sense" has utility for this third level of analysis. One is not talking of the common sense of the layman. Moreover, one is not truly talking of the "common sense" of the lawyer, but rather a conceptual and evaluative legal question upon which reasonable minds might differ. Indeed, lawyers have struggled with this conceptual question and have sought refuge in adjectives such as "direct", "natural and probable", "direct and natural", "proximate", "real effective" and so on to categorise potential cause(s) to address the legal question. And even where they have agreed on the label, differences have arisen in their application. Further, other problems have arisen with scenarios that have had to deal with concurrent sufficient causes, causes that are neither necessary nor sufficient conditions with or without other elements, and novus actus interveniens questions. March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ is authority for a common sense test or a common sense value judgment, but it was a tort case not a contract case. The value of such a test in my context may be doubted. Finally, on one view, this third level of analysis is not a causation question at all, but rather a legal responsibility question once factual causation has been answered (the second level of analysis) through the relevant lens (the first level of analysis). It has been suggested that the substantive meaning of causation has been inappropriately comingled with this latter question of legal responsibility or the associated phrase "scope of liability", as Professor Jane Stapleton in "Cause-in-Fact and the Scope of Liability for Consequences" (2003) 119 Law Quarterly Review 388 explains. Her views may be said to resonate with those of trial judges mining facts from the coal face of forensic inquiry. 308 There are several other preliminary observations that should be made. One can understand some jurists using the language of "common sense". If one was instructing a jury, such simplistic language has an attraction. Further, many scenarios involving causation are straightforward with the answer being intuitively clear without further factual reflection at least. Further, some jurists are understandably keen by the use of the vernacular of "common sense" to distinguish the lawyer's use and context of causation from that of the scientist or the philosopher. But to so distinguish does not entail that the only contrast is with a "common sense" test. Moreover, although that distinction from other fields of discourse is correct when looking at the first and third levels of analysis referred to above, the line is not so brightly drawn for the second level of analysis, where concepts from one context can assist in the conceptualisation of another. 309 I do not need to develop these matters further at this stage. Let me now turn to the detailed factual chronology. Detailed factual chronology 310 It is convenient at this point to set out a detailed chronology of various factual findings, interspersed with some commentary in relation to some aspects that I will return to later. These findings are based on the evidence adduced or inferences therefrom. This section of my reasons contains a detailed chronology over an expansive period referable to the claims against all parties. It will be necessary to later set out more tailored chronologies referable to specific claims against specific parties. 311 In March 2009, Meneses told Lee, who he had met some years earlier, that TechAudio where he had previously worked was going bankrupt and that he was taking his business to a new organization operated by the Directed group of companies. 312 Between 2009 and 2011, YS Lee met Siolis at Directed's premises, and also on occasions when he visited Hanhwa's premises in Korea, and at trade fairs in Hong Kong. Meneses was present on some occasions. Lee met Siolis and Tselepis in 2009. 313 In mid-2009, Meneses commenced employment at Directed in the role of Business Development Manager pursuant to his employment agreement entered into on 11 May 2009. 314 Mills also commenced employment at Directed in the role of Project Manager pursuant to his employment agreement entered into on 1 June 2009. He reported to Meneses. 315 On 1 July 2009, the 2009 secret commissions agreement was made between Hanhwa Enterprise and Meneses through his company, OE Solutions, by which a service charge equating to 3% of the shipped order amount was to be paid to Meneses' Westpac bank account in exchange for services he rendered to Hanhwa Enterprise. The agreement was signed by YS Lee and Meneses. Pursuant to its terms, Meneses was to co-ordinate the on-going business between Directed and Hanhwa and control and develop new business for Hanhwa. 316 Now Hanhwa Enterprise had commenced paying commissions to Meneses from 2005, prior to him joining Directed. In fact there was an agreement made on 1 August 2005 between Hanhwa Enterprise and OE Solutions in almost identical terms to the 2009 secret commissions agreement signed by the same parties. Now pursuant to the 2009 secret commissions agreement, money was paid into Meneses' personal bank account. Contrastingly, in the 2005 version it was paid into an OE Solutions' account. 317 This conduct was kept secret. YS Lee confirmed that he did not disclose the existence of the 2009 secret commissions agreement to Siolis. 318 According to Lee, his father told him around 2009 that Meneses was Hanhwa's salesman in Australia. YS Lee said that the moneys paid under the agreement were commissions on sales. Lee says he also understood Meneses to be a director of Directed. 319 Hanhwa Enterprise started supplying products to Directed in 2009. The first unit that Hanhwa and Directed worked on together was the DIR4800. Hanhwa required Directed to pay for the tooling up front. 320 In 2009, Lee relocated to Australia, working for Hanhwa Enterprise at that time. He worked out of Directed's premises from about 2013, for two to three days a week. 321 Let me digress for a moment and deal with another topic. 322 As I have said earlier, Directed and its directors and shareholders were involved in a joint venture through the JV Vehicle with Allen Hartley and Davidson to sell and supply GPS based telematics systems to OEMs and truck owners. The JV Vehicle provided the on-line portal through which telematics services were provided to truck owners and OEMs. 323 From the commencement of the Directed/Gridtraq JV, Dylan Hartley was employed by the JV Vehicle, but based at Directed. 324 In 2009, Lee and Dylan Hartley met each other for the first time at Directed's premises. Dylan Hartley also met Meneses when he started working at Directed's premises. 325 In February 2010, documents were exchanged and signed in relation to the JV Vehicle. The JV Vehicle planned to distribute Bandit technology through Siolis' and Tselepis' established relationships. This technology was owned by Davidson's company. 326 In that month, a shareholders' agreement, which I have previously referred to as the JV Vehicle Shareholders Agreement, was made between the interests of Siolis, Tselepis, Davidson and Allen Hartley which formalised the arrangements. It contained terms including the following restraints: 15.1 No shareholder shall at any time, while he is a shareholder or thereafter, directly or indirectly, use for his own benefit or the benefit of any other person, and shall keep confidential and not disclose to third parties, any trade secrets or confidential information of GH, its trading company and or its subsidiaries as applicable. 15.2 The restraints set out in clause 15.1 shall endure permanently. 15.3 For the purpose of this clause, the expression "trade secrets and confidential information of GH" shall mean all information pertaining to GH and its business which is not available on request to a member of the general public, including but not limited to the technical detail, techniques, know-how, methods of operating, costs, pricing, licensing, names of customers and potential customers of GH and details of their businesses. … 15.5 The parties record that, as shareholders of GH, each shareholder will acquire confidential information and trade secrets relating to GH its trading company and or its subsidiaries as applicable. In the circumstances each shareholder agrees that it is fair and reasonably necessary for the protection of GH's business and proprietary interests that it should be restrained from competing with GH for a reasonable period. 15.6 Each shareholder accordingly undertakes not, without GH's prior written consent, to be interested or engaged, whether directly or indirectly and whether as proprietor, partner, shareholder, director, member of a close corporation, employee, agent, consultant or otherwise, in any firm, business or undertaking which carries on any activity, either solely or in conjunction with any other person, in direct competition with the business carried on by GH at the date on which he ceases to be a shareholder. … 15.8 The restraints set out in clauses 15.4.1, 15.4.2 and 15.6 shall apply in every state of Australia and every other country where GH carries on business or is likely to carry on business, and shall endure while the shareholder is a shareholder and for a period of 2 years after it ceases for any reason to be a shareholder. … 15.14 Each shareholder shall ensure that its members, employees and consultants, and each director appointed by it adhere to the provisions of this clause 15 as if each such person were that shareholder. 327 Entities associated with each of Siolis, Tselepis, Davidson and Allen Hartley were each to hold 25% of the issued share capital of the JV Vehicle. For present purposes the only relevant clause is clause 15 which embodies various restraints. There is a question as to the extent to which these restraints were later released under a Deed of Agreement and Release on 29 March 2016, which I have previously referred to as the Deed of Release. Further, it should be noted that clause 15 is not directed to the position of Dylan Hartley as an employee or former employee. 328 From about February 2010 until December 2015, Dylan Hartley, as a full time employee of the JV Vehicle, ran the day-to-day operations of the Directed/Gridtraq JV. The JV Vehicle sold a telematics unit which was manufactured by STI, a company owned by Tselepis, which was also sold by Directed to OEMs. 329 Let me return to the Hanhwa – Directed relationship. 330 By mid-2010 Hanhwa Enterprise regarded Directed as a large and important customer. Moreover, Hanhwa Enterprise had the DIR4850 in development. This was an AV unit to be supplied by Directed to UD. 331 By July 2010 Directed had spent approximately AUD 2 million in setting up the Directed business and developing, testing and marketing the DIR4800, DIR4850 and the Orion. It had paid to Hanhwa Enterprise AUD 227,143 in advance of supply for the tooling for the DIR4800 for supply by Directed to IAL in April 2009. It purchased approximately AUD 6 million of products from Hanhwa Enterprise. 332 On 27 July 2010, the Hanhwa Enterprise Agreement was executed with Directed. The supply agreement was an express written "umbrella" agreement between the parties. Directed engaged Hanhwa Enterprise to provide manufacturing services to Directed for their specific products. Hanhwa Enterprise agreed to manufacture products in accordance with the specifications of Directed and to supply them to Directed. 333 In October 2010, Hanhwa Enterprise invoiced Directed for a tooling charge for the DIR4850, which Directed paid. Tooling costs are not significant having regard to the prospect of earning millions of dollars in sales. The typical life of an AV unit is four to five years. 334 In December 2010, Hanhwa Enterprise and Directed worked on another AV unit being the Orion. This was the first unit developed by Hanhwa Enterprise from scratch with Directed. Directed was required to and did pay for the tooling costs. 335 A further AV unit called the DIR6100 supplied by Directed to Hino was based on the design of the Orion. The cost of the tooling for this was less, and the development took less time being based on an earlier existing unit. This tooling was also used for Hino, and for other models. 336 Notwithstanding this relationship between Hanhwa Enterprise and Directed, YS Lee continued to pay commissions to Meneses. YS Lee distinguished between Meneses' work and personal email addresses, sending the remittances of commission to his personal email address. He did not discuss it with Siolis and Tselepis. YS Lee confirmed that all amounts of commission paid by Hanhwa Enterprise and later Hanhwa Korea were calculated on the basis of purchases made by Directed from Hanhwa Enterprise or Hanhwa Korea. This was also the case in relation to Directed's later purchases from Leemen Korea. Sometimes commission was based on 3% of sale price; other times a fixed dollar amount per unit was paid. 337 In 2012, Allen Hartley was introduced to YS Lee at Directed's premises. Later the Gridtraq parties engaged with Hanhwa to pursue business opportunities. 338 In 2012, Tselepis, Siolis and Meneses introduced Lee and YS Lee to various representatives of IAL. 339 On 7 February 2012, Hanhwa Korea was registered and commenced to carry on the business formerly carried on by Hanhwa Enterprise. 340 On 17 May 2012, the 2012 secret commissions agreement was made between Hanhwa Korea and the Meneses parties. Apparently, the reason for the agreement was the change in entity carrying on the business from Hanhwa Enterprise to Hanhwa Korea. Lee says this was when he first became aware that Meneses was being paid sales commissions. Yet in 2009 Lee understood that Meneses was Hanhwa's salesman in Australia and also a director of Directed. YS Lee confirmed that he never disclosed the existence of this agreement to Siolis or Tselepis. 341 Part of Meneses' role under that agreement was to ensure that Directed continued to purchase product from Hanhwa Korea, and to promote new business. After Lee forwarded the 2012 secret commissions agreement to Meneses, Lee received an email from Meneses stating, "please ONLY send this info to my home email ONLY!!!!!". Lee did not contest that there was a need for secrecy, but attributed this need not to the fact of the bribes, but to their size. His evidence was that Meneses feared that Siolis and Tselepis might become jealous if they had highlighted to them the size of commissions. 342 Let me now say something concerning the genesis of the DIR6200 unit. 343 By 2012, Hanhwa Korea or its predecessor had been developing products in conjunction with Directed for about three years. In 2012, Directed commenced supplying to IAL an AV unit called the DIR6200 or DAVE (Digital Audio Visual Entertainment), which was manufactured from scratch for Directed by Hanhwa Korea. Its development took about 14 months. Directed paid Hanhwa Korea for the tooling. Directed also sold to IAL accessories and navigation licences for the DAVE. 344 Now an issue between the parties is the level of Directed's involvement in the development process for the DAVE or DIR6200. Directed's position is that the AV units were automobile parts which had to be tested to an exacting standard. The work involved was more than doing final quality control before passing on the unit to IAL or other customers. Directed's employees were heavily involved in this development process. This included meeting with customers and discussing their requirements, bench testing, testing in trucks, pulling units apart and assessing their quality and requesting changes, and making AV units suitable for fitting. Further, there was the necessary document preparation. But Lee asserted that Directed was no more than a middle man or a mere distributor. But the fact that Directed paid for the tooling is inconsistent with this, as is the extensive testing of multiple samples of each unit and the evolution of the product based on Directed's feedback and requirements. Directed's characterisation of its involvement is more accurate. 345 At the end of 2012, Directed was Hanhwa Korea's largest customer overall. Sales by Hanhwa Korea to Directed represented about 80% of Hanhwa Korea's global business. Sales via Directed included IAL (45%), Hino (16%), UD (9%) and Orion (8%). The only items not supplied to Directed were to Toyota, with some accessories. I should also note that all of the products Hanhwa Korea designed and supplied to Directed had a DIR prefix. 346 By August 2013, Lee was head of the sales and marketing division of Hanhwa Korea, but based in Australia. He was responsible for its development planning team, the international sales team and the design team. Directed remained Hanhwa Korea's largest customer by way of sales. 347 Now as I have indicated, Lee had started working from Directed's premises by then. He had his own desk, and he attended internal meetings of Directed employees. Because of his attendance at meetings and at Directed's offices, he became aware of commercial business opportunities that Directed was trying to exploit. He was also invited to and did attend some meetings between Directed and IAL. He was also provided by Meneses with minutes of meetings with IAL which Lee passed on to Hanhwa's engineering people. 348 From at least 2013 until at least 2016, Meneses regularly put Lee on notice concerning aspects of the commissions, the method of calculation and payment and asked him to follow up. From 2013 Lee was the main Hanhwa Korea person to talk to Meneses about the commissions. Meneses would follow up with Lee, who in turn telephoned his father to follow up. 349 On 25 December 2013, the business name LEEMEN was registered in Australia in the name of the Meneses family trust, with the organisational representative being OE Solutions and with the email address being that of Meneses. 350 In 2013, Hanhwa also developed, together with Directed, daytime running lights (DRLs) for supply by Directed to IAL. Directed paid Hanhwa for the tooling. 351 In 2014, Directed commenced supplying IAL with telematics units. Directed also provided telematics services to fleet operators who had trucks fitted with telematics units. Now for the DAVE (DIR6200) to operate with Directed's telematics unit, what was required was a suitable communication interface, a harness, and a software communications protocol; for convenience, and as Directed has done, I will refer to this as the Directed Specification. 352 Now from 2014, payment for tooling was not made as an upfront amount but was made as an agreed amount per unit amortised over a certain number of units. In Lee's original evidence, he suggested that there was no agreement from 2014 for Hanhwa Korea to incur the cost of tooling in the first instance and to amortise it into the supply of products going forward. But he modified this evidence to maintain that tooling was to be upfront for AV products but not small accessories. 353 Let me now say something concerning the genesis of the SuperDAVE project. 354 In August 2014 Directed told Hanhwa Korea about a new supply opportunity to IAL. Meneses contacted Lee and told him that IAL would be launching a new model truck which would be coming to Australia the following year. It would be ready for launch in about August 2015. In those circumstances Directed was looking for a new AV unit. 355 Now Lee recognised the confidentiality of Hanhwa Korea's own business information. But he refused to recognise that new product opportunities could be confidential information of Directed. He regarded them as open. In his evidence he distinguished between the Hanhwa perspective and the Directed perspective. This is to be contrasted with YS Lee who for example recognised that the ICL opportunity was confidential as Directed and Hanhwa Korea were working together. This was the correct perspective. In my view YS Lee's position on confidentiality also applied to the analogous disclosure by Directed of what has come to be described in this proceeding as the SuperDAVE opportunity. 356 In late 2014, Directed commenced the SuperDAVE project for IAL with a product code DIR8000. This was a new AV unit and accessories range. The SuperDAVE was intended to replace the DAVE. The project was initiated following a meeting between Ian Shanks of IAL, Siolis and Meneses in late 2014. The project involved extensive communications between the parties on all issues necessary to bring the product to market. Directed employees were heavily involved. 357 In 2015 there was continuing work on the SuperDAVE project. Key features of the proposed AV unit at this stage were the following: the Android OS 4.2; an 8-inch capacitive touch screen; a remote control; reversing cameras; four camera connections; four-way split mode screen; TPMS (tyre pressure monitoring system) as an accessory; rear parking sensor as an accessory; and ADAS (advanced driver-assistance system). 358 There was further work on an MFL, which is a comprehensive list of all the features of the AV unit, for the customer to see and understand. The MFL had to be approved by Directed. Further, there were two other documents that had to be approved by the customer concerning the design process. These were the rendering and the GUI (graphical user interface). If any of these three documents were not approved by the customer, the further development of the product could not proceed. 359 Meneses continued to keep Lee up to date on the IAL new audio unit. The design was not yet fixed. Hanhwa responded to requests by Directed for changes. Lee said that they needed to have feedback from Directed. 360 Further, when Directed told Hanhwa that it had an issue or a problem, Hanhwa was responsive to the request. Hanhwa had to work out from a mechanical or an electronics perspective how to fix it. Changes occurred over the course of the next two years by a process of input from Directed to Hanhwa. Directed as Hanhwa's customer gave Hanhwa suggestions or requests for changes to be made, and Hanhwa made those changes. Some of these reflected input from IAL to Directed which then made the request of Hanhwa. 361 On 12 March 2015, Lee shipped three design mock-up samples to Meneses being a 6.5 inch design, a 7-inch design, and an 8-inch design for Directed to liaise with IAL and then nominate which size it wanted. 362 In April 2015, there was a schedule change with a shipment of samples to Directed to be postponed until November 2015. As to the design of the SuperDAVE, this had not yet been fixed. 363 On 20 May 2015, Lee notified Meneses that they would send a new design. Directed makes the point that if the design had not been settled, tooling costs could not yet have been fixed. Now a quote had been included for tooling costs. The purpose was to obtain Meneses' opinion on the tooling costs. But there was no request to pay. As at 15 June 2015, tooling costs had not been confirmed. 364 On 23 July 2015, Meneses sent IAL a presentation and MFL for the SuperDAVE. The MFL described the telematics system and that an RS485 chip would be built into the hardware. The proposal was for the new unit to have in built telematics capability. 365 On 27 August 2015, IAL conveyed concerns to Meneses about the costs of the SuperDAVE, and sought modifications to keep costs down. 366 To address IAL's concerns, on the same day Meneses asked Lee if he could supply the proposed AV unit to Directed for USD 650. I note that later, Hanhwa Korea ultimately supplied the AV units to Hanhwa Aus for USD 650. 367 Further, Meneses informed Lee that total landed cost would be AUD 1,067.86 plus tooling amortization of AUD 30.00 per unit over 10,000 units. Lee accepted that Meneses was adding an amount of tooling amortised per unit over 10,000 units. But he claimed that the amortization arrangement was not between Directed and Hanhwa Korea, but between Directed and IAL. But Lee later acknowledged that the email suggested that Meneses was trying to persuade him to provide the unit at USD 650 and inter-alia AUD 30 per unit amortised over 10,000 units for tooling. Meneses also informed Lee that based on this, which included the reference to tooling amortization, Directed would charge IAL AUD 1290, so Directed could achieve a profit of AUD 192.40 per unit. Later, when Hanhwa Aus ultimately provided the HAU8000 to IAL, it waived the tooling charge. 368 There were subsequent discussions between Directed and Hanhwa Korea on price. 369 Now I note that in October 2015, a Hanhwa current outstanding remittance report referred to outstanding amounts payable by Directed. But there was nothing indicating an outstanding amount for the DIR8000 tooling. Lee said that this was because they had no purchase order. 370 Late in October 2015 a working sample of the SuperDAVE was received by Directed. Directed personnel performed tests on it. 371 On 13 November 2015, Summers sent Lee an open and close list for the SuperDAVE. The open and close list was a method by which Directed and Hanhwa raised issues that needed to be resolved. This might go back and forth between the parties. Hanhwa would then attempt to resolve issues or offer a solution. 372 By November 2015, NavNGo, who was the navigation supplier for Directed, had been provided with a sample of the SuperDAVE for implementation of the mapping solution. The NavNGo representatives sought direction from Directed about how to deal with the navigation solution. 373 On 18 November 2015, Summers conveyed a significant issue being that the sample unit had failed a heat test. On 19 November 2015, Pieries of Directed commented to Lee on tests Hanhwa had conducted to ensure that the unit met Australian design regulations, but which had failed the requirements. 374 By December 2015, Directed's code for the SuperDAVE had been changed to DIR8000 from DIR6500. This reflected IAL's choice of an 8-inch design, which had been conveyed to Lee via Meneses. 375 On 9 December 2015, Summers provided Meneses and Lee with a tear down report. This involved pulling apart a sample of the DIR8000 to examine the parts and make comments, which were sent to Lee for his consideration, comment or changes. An outcome of the report was that the CPU was to be changed. In response to a query about the Exynox CPU, Hanhwa stated that they would change it to the Nexell S5P6818 octa-core CPU. Had the DIR8000 gone into production, this is the CPU that would have been used. 376 The DIR8000 was designed to work with Directed's telematics unit. The MFL specified it and the GUI of the DIR8000 contained telematics icons. The software and hardware of the DIR8000 operating working samples were required to have telematics connectivity and functionality with the Directed telematics unit. 377 Let me just digress in the chronology at this point and deal with two topics. 378 First, in 2015 the accessory side of the Hanhwa business previously carried on by Hanhwa Korea commenced to be carried on by Leemen Korea, which was a company then recently incorporated. The parties continued their supply arrangements as before. 379 Second, let me say something about an opportunity that arose concerning ICL. ICL is a division of IAL's parent entity in Japan. It is a global distributor of IAL parts and accessories. 380 In January 2015, Yuji Tsukano of ICL contacted Meneses by email at Directed, expressing interest in the DAVE. ICL requested sales history, specifications and other information. This was a business opportunity for Directed to supply the products that it was then supplying to IAL more widely than in Australia and New Zealand. 381 Meneses forwarded the ICL email to YS Lee. When YS Lee received the email, it was clear to him that ICL in Japan had contacted Directed expressing interest in the DAVE unit, that Meneses had arranged to visit ICL in Japan in response to the request, and that Meneses had discussed the matter with IAL. YS Lee recognised that this was a confidential business opportunity for Directed. Meneses' email to YS Lee told him not to contact ICL at that stage. YS Lee understood this to mean that Directed did not want Hanhwa Korea to contact ICL about it without Directed's approval. 382 Between February and May 2015, ICL and Meneses continued to exchange emails including plans for the proposed trip. During the course of this correspondence, Meneses attached a copy of a presentation concerning Directed and the DAVE unit. 383 At this point, let me digress and deal with another relevant topic. 384 On 11 August 2015, Heads of Agreement were executed by Hanhwa Korea and Quantam. 385 Clause 1 contained relevant introductory sub-paragraphs and provided: Quantam owns and controls certain Intellectual Property relating to Telematics Hardware Design, Firmware, manufacture and online Portal Backend Software Design; Hanhwa owns and controls certain Intellectual Property relating to In-Vehicle Head Unit Hardware Design, Firmware and owns a manufacturing and hardware testing infrastructure; Quantam wishes to have their telematics hardware design embedded in a screen and head unit reporting back to their Portal Back end software application in order to make telematics as a large scale commercial product available to the market; Hanhwa wishes to embed telematics in a screen and in their head unit reporting back to the Quantam Telematics portal in order to embed telematics in their head unit in order to make it available included with a telematics offering as a large scale commercial product available to the market; Quantam and Hanhwa wish to collaborate and look for new markets for telematics, screen hardware and head units; Neither Party is certain of the commercial success of offering the new product, and or the integrated product to the market as standalone hardware or as integrated hardware with telematics reporting back through to the Quantam Telematics Portal yet each believes that there is potential commercial success, to their mutual benefit, in doing so; and Neither Party wishes to relinquish ownership or control of their respective Intellectual Property nor, to acquire ownership in the Intellectual Property of the other, at this time. 386 Clause 2.1 provided: The parties will collaborate in a proof of concept to establish the market viability of offering the integrated product to the market as standalone hardware and as an integrated hardware with telematics reporting back through to the Quantam Telematics Portal on the following basis: 2.1.1 Each Party will retain full ownership and control of their respective Intellectual Property, protected under the Non-Disclosure Agreement (NDA) entered into between the Parties on 20 July 2015 and as attached; 2.1.2 Both Parties will do all that is necessary, including new hardware and firmware design to convert their individual product offerings into an integrated product design in order to offer the new and existing product to current clients and new clients introduced on a consumer scale basis and to any potential markets (the market); … 2.1.12 It is specifically recorded that nothing in the Agreement binds either party to the other exclusively. Either party is free to enter into similar or different agreements with any third party provided that rights accorded to a third party are not in conflict with this Agreement. 387 At the same time as the Heads of Agreement being entered into, the parties also entered into a reciprocal confidentiality and non-disclosure agreement, facilitating the disclosure to each other of a broad range of information of a "confidential and proprietary nature". 388 The use to which such information could be put was only for the purpose set out in clause 2 of Schedule A, being stipulated in the following terms: The parties will collaborate in a proof of concept to establish the market viability of; 2.1 Developing a new Fleet Management screen with integrated telematics design. 2.2 Offering the current head-unit products manufactured with a telematics capability. 2.3 Offer the current Quantam Fleet Management CPU product to Hirschman. 2.4 Develop and Hirschman specific hardware unit. 2.5 Offer Telematics communication and Portal Software. 2.6 Manufacture new designed and existing Quantam telematics and electronic products in the Hanhwa manufacturing facility. 2.7 Develop and manufacture the Quantam asset monitoring and tracking Tags in various forms and functionality. 2.8 Quantam distributing Hanhwa products and head units into markets as mutually agreed by both parties. 389 Allen Hartley did not give notice to Directed of this new business arrangements with the Hanhwa parties. Directed says that there was a risk of a breach of the JV Vehicle Shareholders Agreement. In my view that assertion was not made good. 390 One of the early collaborative projects between Quantam and Hanhwa Korea was to seek to supply a telematics solution to a German concern, Hirschmann, which was a Hanhwa customer. Discussions had commenced about this project by 23 January 2015. Further to a discussion between Allen Hartley and Lee, Dylan Hartley emailed Lee, which was copied to Allen Hartley and Davidson, a presentation entitled "Hirschmann collaboration: Hanhwa/Quantam Telematics – vehicle tracking and fleet management". Lee responded that he was "very impressed looks very professional". Dylan Hartley responded that "Allen or I will call you about coffee on Monday to confirm an arrangement". Directed says that the device depicted was the DIR6200. 391 One of the other projects involving Hanhwa Korea and some of the Gridtraq parties was the safety screen project. 392 The Gridtraq parties accept that in March 2015 they commenced working with Hanhwa Korea on a joint project known as the safety screen project. The safety screen was a screen with plastic surroundings. This unit was designed to have telematics and tyre pressure monitoring functionality. At all relevant times thereafter they were engaged in that project with Hanhwa Korea. I should say that since October 2016, the safety screen was designed to be capable of being mounted on the dashboard of vehicles. Further, between March 2016 and March 2018, the safety screen was referred to by reference to the model number "RA7000". The Gridtraq parties did not work with Meneses and/or Mills on the safety screen project. 393 The Gridtraq parties had helped determine the safety screen's specifications and functionality, as well as developing the protocol interface between the safety screen and its telematics unit (RA7000 telematics unit). This unit is variously referred to as the "CPU" by Gridtraq and the "Gridtraq Telematics Unit" or "Telematics Box" (by Oh). 394 On 28 April 2015, Hanhwa and Gridtraq made a joint presentation for the supply of a telematics unit to Hirschmann in Germany. Lee attended for Hanhwa accompanied by another Hanhwa representative, Paul Miller. Allen Hartley and Davidson attended for Gridtraq. They pitched to supply a safety screen together with a telematics unit and telematics services. At the meeting, they presented a safety screen and a basic telematics module. After the meeting, Miller asked Hartley by email to send a copy of the technical report and information on the comparison between the telematics module brought to the meeting, and the Hirschmann telematics concept. 395 Notwithstanding that the Directed/Gridtraq JV was on foot, Allen Hartley did not inform Siolis or Tselepis about the Hirschmann proposal or meeting. Directed says that the Hirschmann opportunity was something Siolis would have been interested to pursue through the JV Vehicle had he been made aware of it. 396 On 18 September 2015, Dylan Hartley caused the JV Vehicle to enter into an agreement with IAL for supply and support services in relation to telematics data. 397 The initial term of the agreement was for a period of 5 years. The agreement was signed by Dylan Hartley on behalf of the JV Vehicle and by Simon Humphries on behalf of IAL. 398 Under this agreement, the JV Vehicle agreed to provide what was known as "Supply and Support Services". Essentially this related to telematics data which was defined to mean all data and any other type of information created or collected concerning vehicles under arrangements between IAL and a customer. 399 Clauses 4.1 to 4.3 provided the following: The Parties agree that they jointly and severally own all data comprising the Telematics Data collected at first instance by Gridtraq. Either Party has the right to assign its right title and interest in the Telematics Data to the other only, unless both Parties have previously agreed in writing to assign a Party's rights to a third party. Subject to clause 4.5, Gridtraq will do all things necessary to ensure that: (a) IAL can discharge its obligations to a Customer in respect of a Vehicle under an SSA, without IAL being in breach of the SSA; (b) if asked by IAL, it assists IAL in the commissioning of all hardware, equipment, etc., that is installed in any Vehicle; (c) if asked by IAL, it assists IAL in the maintenance and upgrade of any hardware, equipment, etc., whether or not it is installed in any Vehicle; (d) it receives, stores, maintains and keeps safe all Telematics Data for the duration of the agreement and for an agreed period of 12 months following the termination of this agreement; (e) it provides all Telematics Data in whatever form, and as and when required by IAL; (f) where requested by IAL, to provided (stet) any reasonable assistance, input or information to allow IAL to maintain its websites and any form of on-line activity; (g) to assist IAL, as and when requested, in communicating or liaising with Customers in relation to Telematics Data; (h) it will not, without IAL's prior written consent utilise the Telematics Data in any way, that may allow it to be used, whether directly or indirectly by any third party, unless such use is compelled by law; (i) in collecting, retaining, disseminating and utilising Telematics Data in any form, the Parties agree to observe and comply with all laws in relation to privacy, to the extent that such laws may apply to this agreement; and (j) generally, to comply with any reasonable request by IAL in relation to the Telematics Data. 400 On 18 to 20 October 2015 Meneses travelled to Japan where he met with IAL and ICL representatives. He told them that there appeared to be opportunities for the sale of IAL products in the UK market. Meneses further shared the opportunity with YS Lee, forwarding relevant emails to him. 401 On 19 November 2015, Hanhwa Korea filed with IP Australia a design application in respect of the SuperDAVE which named Se Yoon Kim as the sole designer. This was registered on 15 December 2015. 402 Let me at this point say something more about the Gridtraq-Directed relationship around this time. 403 On 27 November 2015, Meneses wearing his Directed hat informed Dylan Hartley by email, copying in Davidson, Siolis, Allen Hartley and Tselepis, of his disappointment that Hartley had caused the JV Vehicle to enter into a direct agreement with IAL. 404 On 29 November 2015, Allen Hartley emailed Siolis and Tselepis claiming that they had breached their obligations under the JV Vehicle Shareholders Agreement. On 8 December 2015, solicitors' correspondence ensued, but no detailed particulars were provided of any of the Gridtraq parties' allegations. The Gridtraq parties switched off Directed's access to the telematics portal. 405 On 16 December 2015, Dylan Hartley was told by Tselepis to leave the premises. He left the Keilor premises soon after that conversation. 406 Let me move to another matter. The time when Hanhwa Korea commenced setting up its competing business in Australia with the assistance of Meneses and Mills can be traced back to at least 4 December 2015. 407 Sue Mills, the wife of Mills, was engaged through her business Sassy Marketing, to help with Hanhwa Korea's brand presence and advertising collateral. On 4 December 2015, Mills sent an email to Sue Mills under "Email to deal with Johnny": can you please only use jm@oesolutions.net.au to reply to Johnny. this will keep discussions off of directed's servers. He works best when he doesn't have to type anyway cause i reckon he is a bit meh with typing / grammar etc. his phone is [XXXX] – best cornering him on that or keep discussions vague if using emails 408 The subterfuge associated with the establishment of Hanhwa Aus, and Mills' open acknowledgement of the need to keep it secret from Directed was manifest from this early date. 409 On 15 January 2016, Allen Hartley and Davidson through a related entity commenced an oppression proceeding in the Supreme Court of Victoria against the JV Vehicle and the Siolis and Tselepis entities. 410 On 27 January 2016, the JV Vehicle was placed into voluntary administration. 411 On 29 March 2016, the Deed of Release and the DOCA concerning the JV Vehicle, as I have previously identified, were executed. The relationship between the JV Vehicle shareholders came to an end. Pursuant to these agreements, 100% control of the JV Vehicle went to the Siolis and Tselepis entities. Pursuant to the Deed of Release, Allen Hartley, Dylan Hartley and Davidson agreed to a 90-day restraint with respect to pursuing IAL, UD, and Hino as customers. 412 The parties to the DOCA included the Deed Administrators, Directed, Tselepis, Siolis, the Hartleys, Davidson and their respective entities. 413 Clause 14.3 provided: (a) The Deed Administrators and the parties to this Deed will use their best endeavours to facilitate the transfer of the items as set out in Schedules D, E and F herein to specified members of the DOE Group or the Hartley Group at Completion. (b) The Deed Administrators, the Hartley Group and the DOE Group must, by no later than 4 April 2016 agree to a list of documents that are required to be provided by the parties at Completion in order to facilitate the transfers set out in paragraph (a). (c) In the event that the Deed Administrators do not have the requisite legal title, control or possession of the items listed in Schedules D, E and F herein, the obligation to facilitate the transfer or assignment will rest with the other parties to this Deed and the Deed of Release. (d) The Deed Administrators will determine in their absolute discretion whether a transfer under paragraph (a), and all other terms of this Deed, have been satisfactorily effectuated. (e) Without limiting the power of the Deed Administrators referred to in paragraph (d) above, in the event that the Deed Administrators form the opinion that some of the assets in clause 14 or Annexures D, E and F are unable to be transferred at Completion, and the receiving party does not waive the requirement for the transfer of the asset prior to the Completion Date, the Deed Administrators may, in their absolute sole discretion: (i) terminate the Deed and cause the Company to be placed into liquidation; or (ii) convene a meeting of creditors to pass a resolution to either terminate this Deed or implement a Deed of Variation under clause 18.2 herein. 414 Relevantly, Schedule D provided: ITEM TRANSFEREE All STI manufactured OEM tracking units The Proposers and/or nominee Any OEM customer agreements available which are currently linked to STI manufactured units including: The Proposers and/or nominee • Gridtraq Isuzu service level agreement • OEM end user subscriber agreements • UD Customer Volvo activation forms All customer and account information currently available which is linked to STI manufactured units including: The Proposers and/or nominee • Customer and account information: client and vehicle details, vehicle history, usernames, email addresses • OEM public facing website artwork PST design files: a. http://isuzutelematics.com.au/ b. http://www.udtrucksfleetonline.com.au/ All customer SIM cards linked to STI manufactured units The Proposers and/or nominee All domain names as listed in Annexure E The Proposers and/or nominee All domain names as listed in Annexure F Hartley Group and/or nominee The "Gridtraq" business name and trade mark no. 1370062 "G Gridtraq Vehicle Tracking & Fleet Management" (device) Hartley Group and/or nominee All stock except for the STI manufactured OEM tracking units Hartley Group and/or nominee All customer agreements available which are not linked to STI manufactured units including: Hartley Group and/or nominee • Retail customer/subscriber agreements • Commercial customer/subscriber agreements • Transfer of the Audi Supply Agreement All customer and account information currently available which are not linked to STI manufactured units: Hartley Group and/or nominee • Customer and account information: client and vehicle details, vehicle history, usernames, email addresses All remaining uncollected debtors, except for any claims that the Company has released under this DOCA Hartley Group and/or nominee Optus SIM cards used for notification messaging Hartley Group and/or nominee All SIM cards not linked to STI manufactured units Hartley Group and/or nominee Google Map Licence currently in the name of Gridtraq Hartley Group and/or nominee Return of Lenovo Laptop, Docking station and Hard drive. Hartley Group and/or nominee Dylan Hartley personal effects: including rugby jersey, mobile phone number Dylan Hartley 415 The Deed of Release was entered into between the same parties as the DOCA, other than the Deed Administrators. 416 Clause 2 provided for releases and said: Subject to and conditional upon Completion occurring under the DOCA and this Deed on the Settlement Date and to receipt in full of all payments due at Completion: (a) Siolis Holdings, Tselepis Holdings and the DOE Group and their directors each release and forever discharge the Company, Hartley, Bandit, Davidson, Dylan Hartley, Webhouse Group, Webhouse Software and their directors, employees, servants, agents, contractors and related bodies corporate from and against any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had arising out of their agreement to form the Company and to operate its business, the conduct of the affairs of the Company or the services provided by the Company, including but not limited to the claims made in the Proceeding and in relation to the provision of goods and services to the Company by Webhouse Group and Webhouse Software. (b) The Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors each release and forever discharge Hartley, Bandit and Davidson from any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had in respect of the loans made by Siolis Holdings and Tselepis Holdings to the Company or from any further claim for compensation or return of monies they may have but for this Deed from the Company, Hartley, Dylan Hartley, Bandit or Davidson. (c) The Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors and each of them will not make any claim in respect of the assets to be transferred by the Company to Hartley, Bandit, Davidson or Dylan Hartley pursuant to the DOCA. (d) Hartley, Bandit, Davidson, Dylan Hartley, Webhouse Group and Webhouse Software and each of them release and forever discharge the Siolis Holdings, Tselepis Holdings, the DOE Group and the Company and their directors, employees, servants, agents, contractors and related bodies corporate from and against any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had arising out of their agreement to form the Company and to operate its business, the conduct of the affairs of the Company or the services provided by the Company including but not limited to the claims made in the Proceeding or the provision of goods and services to the Company by DOE Group and in any way related to the employment by or the services provided by Dylan Hartley to the Company. (e) Hartley, Bandit and Davidson and each of them release and forever discharge the Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors from any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had against for or in respect of their loans made by Hartley and Bandit to the Company or from any further claim for compensation or return of monies they may have but for this Deed from the Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors. (f) Hartley, Bandit and Davidson, Webhouse Group and Webhouse Software and each of them agree not to make any claims against any customers of the DOE Group or the Company in respect of any matter the subject of the conduct of the business of the Company prior to the execution of this Deed or their disputes the subject of this settlement, except in respect of the collection of the remaining unpaid book debts of the Company to be assigned to Hartley and Bandit pursuant to the terms of the DOCA, which may be pursued by Hartley and Bandit. (g) Following Completion Hartley, Bandit, Davidson, Dylan Hartley, Webhouse Group and Webhouse Software and their directors and each of them will not make any claim in respect of the assets to be transferred by the Company to Siolis Holdings, Tselepis Holdings or the DOE Group pursuant to the DOCA. (h) For the purpose of this clause 2, claim(s) includes (as the context permits) a claim, notice, demand, action, proceeding, litigation, investigation, judgment, award, damage, loss (including economic loss), cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a Party to this Deed or otherwise. 417 Clause 3 contained relevant restraints and provided: Subject to and conditional upon Completion occurring under the DOCA and this Deed on the Settlement Date and to receipt in full of all payments due at Completion: (a) and subject to sub-paragraph 3(b), Siolis Holdings, Tselepis Holdings, Hartley and Bandit release and discharge each other from any all restraints that may exist on their ability to pursue in the future any business the same as or similar to the Company's business and acknowledge and agree that any restraints that may presently exist will be of no further force or effect. (b) Notwithstanding sub-paragraph 3(b), Hartley, Bandit and Davidson agree not to, for a period of 90 days from the date of execution of this Deed, approach offering to provide or to provide vehicle tracking/telematics services or any other services the same as were provided by the Company to the following entities: (i) Isuzu Australia Limited and Isuzu dealers; (ii) Volvo Group Australia Pty Ltd (ACN 000 761 259) (including its business trading as UD Trucks) and dealers; and (iii) Hino Motor Sales Australia Pty Ltd (ACN 064 989 724) and dealers. (c) The Parties acknowledge and agree that: (i) the restraints in sub-paragraph 3(b) above are reasonable both in terms of scope and term and no greater than reasonably necessary to protect the respective legitimate business interests of the Parties; (ii) is reasonable in terms of the amounts paid and terms generally by way of settlement under the DOCA and this Deed; (iii) they will not in the future seek to assert that the restraint is unreasonable or for any reason unenforceable; and (iv) that should any Party seek to enforce the restraint, they acknowledge damages would not be an adequate remedy as opposed to an interlocutory injunction, and will not seek to submit to such effect in opposition to the granting of an injunction restraining them from acting contrary to the restraint. 418 I will return later to the question of how some of these clauses operate concerning the use of the JV Vehicle's confidential information and the case against the Gridtraq parties. 419 Let me return to what has been described as the RA7000 project. 420 In February 2016, further attempts were made to consummate a deal with Hirschmann. Some of the Gridtraq parties provided Hirschmann with an updated sample of a telematics unit. 421 On 29 February 2016, Lee emailed Allen Hartley what were described as "Meeting Minutes" which recorded the parties' objective of setting up a new joint company. But such a company was not incorporated. 422 On 2 March 2016 the results of a second sample test of the safety screen were recorded, which identified and described each function and its performance at that time. 423 On 29 March 2016, Oh emailed Allen Hartley, copied to Dylan Hartley and Davidson, in relation to the "GUI Design & Information of RA7000". She stated, "We currently have no idea about your telematics module, so could you please pass the connector specification/drawing and pin map of your module to us?". She also referred to the fact that the "Interface for UART will be RS232". 424 On 1 April 2016, a Skype meeting was held between Oh and Allen Hartley. Oh noted in a follow up email: RA7000 is being developed smoothly, but we would like to request further information of the connector for communication with a telematics module and 7" screen unit. …we currently have no information or data of your telematics module, so we are a bit hard up at the moment to design the wire for connection. Could you please provide a connector specification/drawing and pin map of your module? 425 Let me move to another matter. 426 From at least February 2016, Meneses used "leemen" and "hanhwa" email addresses in addition to his Directed email address. I agree with Directed that the different email addresses were an important internal mechanism used to differentiate which hat Meneses was wearing. 427 On 16 February 2016, Lee emailed Meneses at his optusnet address, attaching a Hino presentation for the new Hino project. Meneses responded, "Send it to my Directed email … Isuzu DMax was for me.". 428 The D-MAX opportunity originated from Siolis who had identified that D-MAX utility vehicles were increasingly popular with customers. He had asked Meneses to travel to Brisbane to pursue the opportunity with Isuzu D-MAX. Meneses told Siolis a few weeks later that he had done this without interest. But he pursued it through Hanhwa to the exclusion of Directed. 429 Let me continue with the chronology on work on the SuperDAVE. 430 In January 2016, the latest information from IAL was that the new model vehicle from Japan was delayed. They did not think it would be in the market by August 2016. This allowed Directed and the Hanhwa parties more time to improve it. 431 On 18 February 2016, an all-day meeting took place between Summers, Palone, Jaffe, Meneses and Lee. There was discussion about the DIR8000. New samples were to arrive the next week with shielding or grounding to protect any noise from trucks. Further, a new GUI was to arrive with the samples. Work also needed to be done on the digital rear camera. Further, a waterproof connector was required. And other issues needed to be resolved. 432 On 31 March 2016, Summers instructed Lee to begin work combining the audio and navigation manuals together for the DIR8000. 433 In April 2016, Summers and Meneses travelled to Korea to discuss the development of the DIR8000 and to review the Hanhwa design process. Summers sought to and did discuss a range of improvements, including to the user interface, the backside, inside and outside inputs, and other matters including the teardown report of the unit conducted by Andrea, one of Directed's engineers. Summers also sought to ensure that Hanhwa met certain international standards for quality certification and environmental management, that the choice of components of the DIR8000 were automotive grade, and that tests across a large range of issues had been performed satisfactorily. 434 On 26 April 2016, Jaffe, Meneses and Tselepis met with IAL representatives, being Humphries, Shanks and Michael McLean. IAL approved the overall hardware and basic design concept of the DIR8000. The parties agreed to work towards a mid-2017 launch. Item 5 in a draft agenda for the purpose stated: Item 5: "Super DAVE" Unit • Overall hardware/ basic design concept as previously shown is acceptable • Standard Master Feature List (mainly software) to be adjusted so new unit can meet IAL cost targets • Brainstorm better name than "Super DAVE" • SatNav and Telematics integration to be improved vs current DAVE • Apple CarPlay & Android Auto: If not at launch, from firmware upgrade in the future • Consider best launch timings ... • Introduction Strategy: All models standard at once OR staggered introduction OR initially package only with SatNav and Telematics as Option? • Pre-Launch Evaluation / durability trial as suggested in 2015? • Availability of DVR, forward (and driver?) facing camera from launch. 435 A matter that arose was that Directed needed a truck to test the DIR8000 steering wheel control. Tselepis and Siolis then told Meneses that Directed should buy a second-hand Isuzu truck to test the SuperDAVE. This led to a further exchange of emails. 436 Samples of the DIR8000 were sent by the Hanhwa parties to Directed on 16 March 2015, 27 March 2015, 1 June 2015, 29 October 2015, 4 March 2016, 17 March 2016 and 25 July 2016. The purpose of this was to enable Directed to test and provide feedback, so that the ultimate design and specification of the product could be agreed. 437 Park, the head of research and development for Hanhwa Korea, Han, the head of the mechanical team for Hanhwa Korea and Kim, the head of design for Hanhwa Korea all accepted that Hanhwa Korea manufactured working samples of the DIR8000 for the purpose of sending them to Directed. It was contemplated by the parties that Directed would install them in a vehicle, undertake testing and advise Hanhwa Korea of issues that arose and request changes. Where possible, it was envisaged that Hanhwa Korea would address those issues and make those changes. 438 Directed conducted testing on the working mock-up of the DIR8000 and identified issues in the open and close list. And modifications made in response to the issues raised by Directed contributed to the ultimate design of the DIR8000. Clearly, the evidence discloses that Directed tested samples of the SuperDAVE and its accessories and made requests for changes to those products. Further, those changes were made by Hanhwa Korea. 439 On 21 July 2016, Lee notified Meneses that a further DIR8000 working sample with the latest software was to be sent to Directed by express delivery that day. Now by this time, Hanhwa had approved and incurred tooling costs to manufacture the DIR8000. It is likely that the working sample sent in July 2016 was made with that tooling. Further, this notification also suggests that the working sample sent in July 2016 was made with the operating system and CPU that had been specified for the DIR8000 since at least November 2015. 440 Now Lee's evidence was that by mid-2016 he believed that Directed was not going to pursue the SuperDAVE opportunity because they had failed to pay the tooling cost. But I do not accept this. At this time Directed was purchasing more than AUD 30 million of product from Hanhwa per annum. Expected revenues for Hanhwa from the DIR8000 AV units excluding accessories to be sold to Directed were anticipated at almost USD 8 million per year. So, the tooling cost was inconsequential in the larger context of Hanhwa's overall long term and current and future relationship with Directed. 441 On 18 August 2016, Lee provided Meneses with a revised tooling quote of USD 225,300. This was an increase to an earlier quoted tooling cost. Clearly there were design changes to the DIR8000 in the intervening period, with the effect that costings as between Hanhwa Korea and Directed remained a work in progress. 442 Let me at this point say something as to the Hanhwa parties joining the Gridtraq parties at their premises. 443 In June 2016 Meneses and Lee decided to set up business premises for Hanhwa Korea in Melbourne in the same building as the Gridtraq parties. This was unknown to Directed at the time. 444 Allen Hartley's evidence was that it was in late June 2016 that discussions commenced with Lee to move into Brooklyn. He said that whilst he was showing Lee around, Lee told him that Hanhwa intended to supply a new model of radio directly to IAL, which he understood to be for the Isuzu "N" series. 445 On 28 June 2016, Lee asked Allen Hartley, "Hi Allen, Can Johnny see your office in this week? I spoke with my team that we want to go ahead with you guys. Very happy!!". Allen Hartley responded by email, "Hi Ryan, That will be fine. Thursday would be best. If you can please ask Johnny to text me a time that suits him and I will meet him at the office". 446 Allen Hartley says he was told by Lee at some stage between July and December 2016 that Meneses was now employed by Hanhwa. He recalled seeing Meneses at the Brooklyn premises from time to time. 447 In July 2016, Meneses with Lee, met with Gridtraq representatives including Allen Hartley during the negotiation of a lease to share premises with Gridtraq. On 12 July 2016, Dylan Hartley provided Lee with a document and plans for the proposed premises at Brooklyn. 448 On 13 July 2016, Lee forwarded Dylan Hartley's email to Meneses at his personal email address. 449 On 14 July 2016, Meneses sent an email from his optusnet address to Lee in relation to the proposed lease: This looks great on this plan! Let's see how it looks next week. I think you need to slow down just a bit, we need to get Isuzu Dmax or another customer before we do anything. Do [not] sign for a long term lease, we need to do this year by year. We don't want to be in a place where we get [too] big in 12 months. When is the new Dmax with Navi ready?? The quicker we do this the quicker we can start our own. One thing you need to understand is that Directed still needs to keep ordering ALL of our current products until we start to move them after one year.. 450 This email reveals Lee's and Meneses' plan as at July 2016 to appropriate Directed's business, and of the need for secrecy until the last moment. The reference to "The quicker we do this the quicker we can start our own" is telling. And by continuing to order "ALL of our current products", Directed would continue developing and marketing the products to customers, whilst unaware of Meneses' and Lee's strategy. And it would be paying ongoing development costs of the DIR8000 and the salaries, travel and other expenses of Meneses, Mills, Summers and Palone, all of whom were engaged in activities to further Hanhwa's business. 451 On 15 July 2016, Dylan Hartley in an email to Lee referred to the prospect of another interested tenant but stated that they would prefer to have them downstairs so they could work together and help Hanhwa. 452 Now the Brooklyn premises had common areas including a shared entrance, foyer, reception area, boardroom, printer and warehouse. Meneses was given his own office at the Brooklyn premises. Directed says that Meneses spent a lot of time there. And Directed says that Allen and Dylan Hartley are likely to have encountered and spoken with Meneses at the Brooklyn premises on a regular basis from June 2016 onwards. 453 According to Directed, the Gridtraq parties should have been put on enquiry as to Meneses' presence at Brooklyn and his assistance and involvement with the Hanhwa parties to supply a new AV unit to IAL, whilst at the same being employed by Directed. It says that they ought to have known that he could not assist Hanhwa in any commercial activities that might conflict with, or compete with, Directed, and was in no position to work for both companies. This included any cooperative endeavour between Hanhwa and Gridtraq. I will return to these submissions later, but I should note that Allen Hartley did not accept Directed's proposition of a conflict of interest. 454 When Directed's version of Meneses' apparent conflict of interest was put to Dylan Hartley, he said: GOLVAN QC: It's correct, Mr Hartley, that you knew that Meneses was going to continue working for both Hanwha and Directed and you did nothing to address that arrangement with Hanwha by way of any complaint or issue? DYLAN HARTLEY: I don't – I don't recall. And, again, our feelings were quite well known. There was – there hasn't been, you know – I'm struggling to find the words, but in terms of a normal relationship, yes, Johnny is around and, you know, the interaction of such, it happens. But, you know, in terms of a conflict or things like that I don't really care. 455 As for the continuing relationship between Hanhwa and Directed, Dylan Hartley said when cross-examined about it: …the knowledge of what Hanhwa and Directed want to do or whether they are competing with each other has got no bearing on me… whether they sold units that were in competition with each other, it has got nothing to do with me. 456 Directed says that this answer should not be believed. It says that these events were a few months after the Gridtraq parties had been in litigation with Directed. They were not an arms-length third party. The Gridtraq parties were working closely with Hanwha. It is said that I should infer that the Gridtraq parties were interested in the relationship between Hanhwa and Directed, but did nothing to verify that Hanhwa Korea or Meneses were free to pursue opportunities with them. But for my part I am not prepared not to accept this evidence. 457 Let me at this point say something concerning the purchase by Meneses of an Isuzu truck for Hanhwa Aus. 458 On 21 July 2016, Meneses entered into a contract for the purchase of an Isuzu truck for Hanhwa Korea after informing Lee, "See emails below. I think this would be great for us to test... I need to let IAL [know] ASAP". The "emails below" were between Meneses and Siolis about such a truck purchase. Meneses informed Lee that he obtained a discount, and to "Please let me know when you arrange the payment". Hanhwa Korea paid for the truck. Lee's evidence was that Meneses bought the truck as a personal favour to him, because Hanhwa Aus could not yet open up a bank account in Australia. 459 It was relayed to Allen Hartley via Dylan Hartley that Lee said Hanhwa was going to buy a truck and keep it at the Brooklyn premises. He said that the Gridtraq parties were happy with this arrangement and they had used it to test Quantam's telematics units. 460 From August to November 2016, Summers engaged in the road testing of an Isuzu radio unit using that Isuzu truck. Feedback was provided. Clearly this was testing of the DIR8000 later renamed the HAU8000. An Isuzu truck was necessary to ensure that the SuperDAVE or equivalent, with any associated telematics, would work in the real world. Data from a specific Isuzu vehicle that had been operated in a full range of conditions was needed to verify that this could be achieved. 461 Meneses also caused Palone to engage in extensive testing from December 2016, together with Shin of Hanhwa Korea, of the DIR8000/HAU8000 using this vehicle. 462 It is convenient at this point to say something concerning Meneses' and Mills' dual employment at Hanhwa Aus. 463 From approximately July 2016, Sue Mills assisted Lee and Hanhwa Aus with marketing services in anticipation of Hanhwa Aus' registration and commencement of operations. It seems that she commenced her engagement from at least 4 December 2015 as I have indicated earlier. 464 The work included all things necessary to commence a start-up such as a corporate logo, business cards, social media pages, promotional videos, marketing materials, and corporate uniforms. Mills and Meneses sent and received emails for the same purpose, which included the period when they were employees of Directed. 465 On 8 July 2016, Lee asked Meneses via his personal email address whether he would prefer an HSBC or Citibank credit card. In response, Meneses indicated a preference for Citibank. 466 On 2 August 2016, Lee informed Meneses by email, which was copied to Mills, that he had created a "Leemen" email address for Mills. Lee's email was sent to Meneses' Leemen address. Mills from his personal email address informed Meneses at his Leemen email address: "This is dangerous setting up this email on my directed phone. I need a personal phone or a leemen phone". It would seem that the perceived danger was in detection by Directed. 467 Mills' request for a separate phone was met. On 4 August 2016, Mills informed Lee, "Hi Ryan, this is my (craigs) new (non Directed) mobile number. I am having trouble setting up the email. Can you please check details again? I have details: cm@leemen.net / password: craigmills33 / pop server: mail.leemen.net regards craig mills". Lee responded a short time later, "Hi Craig. Can you please advise your personal email then I will let you know how to set up". As Directed rightly contended, that Lee requested Mills' personal email address, and did not simply email him at Directed, evidences Lee's knowledge of the need to keep the conduct secret from Directed. 468 Clearly, Meneses and Mills were intimately involved in the establishment of Hanhwa Aus whilst still employed at Directed. 469 On 11 August 2016, Meneses via his Leemen email address instructed Mills to provide him by Monday morning with an "up to date cost for our starting set up". He added, "Will be discussing this with Ryan before he leaves". This email was copied to Lee. 470 On 15 August 2016, Meneses via his Directed email address obtained from Floudas Directed's Certificate of Insurance. Meneses via his Leemen email address then forwarded the email exchange with Floudas to Lee. Lee said that he asked Meneses to obtain Directed's insurance details for use by Hanhwa Aus as he had no experience in the area. The different email addresses, the fact that Floudas sent the Certificate to Meneses at his Directed email address, and the fact that the Certificate itself was marked to the attention of "Kon Floudas" of "Directed Electronics OE Pty Ltd" were visible to Lee. 471 I would also note that on 23 August 2016, Lee sent to Meneses at his Leemen email address an email concerning an "Isuzu UTE [presentation]" saying "What you think [stet]". Meneses from his Leemen email address sent it to Mills at his Leemen email address saying "Call me". This appeared to concern the D-MAX. 472 Let me say something about the HAU8100 (D-MAX) and also the DIR8000 which became the HAU8000. 473 In February 2016, the opportunity concerning the HAU8100 (D-MAX) was being furthered. It was to be Hanhwa Aus' first opportunity. Lee did not consider this conduct wrongful because he expected Meneses imminently to be coming to Directed. Further, he did not consider it wrongful because so far as he was aware, Directed had never supplied to IAL the D-MAX. Now whether Directed ever supplied to IAL the D-MAX is not the point. It was a commercial opportunity identified by Directed. Meneses during the period of his employment by Directed brought it to Hanhwa Korea. Further, that continuing work on the D-MAX project was for the benefit of Hanhwa Aus is clear from the project name with an "HAU" prefix. 474 Lee conceded that Hanhwa were ready to present the D-MAX product to Isuzu D-MAX by August 2016. Meneses was to make the approach. This was when Hanhwa Korea prepared a presentation to that effect. Lee was listed as the contact for "Head office" (Korea); Meneses for "Australia office" (Brooklyn; Leemen email address). A draft had been provided by Meneses to Mills, both using their Leemen email addresses, for comment. 475 Hanhwa's plan was for Hanhwa Aus to purchase and send to Korea an Isuzu D-MAX pick-up truck, which was due to arrive in February to March 2017. There were a few issues to work out. Development of the new product was underway at the end of 2016. Surprisingly, Lee brought the unit to Directed for testing, even though it was for the admitted benefit of Hanhwa Aus. Testing of the unit by Directed occurred. Lee confirmed that Meneses presented the unit at a dealer showroom in Brisbane in early 2017. 476 On 26 August 2016, a meeting was held in Hanhwa Korea's Head Office which concerned changes to the DIR8000, which became the HAU8000, and the HAU8100 (D-MAX) models. 477 On 2 September 2016, Oh emailed the Hanhwa Korea team announcing a "New Part Number for DIR8000". This was copied inter-alia to YS Lee and Lee. Oh confirmed that she discussed the email with Lee before it was sent. The email said in part: Products previously shipped to Australia included "DIR" in their Part No. because they were delivered to the end customer through the company Directed. But as the new projects will not involve an intermediary and delivered directly ISUZU, the part number of the existing DIR8000 (NEW ISUZU/SUPER DAVE) has been changed. … 1. DIR8000 model – new part number: HAU8000 [D-MAX part number: HAU8100] 2. Confirmation and reply request: Please confirm the changes to rear connector and pin placements of HAU8000 (old DIR8000) etc. discussed during the last meeting on Aug 26 and reply with M/C amendments and possible implementation dates. 478 Oh accepted that at this point in time Hanhwa decided not to design a new unit from the beginning, but to change the model number to HAU8000 and then supply that unit to IAL directly. 479 Now Lee claimed that Directed's failure to pay for tooling justified his decision to divert the SuperDAVE to his own benefit. But the true position is that in mid-2016, IAL had not yet committed to proceed with the DIR8000 at that time. And there was also no obligation on Directed to pay for the tooling at that point in the design process. 480 According to Directed, the reality is that in August 2016, Hanhwa Korea decided to rename its new AV unit the HAU8000 from the DIR8000, in recognition of its decision to distribute the new unit directly to IAL. Lee decided to keep secret from Directed the fact that the Hanhwa parties were developing the HAU8000 to supply to IAL directly. And from the nature of the proposed field tests, it was apparent that Hanhwa's software, hardware and circuit design teams were moving forward towards the production of working samples. 481 Let me deal with some other events in September and October 2016. 482 On 10 September 2016, Meneses as "OE Director" and Lee as "Managing Director" of Hanhwa Aus provided Shin with an offer of full time employment as Service and Development General Manager at Hanhwa Aus. 483 On 21 September 2016, Hanhwa Aus was incorporated, which Meneses attended to. He was also provided with a laptop computer. On 30 September 2016, Hanhwa Aus reimbursed Meneses for "Company Setup", "H Laptop Meneses" and "2014 Isuzu Insuran[ce]". On 26 September 2016, Meneses asked Lee to add registration for the Isuzu truck in Meneses' personal name to the list. 484 Further, during September 2016, Lee, Meneses, Mills and Sue Mills collaborated on the branding for Hanhwa Aus to be applied to business cards, letterhead, and a social media banner. 485 On 14 October 2016, Meneses from his Directed email address sent to Lee the email exchanges with ICL representatives that took place in 2015. There was no need for the business purposes of Directed for Meneses to share these emails or the information in them with Lee or Hanhwa Korea at that time. 486 On 16 October 2016, Meneses from his Leemen address emailed Lee at his Leemen address: "Hi, As you know I am in China!!! Thinking about new features that we spoke about two weeks ago!! Shit that long!! Anyway I am in my room doing funny things??? For new Isuzu unit HWA8000…". Their exchange concerned the HAU8000. Clearly, Meneses was actively engaged with Lee on the development of the HAU8000 and its proposed features at that time. The use of the Leemen addresses is telling albeit that Meneses continued to use the title "OE Director". 487 On 17 October 2016, Meneses emailed Lee with the subject "Com" stating, "Hi, As per last conversation I would like to clear up outstanding com details before the end of this year". Meneses was chasing up outstanding commissions. 488 Now Lee's enthusiasm for their new competitive venture and his recklessness in failing to guard against its establishment becoming known by Directed, tried Meneses' patience. On 18 October 2016, there was the following exchange in essence via email: Meneses: Ryan, You are making my life very difficult! Please slow down!!! I have to explain fucking why!! STOP sending any emails with those contact details. Lee: Sorry it was my mistake. Thank you and this is why many people is saying we are the A team. 489 Lee said that he had sent an email to Meneses and another Directed employee using his Hanhwa Aus signature by mistake. Lee said, "Yes. He didn't want to – them to know first until he said something – he say something to Steve and Anthony". 490 Let me return to the chronology concerning the diversion of the DIR8000. 491 On 11 November 2016, Hanhwa had established a new team to exploit the HAU8000 because Directed was no longer involved. The aim was to do this quickly, ready to show a working sample to IAL in December 2016 or January 2017. 492 A Hanhwa work report for the period 14 November – 18 November 2016 was headed "Directed Electronics OE Proprietary Australia". Lee accepted this referred to Hanhwa's products for Directed. However, one such item concerned the "HAU8000" project. Field testing of the unit and all its accessories was to be conducted at Directed's premises. That the DIR8000 was the basis for the HAU8000 is apparent from a request for approval from Oh to Lee and other Hanhwa team members: "Hello, In regard to the HAU8000 project, I am requesting your approval for functional additions and changes to GUI". 493 On 14 November 2016, Lee reported to a Hanhwa Korea team member, Mr Kim: "I have spoken to ISUZU over the phone. I have been reported that testing in January is not feasible. Please proceed as per the existing schedule, but considering our situation, please only consider investing in the Mock up samples". This evidence is inconsistent with the Hanhwa parties' oral evidence of the development of the HAU8000 from scratch and dealings with IAL. To try to overcome this, Lee said, "That was a lie to my people". He said he had not spoken to IAL at all. When asked whether he often lied to his people, Lee said, "Not often. When I push my people, I need more powerful email. I need more motivation to work with R&D people.". When asked whether it was okay to lie to his people, Lee responded, "Well, if I can get good outcome from them, yes". 494 On 15 November 2016, Humphries of IAL emailed Meneses complaining that the mid-2017 start date for the SuperDAVE was in jeopardy. Humphries stated, "We are now several months past our preferred decision point for the in-vehicle hardware from Directed OE from mid-2017". He sought a detailed proposal from Directed that addressed a list of specific requirements. These included: 1. "Super DAVE" unit latest specifications and features. 2. Satellite navigation proposal including new features… 3. Standard fitment of Telematics hardware, with up to 6 months of included subscription. 4. Cost of ongoing subscription to Telematics after the first six months, with an aim for the subscriptions to subsidise the initial hardware cost. 5. Accessories / extra cost options available for the above from launch, and their costs. 6. Cost schedule for all of the above. If some are volume related, please advise the break points for reduced prices. 495 Humphries further disclosed that he was faced with time pressure. The launch timing remained July 2017. This email makes clear that as between Directed and IAL, the DIR8000 project remained alive. This email was forwarded by Meneses to Lee. Lee could have been under no illusion that Directed was going ahead with the project. 496 Further, on 15 November 2016, Oh informed Hanhwa staff, "Thanks for your active cooperation for HAU8000 field testing and sample preparation". In her email, she wanted an update on the material cost calculation, expecting that the price will go down. Lee accepted that Oh had sought the material cost for the DIR8000 now to be updated for the HAU8000. This is a further indication that the HAU8000 was not designed from scratch. 497 On 18 November 2016 Meneses and Shanks of IAL had a conversation about the SuperDAVE. It was during this call that Shanks informed Meneses that Hanhwa Aus could supply the HAU8000 directly to IAL. 498 On the same day, Lee had the following iOS iMessage/SMS/MMS exchange with Oh: Lee: We won ISUZU… Oh: Are you talking about 8000, Mr EVP? Or DEMAX???? Lee: 8000 for 1300 dollars Oh: Mr EVP!!!!!!!!!!!!!! Units only, right?? Accessories are all separate???????????? Lee: Of course. Don't tell anyone. [About four hours later] Oh: Dear Mr EVP, Would it be okay to open our ISUZU protocol information to Dylan?? 499 Oh also sent a picture of the rendering, which was of an image of the DIR8000. The reference to Mr EVP (executive vice president) is to Lee. In relation to the case against the Gridtraq parties I note that Oh refers to sharing in essence the Directed Specification concerning the radio communication protocol, which I will define and return to later, with Dylan Hartley. Lee confirmed that the reference in the message to "Would it be okay to open our ISUZU protocol information to Dylan??" meant "Directed Specification", and that he authorised her to provide a version of the Directed Specification to Dylan Hartley. 500 Lee's evidence is that he did not tell Oh the truth: LEE: That was my second affidavit… I need to make big motivation, because we are very tired of the DIR8000 … 2014, which is no purchase order from them. Then we have announced to all people in Hanhwa Korea that we set up the HAU8000 – sorry – the Hanhwa Aus to supply HAU8000 to Isuzu. But we didn't, so – but I had to say something to keep the motivation even – Irene is the main person to talk with myself and Korean engineering people. That's why I said 1300. It was my wish price. WISE QC: So this is another lie, is it, that you told Irene Oh at this time. Am I correct? A: We can say lie, but to me there was – I had to say something to my people, otherwise they're going to just … Q: Not the truth though, is it? A: Not true. Q: That's your evidence, isn't it? A: That's correct. It's not true. 501 But I reject Lee's evidence that his "We won Isuzu – 8000 for $1300" text was an intentionally false statement. Further, it is noted that the price in the text message "1300 dollars" is almost the sum at which Meneses advised Lee on 27 August 2015 that he was seeking to pitch the SuperDAVE to IAL. Further, it was the same figure ultimately presented by Hanhwa Aus at the meeting on 30 June 2017 to IAL for the supply of its HAU8000, to be provided in lieu of the DIR8000 or SuperDAVE. I will discuss that meeting later. 502 On 18 November 2016, Hanhwa Aus prepared a quote to IAL for the "8" TFT LCD Multimedia AVN unit (Super Dave)" for USD 660 (plus external options). 503 On that same day, Hanhwa Korea also prepared and sent a quote to Directed for "8" TFT LCD Multimedia AVN Unit (Super Dave)" for USD 713 with the same external options, each of which was at a higher price than those in the direct IAL quote and USD 53 higher than Hanhwa quoted to Directed three months' earlier. 504 Directed says that the latter quote was a facade, to suggest that Hanhwa Korea was pursuing the project with Directed in good faith, when the opposite was true. It was created so as to ensure that Hanhwa Aus would have the contract to supply the SuperDAVE to IAL. 505 Also on that same day, the Hanhwa parties also produced a separate MFL for the DIR8000 and the HAU8000 which were identical even to the extent of reproducing the misprints in both documents. So, for example, one had repeated "Duoble" and "Pannel" mis-spellings. 506 In late November 2016, Lee informed Hanhwa Korea employees by email, including Shin, that a field test was to be conducted in December 2016. Production was scheduled for April, with shipping in May and vehicle installation in July. Annual quantity was expected to be 11,000 – 12,000 sets "and it's a three-year contract". All testing was to be done in outer Melbourne areas. He added, "we will use a truck (N series) owned by Hanhwa Australia". "Marcus" was to drive the truck. A "2ch DVR" and "Wireless charger" were to be submitted to IAL. A digital camera would be fitted onto a truck and presented in the "Dealer working presentation". As for the HAU8000: "This is the last sample so please carefully prepare this…I will submit this sample to [IAL] for approval.". Shin accepted that the reference to "Marcus" was to Marcus Palone, who at that time was an employee of Directed. Palone said he did not recall. He did not accept that he was doing work for Hanhwa whilst employed by Directed. 507 As Directed points out, this is further evidence that the HAU8000 was not designed from scratch. Now to overcome the effect of this being evidence of an advanced working sample unit in November 2016, Lee said, "This is the same lie, which is very incorrect to my staff". 508 Shin accepted that this email referred to a field test of the HAU8000. He confirmed that he did testing work for Hanhwa Aus to supply the HAU8000 to IAL. Lee also confirmed that a field test took place in Australia from 12 – 17 December 2016, involving a truck, conducted by Shin and engineers from Korea. And even though Palone worked at Directed, Lee decided that Palone would drive the truck, "Yes. I ask Palone to check like a friend to help" and "after Directed work hours". 509 Lee accepted that the field test was on the HAU8000 which was for the benefit of Hanhwa not Directed. A second field test was scheduled in the fourth week of January 2017. 510 Shin also confirmed that there were three steps involved in the process for the development of the HAU8000 being a working sample, a development model, which is tested, and what was described as "LPP". After this, there is the main production stage. One can only move to the last stage "once we test everything and made changes and done any – all the updates if necessary and then ensure there's absolutely no problem". He added, "as you can see, moving from the very first step to the very last step, it takes a long time". In this context, the reference to "last sample" in Lee's email and to field tests suggests that this sample of the HAU8000 was an advanced one. 511 On 21 November 2016, Meneses wearing his Directed hat provided Shanks with the DIR8000 MFL. 512 On 29 November 2016, Mills provided Lee and Meneses with a detailed "Hanhwa AU To do list" encompassing matters such as the website, the main number for the business, fax, internet and the like. 513 On 5 December 2016, the Hanhwa parties produced a document setting out Hanhwa Korea's expected revenue for 2017 concerning the following topics: (a) HAU8000 – anticipated sales were 500 units per month April to August 2017, increasing to 1,000 to 1,200 per month; (b) accessories; and (c) HAU8100 – to be provided to D-MAX. 514 Hanhwa Korea's business plan dated 15 December 2016 for 2017 also records its business and plans at that time. Other personnel referred to on the organisation chart were Summers, Dane and Palone. The organisation chart also identified Australian office personnel which included Meneses and Mills. Both were still employed by Directed at this time. 515 The Australian implementation plan recorded that sales, logistics and after sales would all be performed directly in Australia. They would start "self-supply" from "HAU-8000 (ISUZU), HAU-8100 (D-MAX) model". They would "continue to work with Directed on the current AVN products until discontinuation". This makes apparent the plan expressed between Meneses and Lee in July 2016. 516 Further, products to be introduced in 2017 models under development included: HAU-8000 (Isuzu Truck); HAU-8100 (Isuzu D-MAX); RA7000 (after market) and accessories. 517 The business plan further disclosed that Directed then represented 62% of Hanhwa Korea's sales revenue and that this represented 10% growth over the 2015 year, and that sales were continuing to increase. 518 By the end of November 2016, Hanhwa Korea intended to send a working sample of the relevant RA7000 unit to the Australian office on 31 December 2016. However, in relation to telematics, requests had been made of Quantam for "Protocol spec sheet update material" without reply. 519 Likewise, a module sample for telematics review had also been requested. Hanhwa's latest protocol data dated to April 2016 and there was no module to review. In an internal report from Oh to Hanhwa team members dated 30 November 2016 it was said: "Thus, interlocking test with Telematics is difficult". Oh confirmed that it was proving difficult for Hanhwa to do any integration with the telematics unit. Oh said, "Our engineers – we just develop RA7000 screen unit and we had no idea about the telematics function so we ask them to – to share – to send us the sample and the protocol, the specification to check the communication things. So I've asked them to share that but we didn't get. And the samples for reviewing that". Oh further confirmed that she and the software engineers knew that the communication protocol used by the RA7000 telematics module was RS232. 520 Let me deal with another matter. 521 In late 2016 Lee told Allen Hartley of the following matters. 522 First, he told him that Hanhwa was splitting away from Directed and they were counting on the Gridtraq parties to deliver the telematics component. 523 Second, he told him that Hanhwa wanted to demonstrate telematics using Gridtraq's telematics unit connected to their "new radio", that the radio was being presented to IAL in January 2017, launching with the N Series Model, and that full production and supply of this new radio was to be May 2017. Lee told him that for their demonstration in January to IAL, they required the CPU connected to the radio to perform the following: messaging, driver ID and telematics including CAN Bus data. He told him that they wanted the telematics component, added telematics services and support of the program to be priced and supplied by Gridtraq. 524 Third, he told him that he wanted the Gridtraq parties to have something ready to show IAL by January 2017. 525 Allen Hartley told Lee that it would be necessary to first establish connectivity of the CPU to the HAU8000 and that Gridtraq would need to develop a screen protocol to enable the CPU to communicate with the HAU8000. Davidson recalled a conversation with Allen Hartley to this effect. 526 Lee accepted that he told Allen Hartley that the "new radio" meant the HAU8000. He also accepted that Hartley told him that Gridtraq needed to establish connectivity between the HAU8000 and the telematics unit and that they needed to develop a screen protocol to enable communication between the telematics unit and the HAU8000. 527 On 8 December 2016, Allen Hartley sent an email to his business partners, Thibaud, David Keightley and Davidson. It stated, "Hugh, whilst you've been busy with 3G upgrade Dylan and I have had several meetings with Ryan to keep the relationship moving forward. They have set up their office and distribution in our building and are totally committed to working with us and to integrating into our products". Then it was said: We are now at the point where as Quantam we need as Directors to please discuss and evaluate the opportunity and decide a way forward. Hugh, we also need you to please meet with Ryan as he needs reassurance of our commitment and our ability to deliver. Dave, we need you to head up the integration and connectivity requirements of the first phase of the project, and to also co-ordinate a meeting in Korea at the point that everyone is comfortable regarding delivery and we are ready to develop a telematics board to go into their head unit. Please can we discuss this at today's meeting as we really need to go back to Ryan with our feedback. Hanhwa is currently splitting away from Directed Electronics and they are counting on us being able to deliver the telematics component, and they want Quantam to partner with them going forward in the various markets that they are active in. 528 The reference to "their head unit" appears to have been a reference to the HAU8000. 529 Three propositions were put in cross-examination to Allen Hartley: first, that he had seen that Meneses was involved in assisting Hanhwa to set up its business in Australia; second, that he was told by Lee that Meneses was still working for Directed two to three days per week; third, that he was told by Lee that Hanhwa was seeking to supply AV units and accessories to IAL in Australia. In light of this, he was asked why he asked no questions of Meneses or Lee as to whether Directed was aware of their conduct. He responded, "It was none of my business". Directed says that such indifference was reckless. I will return to this later. 530 Further, in December 2016, the Gridtraq parties prepared a document for Quantam, called "Quantam Telematics Opportunity". It set out what was required to help Hanhwa Aus pursue the "Super Dave" with IAL: HANHWA want to demonstrate Telematics using the CPU connected to their New Radio. The Radio is being presented to Isuzu in January – launching with the N Series Model. They expect the volumes to be 12 000 to 15 000 units per year across the range. Full production and supply of this new radio "Super Dave" is to begin May 2017. For their demonstration in January to Isuzu they require the CPU connected to the Radio to perform the following: Messaging Driver ID Telematics including CAN Data They want the telematics component, added telematics services and support of the program to be priced and supplied by Gridtraq. 531 The reference to "CPU" is to Gridtraq's telematics unit and the "New Radio" to the HAU8000. Allen Hartley's evidence, which I accept, is that this proposal was rejected by the Board. 532 Let me return to the SuperDAVE. Directed continued to work on the SuperDAVE. By 8 December 2016, Directed had met IAL's requirements. IAL approved the design and specifications of Directed's DIR8000 and its accessories, the MFL, GUI, renderings, cost breakdown sheets and the working samples previously provided and demonstrated to IAL. But the price had not yet been agreed. 533 On 8 December 2016, Meneses provided to Shanks the Directed quotations for the DIR8000 and its accessories. 534 Let me deal with the solicitation and appropriation of staff. 535 On 15 December 2016, Mills sent to his personal email address Directed's recruitment request form, recruitment process map, and a letter of offer. 536 On 31 January 2017, Mills provided Meneses with information including Directed's pricing for navigation software. Further, Meneses informed Lee by email that, "I need the company [letter head] to start the letters of offer to new staff". 537 On 9 February 2017, Meneses as "OE Director" and Lee as "Managing Director" provided Mills with an offer of full time employment as Production Manager at Hanhwa Aus. 538 Further, Meneses forwarded from his Hanhwa address to his personal address a final version of an offer of full time employment to Palone as Development Supervisor at Hanhwa Aus. Lee admitted that Meneses was actively involved in drafting the documents to make a letter of offer to Palone, in co-operation with Lee, at the time Lee knew that Palone was still performing work for Directed. Lee also admitted that Meneses at an earlier point had forwarded to him in soft copy one of Directed's standard employment contracts. 539 In late February and early March 2017, before Mills departed Directed to join Hanhwa Aus, Mills and Meneses engaged in wholesale downloads of Directed's confidential information and copyright works, including electronic files from Directed's server onto a hard drive, being the red hard drive. 540 On 23 February 2017, Sue Mills emailed Dylan Hartley and Lee the final logos for Hanhwa Aus. 541 On 27 February 2017, Sue Mills suggested to Lee a meeting to discuss the next steps and filming, presumably for marketing purposes. Lee responded that the meeting had to include "JM" (Meneses), "MP" (Palone) and "CM" (Mills). Mills responded, "Next Wednesday is an awkward day for me. It is [my] last day at Directed. I will be training people and they will be watching what I do". 542 On 2 March 2017, Lee shared with Sue Mills his plans to go with Meneses to Japan on 13 March 2017 for a fortnight. He wanted business cards finished for the trip. 543 Mills' last day at Directed was on 8 March 2017. 544 During this period, Meneses asked Vardon for a copy of Directed's software it had developed for obtaining CAN Bus data using its CAN tool, which Vardon provided. 545 Let me also note that on 3 February 2017, Oh informed Dylan Hartley by email that Hanhwa was preparing the new RA7000 sample and planned to send it to Quantam's office. For the purpose of the new sample and communication processing, Oh asked Dylan Hartley for the "setting value of band rate" (speed of data transmission) that is "sent from the telematics module to RA7000 screen". When responding, Dylan Hartley referred to "firmware we are expecting on the new Safety Screen and the new Isuzu Head Unit". He asked Oh "to confirm that the new firmware that we are expecting with the new Safety Screen that you will send us is the same for the new Isuzu Head Unit". Oh confirmed that the "New Isuzu Head Unit" meant the HAU8000. Oh understood that Dylan Hartley was wanting to ensure that the updated firmware for the safety screen would be the same as the firmware for the HAU8000. 546 Let me say something about the Mercedes Sprinter opportunity and the DIR6160. 547 By 25 January 2017, Hanhwa had resolved to pursue an updated DIR6160 for itself. So much is clear from internal Hanhwa Korea meeting minutes of that date concerning progress of the AV project(s) and accessories for Australia. In relation to the DIR6160, a change of concept and buyer was recorded: 1) Currently, the buyer of DIR6160 is Directed, and TP012 (TRIM PLATE for DIR-6160) is supplied separately. 2) Later, it will change and start directly supply to Mercedes Benz Truck (Aus.). 3) When a supply method and buyer change, DIR-6160 will have a face lift. … 4) As it will proceed gradually, preceded by review on CAN communication, the current DIR6160 + TP012 model will continue to be supplied to Directed until further notice. 548 The concept being considered, as indicated by the minutes, was an integrated product. Rather than having a separate telematics unit or "CANBOX", a direct communication with a CAN of the truck would be made. 549 On 2 February 2017, John Madour of Mercedes telephoned Dane of Directed about a new opportunity. He followed it up with an email: We require a standalone navigation unit with Australian maps that is to be externally mounted on the dashboard (as pictured in the attached) to replace the OEM Bosch unit which does not carry Australian Map data. 550 Dane forwarded it to Meneses, "One for you… John Madour from Merc is looking for a standalone NAV unit!". 551 On 3 February 2017 at 1.07 pm, Meneses forwarded the entire email chain to Lee. That same day, Oh announced to the Hanhwa Korea group: Hello, Today, Hanhwa Australia Branch have received new suggestions from Mercedes Benz Company. The customer wants a Navigation Screen Product installed on a vehicle, as a stand-alone type product. Instead of developing a completely new product, we are considering to add that function to the RA7000 product we are planning to propose to the After Markets of Australia/South Africa, etc. 552 The solution proposed by the Hanhwa parties was the RA7000. 553 Later that day, Oh sent a further groupwide email at Lee's request. This email clarified that the DIR6160, which was the product to be sold directly by Hanhwa Aus to Mercedes, was to be installed into Mercedes trucks whereas the new opportunity concerned Mercedes vans. Oh disclosed two concepts being considered by Hanhwa Aus. For vans, the concept was the standalone RA7000 product referred to in her previous email. For trucks, the concept was the development of a new AV unit "replacing DIR6160 delivered via Directed currently". This latter option would have "[d]irect CAN communication with vehicles planned (Separate CAN BOX of Directed not applied)". The "CAN BOX of Directed" referred to the telematics unit it supplied to Mercedes. The GUI would be changed. The size would be the same with a scanned trim plate "based on ORION products", which was another product developed by Hanhwa for supply by Directed. 554 Directed relies upon this as evidence of the diversion of the Mercedes Sprinter opportunity and the plan of the Hanhwa parties to supply an AV unit directly to Mercedes to win away Directed's business for the DIR6160. Meneses knew about both projects and facilitated them. I will discuss the position of the Gridtraq parties later. 555 Several days later, Mercedes provided Summers, Meneses and Tselepis with Mercedes data and specifications requests for telematics. Meneses told Summers that he would respond to it, but Summers heard nothing further. It is apparent that Meneses was harbouring information for exploitation by Hanhwa of the opportunity to supply Mercedes. 556 On 8 February 2017, Dane followed up Meneses by email stating "Madour is still asking about the NAV units for the new sprinters!...". Meneses forwarded this to Lee under cover of an email asking "Any art work??". Lee responded, "Within this week…". 557 Further, on 8 February 2017, Oh informed Lee concerning newly designed rendering for the "Mercedes Sprinter Transfer Bus vehicles". There were two renderings: one for the standalone screen, and one for a 7 inch AV new concept. It would seem that the latter was the rendering proposed to replace the DIR6160. 558 Between 8 February 2017 and 9 April 2017 Meneses and Lee exchanged design renderings and options for "Sprinter Transfer bus", one of which was a rendering of the RA7000 AV unit to be mounted on a dash. Meneses responded to one option proposed by Lee, "Fucking great … Also don't forget our version". It can be inferred that "our version" was a reference to the Hanhwa version of the DIR6160 being developed to supply directly to Mercedes. 559 Further, on 8 February 2017 Meneses provided Lee with an "FMS standard", which was a fleet management standard providing codes for CAN Bus, which a Mercedes representative had provided to him the day before. 560 Now Hanhwa worked on extracting CAN Bus data in order to provide telematics functionality for the 6160 AV unit to be supplied directly by Hanhwa to Mercedes, including by Shin and one of its other employees extracting CAN Bus data on a Mercedes truck at Directed's premises. 561 Now Lee maintained that Hanhwa's work in 2017 on an AV unit called 6160 was being done for Directed. But this was at odds with his written instruction to staff to use a user interface and frame completely different from the one from Directed. 562 Work continued on the project. However, there was internal confusion about what work was being done in relation to which project. Kang recommended that two codes be introduced, the DIR6160 and the HAU6160, and stated, "Please I request you to consider dividing the code into the above two and manage them". The confusion was understandable as the development plan revealed two separate projects. The first project being a new trim plate for the DIR6160 was for Directed, the development of which was completed in September 2016. The second project was the AV unit called 6160 for Hanhwa Aus to supply directly to Mercedes. Its development was estimated to conclude between July and the end of August 2017. 563 Kim understood as at January 2017, that Hanhwa was supplying the DIR6160 to Directed for on-supply to Mercedes, but that at some point in time Hanhwa would start to supply a unit directly to Mercedes. Kim accepted that Hanhwa's role assignment and development plan for each model in 2017/2018 outlined that the design of a unit to be provided by Hanhwa Aus to Mercedes was ongoing through to June and July 2017. 564 Let me turn to some other matters. 565 From March 2017 Meneses took steps to ensure that Directed ceased work on the SuperDAVE. 566 On 16 March 2017, Meneses told Summers that the SuperDAVE project was not going ahead. Summers was told to box up all the materials and prototype units and accessories and give them to Meneses, which he did. Meneses said something similar to Pieries. The next day, Meneses put off a representative of NavNGo who had sought information about the progress of the "DIR-8000 Android project". 567 Meneses then told Siolis that the SuperDAVE project was not going ahead and that IAL would simply continue purchasing the DAVE. Meneses told Siolis that he had informed Directed to stop work on the project. At Meneses' request, Summers loaded up all the SuperDAVE prototypes and other hardware onto an Isuzu truck and into the boot of Meneses' car. They were delivered to Lee. 568 It is also to be noted that the regular contact by Jaffe, a business development manager at Directed who reported to Meneses, with IAL virtually ceased. Previously he had phone calls at least 20 to 30 times a week with IAL representatives. 569 Now the Hanhwa parties originally asserted that the design phase for the HAU8000 started from scratch in March 2017. But this is not the case. Final samples of the HAU8000 were close to ready at that time. On 8 February 2017, Lee had emailed Meneses and Mills at their Hanhwa and Leemen addresses respectively informing them that "our 2 engineering people will come and test on end of Feb and they will bring the final samples to show Isuzu". Lee confirmed this concerned the HAU8000 and that he was getting assistance from Meneses and Mills. 570 Let me say something about Lee's variable evidence at this point, as rightly contended by Directed. 571 In April 2020, Lee sought to amend his evidence concerning his problematic exhibit KL-9 in relation to the HAU8000. Further, his exhibit KL-11 was also problematic. It purported to demonstrate that the GUI design for the HAU8000 was different from that for the DIR8000. But Lee conceded that an earlier open and close list for the GUI of the DIR8000 looked very similar to that of the HAU8000 GUI. 572 Further, whilst Lee now concedes that the DIR8000, had it gone into production, would have had the Nexell S5P6818 octa-core CPU, which was the same as the HAU8000, exhibit KL-11 incorrectly suggested otherwise. Exhibit KL-11 represented that the DIR8000 would have had the Samsung Exynos 4412 CPU, which had been rejected back in December 2015. But the DIR8000 was not going to use the Samsung Exynos 4412 CPU. Park accepted that from no later than 21 May 2015, it was no longer feasible and Hanhwa no longer proposed to use the Samsung 4412 CPU in the design of the DIR8000. Further, after a number of documents were put to Han to show that the conceptualised DIR8000 was to use the same CPU as the HAU8000 subsequently used, Han attempted to clarify his evidence that the units had different CPUs. 573 Further, the DIR8000 was not going to use the Android 4.1 operating system as represented in exhibit KL-11. The MFL that Hanhwa prepared for Directed to provide to IAL specified that it was to have the Android 5.0 operating system. 574 As I have said, Lee changed his evidence as to the design history of the HAU8000 and accepted that his timeline in exhibit KL-9 representing that design of the HAU8000 started in March 2017 was incorrect. 575 Lee now asserts that the design commenced in September 2016, the mechanical design commenced in late November 2016, the hardware design commenced sometime in November or December 2016 and the software design commenced in April 2017. 576 But Lee asserts that there was only a prototype developed as at November 2016. Lee also asserts that no work was done in relation to developing a unit with the Nexell S5P6818 CPU or the Android 5.0 operating system until March 2017. 577 But Lee's email sent on 30 November 2016 records that as at this date Palone was doing field testing on a unit called the HAU8000 in November/December 2016 which was described as "the last sample". It records that Lee wanted as many debugging tests done as possible on that sample because he was going to submit it to IAL for approval, together with the DVR, the wireless charger, the TPMS and the cameras, including the digital camera, all fitted into a truck. It records that Lee was intending to present that sample unit and the accessories fitted to a truck to all the Australian IAL dealers. And it records that Lee contemplated that full scale production would commence in April 2017. 578 Girgis gave evidence which supported the following propositions and inferences. 579 First, by November/December 2016 the hardware and software development of the HAU8000 with the Nexell S5P6818 CPU and the Android 5.0 operating system was substantially developed and nearly completed. 580 Second, given that in early January 2017 Hanhwa had a GUI prepared to show IAL for the HAU8000, Hanhwa had already completed work on the hardware and software development of the HAU8000 with the Nexell S5P6818 CPU and the Android 5.0 operating system. If Hanhwa were to change the CPU or operating system at that point, that would then likely require the GUI to change substantially. His evidence is that this version of the GUI for the HAU8000 is identical to a version of the GUI for the DIR8000. 581 Third, Hanhwa would not have sent an AV unit for map porting to NavNGo unless it had already implemented the hardware and software development of the HAU8000 with the Nexell S5P6818 CPU and the Android 5.0 operating system. 582 Fourth, given that by 31 March 2017, working samples of the HAU8000, wireless charger, TPMS, cameras and GPS antenna were brought to Australia by Lee, Lee's evidence that no work was done in relation to developing a unit with the Nexell S5P6818 CPU or the Android 5.0 operating system until March 2017 was not correct. 583 I will return to Girgis' evidence in a separate section of my reasons, although I should say now that I largely accept his evidence, save for certain aspects concerning the Gridtraq parties which I will identify later. 584 Let me move further forward in the chronology. 585 On 20 March 2017, under the heading "Request for ISUZU [Truck] CAN Data detection solution", Shin informed colleagues by email at Hanhwa Korea (including copying the email to Oh) that, "we think additional software is required to get CAN Data from ISUZU trucks. Please consider this and respond". Shin was prepared to accept that he tried to extract CAN data from the vehicle but was having difficulty doing so. He rejected that he was seeking to extract CAN Bus data to ensure that the HAU8000 telematics functionality was working. He just attributed his work to "look at all the functions of the unit". But this evidence is problematic. The email indicates that the CAN equipment was functioning normally. What was missing was the required software to extract proper CAN Bus data from the vehicle. 586 Between 28 and 31 March 2017 two engineers from Hanhwa Korea, Mr Song and Mr Min Soo Kim, came to Australia and worked for four days with Shin, undertaking work connecting the RA7000 telematics unit in various vehicles including an Isuzu truck. They prepared a report. The purpose of the business trip was divided into the RA7000 and the CAN Bus data derivation. The work involved checking Mercedes and IAL CAN communication function and RA-7000 telematics interlocking. 587 Shin accepted that during this work they connected an HAU8000 installed in an Isuzu truck with the RA7000 telematics unit to see whether they communicated. An attempt to detect CAN Bus data was also made. However, there was a problem. A method was attempted, but only meaningless data could be detected. It appears that additional software was needed to fix the problem. 588 The Korean engineers' report contained photos of test work on a Mercedes Actros truck at Directed's premises. The report noted that the DIR6160 was planned to be installed on the Mercedes truck. They sought to check that the RA7000 telematics unit worked with a Mercedes AV unit. Each step of the testing process was recorded with an accompanying explanation. CAN Bus data was mounted on a DIR6160. The power cable connected directly to the CAN Bus, without Directed's CAN box. 589 Summers of Directed said that in 2017 he saw Shin logging CAN Bus data on a Mercedes Actros at Directed's premises. Shin suggested that this work was because Summers requested changes to the DIR6160, including reverse camera and parking functionality. This was rejected by Summers on the basis that the work being done logging engine CAN Bus data was not necessary for camera and parking functionality. It is also contradicted by the fact that the pictures of the test work on the Actros truck at Directed premises were in the Korean engineers' report which was concerned with checking Mercedes and IAL CAN communication function and RA7000 telematics interlocking. 590 On 31 March 2017 being the last day of the Hanhwa Korea engineers' visit and testing, Oh participated in a meeting held that morning with Dylan Hartley, and perhaps with Allen Hartley, Davidson and Lee. She prepared minutes of that meeting. 591 After the meeting's conclusion, at 1.29 pm that day, Oh emailed a number of Hanhwa Korea team members in the following terms: Isuzu series unit (DIR6200/HAU8000). Request additional tool response to check RS communication. (1) Debugging board (RS485). (2) Application file that can be installed on the computer. (3) After confirming the line for the available schedule for the above tool, request a reply. (If it is different from the schedule) (RS232 – or /5 and RS485 – TBD) as stated by Min Soo Kim. Request for reply. 592 Oh confirmed that the request for two debugging boards was further to a conversation with the Gridtraq people, "Yes. I asked our engineers to prepare the debugging board.". 593 Oh circulated the minutes provided to Dylan Hartley, Allen Hartley and Davidson at 3.26 pm, roughly two hours after her request for debugging boards from the Hanhwa personnel. The minutes are consistent with her request of the Hanhwa personnel. She could not recall if Gridtraq was the source of the request for the debugging board using the RS485 communication protocol. Directed says that an inference may be drawn from the timing of the meeting with Gridtraq that morning, the nature of the communications that followed, and the Hanhwa parties' reliance on the Gridtraq parties for telematics expertise, that the Gridtraq parties were the source of the request, so that they could check telematics communication between the CPU (RS232 protocol) with the Isuzu DAVE and HAU8000 AV units (RS485 protocol). 594 As for the minutes, item 4 was in the following terms: 4. Protocol Data sheet • RA7000: RS232 Communication • ISUZU Dave Unit & New ISUZU unit: RS485 Communication • Please update the protocol data sheet for telematics module and pass it on to me for reference. • Please refer to the attached "ISUZU Radio specification" data. 595 Oh confirmed that when she referred to the "New Isuzu unit" she meant the HAU8000. The attached "ISUZU Radio specification" was version 0.15 of the Directed Specification created by Vardon on 29 June 2016. The Gridtraq parties accept that they were provided with the Directed Specification by Oh. 596 On 6 April 2017, as part of the work done by Hanhwa Korea engineers to prepare the RS485 debugging board, Jun Kim from the R&D Lab at Hanhwa Korea provided Oh with the HAU8000 Telematics program and user manual. He said that he would deliver that day the RS485 communication cable to a team member, Sungmin Bin. It is clear that the communication cable was the cable that would connect the HAU8000 unit to a telematics unit. It can be inferred this was the CPU. 597 On 7 April 2017, Oh emailed various Hanhwa Korea personnel at 1.52 pm: Greetings. This is Hyunju Oh from Hanhwa Aus. Thank you for confirming the requested items. Here is some additional information concerning the details about the RA7000 test debugging board in the attachment because there are parts that may cause confusion. (1) Applicable model RA7000. (2) Re debugging board preparation. Item 1. RS232 debugging board requested by Webhouse to check the communication between RA7000 and the telematics module unchanged from the existing or possibly previous communication: Sample application and manual delivered to Webhouse. Number 2. RS485 debugging board. This board was requested separately by Webhouse to check the communication between Isuzu 6200 line and 8000 model (models) and the telematics so it doesn't concern the RA7000. Reference email. Please see "subject sharing RA7000-related Webhouse meeting details and requests sent on 31 March 2017. … Managing Director Kichang Lee is scheduled to have a meeting with Webhouse personnel this afternoon. As soon as the progress and finalised matters on the addition and the mounting of AMP, external AMP are confirmed, I will share the details with you. Thank you, Hyunju Oh. 598 Let me at this point deal with the Hino opportunity. 599 From 2013, Directed supplied AV units with a 6.1 inch screen to Hino, manufactured by Hanhwa, with model numbers DIR6100, DIR6100FB and DIR6110. They were supplied for use with Directed's telematics unit. 600 Hanhwa's 2017 business plan referred to previous work for Directed in 2016 in relation to a Hino AV unit. This had been a planned project in which Hanhwa would create a face-lift to the DIR6110 for Directed for supply to Hino, being a larger screen with new rendering. However, the face-lift was delayed due to project scheduling issues. 601 In early 2017, Petrovski of Hino told Jaffe that Hino wanted a new unit with a bigger screen. Meneses told Jaffe something similar. 602 Jaffe says that a few months later after Petrovski's request, he asked Meneses about the new Hino unit. Meneses said words to the effect, "don't worry about it, I've got it under control". 603 Meneses and Lee were seeking to exploit this opportunity through Hanhwa Aus. The Hanhwa business plan recorded a new project, the DIR6400, which, according to Lee's plan was to be supplied by Hanhwa Aus to Hino directly. This new unit would have a new feature, being a new operating system. This new project, "Not for Directed", was to be 100% funded by "Hanhwa HQ". The project timeline was 1 year and 3 months from the start of development to production. Careful design and selection would be important because Hanhwa would be "fully responsible for defects". 604 Between at least April 2017 and September 2017, the Hanhwa parties worked on design renderings for a new 8 inch Hino AV unit. This was a version of the DIR8000 called the HAU8200. Lee asked Meneses' opinion of them. 605 On 11 May 2017, Lee provided design renderings to Meneses at his Hanhwa email address. Lee admitted doing so for their new business. The Hanhwa email address was so Directed would not find out about it. Their plan was to show the renderings to Petrovski at the Brisbane Truck Show. 606 Lee admitted that the HAU8200 unit was going to be designed by reference to the HAU8000 with changes to be added or deleted. 607 Let me deal with another matter. 608 On 12 April 2017, a Hanhwa employee, Erin Kim, provided to relevant personnel details of the members of the email group "hanhwaho@hanhwa.com.au", which in essence was Hanhwa Head Office. Meneses was included in that group, and also in the group "info@hanhwa.com.au", and in the sales email address. Lee confirmed that the email addresses were established at that date, as were the groups. Lee gave evidence: And it includes Meneses, even though he was employed, at that time, by Directed; correct? --- I say many times that we knew that Johnny is director of Directed. 609 In April 2017, Mills took the red hard drive containing wholesale downloads of Directed's confidential information to Hanhwa Aus' office at Brooklyn. He uploaded the electronic files to a file sharing system with groups named HANHWA AUS and HAU8000 Project. 610 Further, in terms of evidence at least admissible against Mills, around that time Meneses handed Mills a USB containing Directed's confidential information and asked him to upload the contents to Mills' Hanhwa Aus PC, which he did, saving the file in a folder labelled "Directed" on the desktop. 611 Let me return to the work concerning the HAU8000. 612 On 4 April 2017, Mills shared with Oh Directed's forecast. The attachment was a detailed spreadsheet containing Directed's sales information commencing from 2009. There were about 600 stock items listed. It also contained forecasting information through to June 2018. The Directed sales prices for each item were also included. The detail of Directed's sales made on a year-by-year basis to Mercedes/Fuso were included. Further, a graph called "Isuzu Yearly Sales" contained similar information, including annual sales, percentage growth figures, and percentage of overall business figures. 613 On 11 April 2017, Oh provided Hanhwa Korea personnel with forecast information for the Australian business. Directed's forecast was attached. In her email, she stated that she was providing "a file containing up-to-date information" as well as "monthly sales plan and reference forecast data". She noted, "This is not the latest data, however our analysis based on information held by Craig Mills who used to work for Directed, suggests that we should start shipping DIR6110 from late July or early August to prevent Shortage issues". 614 Oh accepted that the sort of financial data contained in Directed's forecast was private information to Directed, but she claimed only to have checked the Hanhwa forecasting tab. There was no proper basis for Mills to have shared that information, or for Oh to have used it. Her email concluded by asking that updated information be approved by Lee. 615 Now Lee claimed that the document was used mainly for Directed's benefit. But it can be inferred that Hanhwa used this confidential information of Directed's to decide when and at what price it should move to substitute its products for Directed's products. 616 On 10 April 2017, Oh prepared a comparison MFL for the DIR8000 and the HAU8000. They were very similar. Both the DIR8000 and HAU8000 were specified to have telematics capability. And some of the so-called "differences" were already design features of the DIR8000 being the Cam9100D (digital camera), 4Ch Quad Control Box for cameras and ADAS. Oh said, "I just create this documentation for my reference". She said it was not done at Lee's request. She said further, "I didn't show this file to Mr Lee [YS Lee] or Ryan [Lee] or other people. Just for my own things". But her evidence that it was just for her own purposes is problematic. 617 On 13 April 2017, Oh provided a Hanhwa team member, Sunny [Jeongseon] Back, with the MFL for the DIR6200 (DAVE), and asked him to update the HAU8000 specifications using the same format. And there were some items requiring final confirmation by the Research Centre that were needed for preparing "client (ISUZU Truck) presentation material". 618 On 14 April 2017, minutes of an internal Hanhwa meeting led by Lee recorded in relation to the HAU8000, that "8000 model to be applied on ISUZU N/F Series". Lee said this was no more than "my plan to approach". The meeting notes suggested that delivery would be "18-20 weeks expected"; delivery of stock was planned for September 2017. 619 On 18 April 2017, pursuant to a request by Oh on 13 April 2017, Sungmin Bin of the Business Support Team provided Oh with HAU8000 specifications with detailed updates. It did not meet with Oh's approval. She asked Back for amendments. 620 On 19 April 2017, Oh followed up Back, "I am sorry for this tight schedule; but we have to provide HAU8000 and accessories' specifications and comparison information (with existing DIR8000) to our client in the very near future". That same day, Back responded with, "I am sending you the HAU8000 & DIR8000 comparison data". 621 On 20 April 2017, Oh requested from Back "updated specifications and a comparison table". Lee weighed in, "We are ALL still waiting for this sheet and due for today… We just lost another day to get order…". Back responded to Lee and Oh, "I am sending you 8000 (HAU & DIR) feature list and comparative table". In the attached DIR8000 document, those items written in red specify differences with the HAU8000. The DIR8000 document was based on Research Centre's document, first written in November 2014 and later amended. 622 Oh accepted that seven days after she modified the comparison document, she was in the process of preparing a document that provided a specification comparison between the HAU8000 and the DIR8000 to present to IAL. 623 On 21 April 2017, the Hanhwa parties made a further comparison between the DIR8000 and the HAU8000. The MFL for the DIR8000 referred to the RS-485 chip communication required for telematics functionality. 624 Now during the course of his evidence and having been taken to the MFLs for 23 July 2015, 18 November 2016, 21 November 2016, 10 April 2017 and 21 April 2017 for the DIR8000, Lee was asked to agree that each of those had telematics inbuilt hardware through an RS-485 chip. He said, "Not telematics inbuilt in the unit. Just we have RS-485 chip communication to communicate telematics module. That's all". 625 He accepted though that by including telematics as a separate item, he was telling the person reading that document that the unit could communicate with a telematics unit. He also accepted that the HAU8000, the DIR8000 and the DIR6200 had an RS485 chip inbuilt in the unit. 626 Between 10 April 2017 and 8 August 2017, various MFLs containing head-to-head comparisons between the DIR8000 and the HAU8000 were provided to IAL. The design and specification of the DIR8000 and its accessories had been previously approved by IAL when presented by Directed. It was important to Hanhwa to show that the HAU8000 was the DIR8000 with minor evolutionary developments, with identical accessories for both units. 627 On 27 April 2017 Mills sent Meneses at his Hanhwa address, and Lee, the DIR8000/HAU8000 MFL comparison sheet and HAU8000 IAL sign-off. Mills asked Meneses for his opinion on the attached documents. Clearly they were designed to show IAL that it was getting in substance the same unit. 628 In April 2017, the Hanhwa parties also started working on the PPAP for the HAU8000. 629 Oh informed Back in an email, "Hi Sunny, We haven't [got] approval regarding the label parts (Part no. or other related thing) for HAU8000 yet, but the PPAP has to be prepared by next week, so please adjust & add the top lid label data like below to line drawing temporarily". She made an additional request, "Please remove the Directed logo from the warning label". 630 Oh confirmed that the recipient was to take the document, remove the Directed logo/label and put on one for Hanhwa. She then provided Mills by email with the modified line drawing containing the Hanhwa logo. 631 Now the Hanhwa parties had not prepared a PPAP before. Oh acknowledged this; "Australia is right, but the PPAP data – this came from our Hanhwa engineers for Directed". So, Hanhwa had previously contributed information to the PPAP which Directed had to submit to IAL. But Hanhwa had not contributed all such information, nor had it contributed to the preparation of the PPAP as a comprehensive compilation. 632 On 28 April 2017, Mills emailed a Hanhwa Korea representative a purchase order for the HAU8000 for USD 325,000. Delivery due date, address and instructions were included in the purchase order. Lee admitted that Hanhwa Aus placed an order for 500 HAU8000 units at this time. 633 In May 2017, Meneses instructed Summers to provide him with a complete copy of everything in the K drive. The K drive was where all of Directed's confidential documents relating to finance, marketing, sales, service, production and testing matters were stored. These included computer-aided design (CAD) and other line drawings, product pricing, owners and user manuals, installation guides, brochures and promotional material, spreadsheets, PPAP documentation, data, kit diagrams, photos, MFLs, spreadsheets, part numbers, forecasts, and customer contacts. It included the DIR6200 PPAP. Summers did so. The timing coincides with the period when the Hanhwa parties needed Directed's information including the PPAP for the DIR6200. 634 On 16 May 2017, Oh sent Mills a spreadsheet detailing all the documents in the PPAP that Directed submitted to IAL for the DIR6200. The spreadsheet, in turn, contained embedded documents from the DIR6200 PPAP. Oh relied on Mills to assist after he had joined Hanhwa Aus, but within his restraint period. 635 Oh's covering email informed Mills that they were aiming to have all the HAU8000 PPAP data from Korea by 25 May 2017. That matters were so advanced is consistent with Hanhwa Aus obtaining the work in November 2016. Lee's only response to the written records was, "That's incorrect", but as Directed rightly contended his evidence should be rejected. 636 Her email stated in part, "each department of HANHWA Korea has been preparing and gathering the data for HAU8000 PPAP". She stated, "…we need to check some other documents whether they were created by ISUZU or Directed. Up to the subject of doc. formation, we can use the current one or have to change it". Oh recognised confidentiality/copyright concerns. "[I]f he used the same template with Directed, then this could be the problem so I just ask Craig to check the template". They had to rely on the DIR6200 PPAP because there was no other reference point. 637 Oh lacked confidence that there was no Directed confidential/copyright material: "…so it's not the confidential things. So I thought it's not the big one. And I thought that is from PPAP or just his personal things. I didn't know". But it was apparent from the embedded documents that these were sourced from Directed's PPAP for the DIR6200. 638 The spreadsheet contained embedded documents created by Directed. One was a process control plan (PCP) flow diagram prepared and approved by Mills. Oh's comment in the spreadsheet was, "Request from Korea. They asked about the purpose of this page and data because Korea does not have that kind of format or data". Oh confirmed, "we had no idea so what is that, the PCP flow diagram, our engineers have no idea. So we ask him what is that. And I have no idea where this documentation came from". Oh said, "I just guess he can access [DIR6200 PPAP] or he has memory to check that". Mills responded to Oh's email and provided the information requested. He confirmed in relation to one item, "This is a Directed form. Yes we should change layout so that it looks different. Directed have updated this form many times since this PPAP was issued". 639 On 22 May 2017, Oh referred her colleague, Sungmin Bin, to the updated "Preparation for Isuzu HAU8000 PPAP Submission". This was in response to a 15 May 2017 email from Bin, which stated, "We are currently preparing and gathering HAU8000 PPAP data based on DIR6200 PPAP data. Accordingly, below are the list and information of changes currently applied to DIR6200 PPAP data". Direction was sought in relation to a number of changes, some of which were minimal. 640 These documents show that there was no new substantial development of the unit called the HAU8000 that commenced from March 2017. 641 Further, as I have already touched on, Lee produced as part of exhibit KL-11 a purported comparison between the DIR8000 and the HAU8000. But in attempting to demonstrate that the HAU8000 was radically different from the DIR8000, Lee produced a comparison with a different unit, being the DAVE (DIR6200). Further, the GUI that Lee used to demonstrate the differences between the DIR8000 and the HAU8000 was not the correct version. Girgis produced a comparison chart of GUIs of the DIR8000 and the HAU8000 (or "Isuzu Command Centre") at different stages of its evolution drawn from contemporaneous documents. His analysis revealed they were all but identical. I will return to this later. 642 Further, and as I have also indicated, given the Hanhwa parties' problematic position, Lee filed a further affidavit which amended information within KL-9 in relation to the HAU8000 and substituted a new KL-11. In any event, when confronted with a Hanhwa Advanced Product Quality Plan dated 22 May 2017 which referred to a range of matters developed in the context of the DIR8000, Lee responded: WISE QC: Now, Mr Lee, it's true, isn't it, that what this document shows is that the development of the DIR8000 started in May – in this document, May 2015, continues through to the end of August 2016 and then the HAU8000 picks up from September 2016 on that development work and continues through to August 2017. Isn't that what that shows? LEE: Including concept-wise, including the timing of all my review, yes. 643 Similarly, despite their written evidence to the contrary, each of Park, Han and Kim accepted that between May and August 2015, the HAU8000 was designed and developed using the prefix DIR from August 2015 to the end of August 2016. They accepted that its development was carried out under the name DIR8000. And they accepted that the further development of the product from September 2016 and into 2017 continued under the name HAU8000. 644 On 12 April 2017, Lee informed Meneses by email that future commissions were to be paid by Hanhwa Aus: "No more Korea mate. It has to be under Hanhwa Aus and will discuss later. Maybe we need the contract between Hanhwa Aus and OE solution like sales commission??" Hanhwa Aus was to continue to pay him commission for Directed products. 645 Now the Hanhwa parties selected Polstar as its navigation supplier, not Directed's existing navigation software supplier, NavNGo. I agree with Directed that it is likely that this was because NavNGo had worked with Directed on the navigation software for the DIR8000 and to use NavNGo may have alerted Directed to Meneses' and Hanhwa's activities to supply the SuperDAVE directly to IAL. 646 The Polstar representative that the Hanhwa parties dealt with was Mohos, who had left NavNGo in early 2016. He knew Directed's representatives such as Siolis and Meneses well, having dealt with them previously when at NavNGo. 647 On 12 April 2017, Mills instructed Polstar on Hanhwa's requirements, including that there was a three-month schedule for launching the product. Lee accepted that the plan was for IAL to launch in July 2017. 648 From at least 27 April 2017 Mohos knew that the Hanhwa parties were pursuing the SuperDAVE to the exclusion of Directed. This was when Lee informed Mohos by email that he should not speak to Siolis about Polstar's engagement with Hanhwa. Mohos had initially been under the impression that his work was for the DIR8000 for Directed. 649 Indeed, Mills also warned Lee about this. In one communication he said: "Hi Ryan, Please be careful in polstar discussions as it appears that Zoltan thinks we are still linked to Steve/Directed with this product". Lee sought to tell Mohos that plans had changed. Lee also sought Meneses' advice "Do I need to open our plan?". Lee confirmed that he did not want Siolis to know what he was doing, hence his request that Mohos keep it a secret. Mohos responded: "I met Johnny last week who told me that you will take over the projects and now we also have real dilemmas and details to discuss so, of course, I will fly in" and "Don't worry, I don't talk to Steve. I do talk to Johnny but that should not be a problem, I guess". 650 It is evident that the Hanhwa parties worked on the Polstar navigation software for use in the HAU8000 between April 2017 and October 2017. It took seven months to develop the software. Much of this work was done in consultation with Meneses, and by Meneses involving other employees of Directed such as Summers. Polstar's communications included correspondence in May 2017 involving Lee, which was addressed to Meneses using his Hanhwa email address. Lee accepted that this work was for the HAU8000 whilst Meneses was still working at Directed. 651 During April to June 2017, at the request of Meneses, Summers reviewed and provided information and advice to Mohos about what was required to enable the Polstar software to be suitable for Australian roads, conditions, legislation and Directed's customer requirements. The information was specific. It included data points and the information that IAL needed for navigation software suitable for its vehicles. 652 On 11 May 2017, Gibson of Hino provided Directed by email with links to two new proposed Hino vehicles, the "500" and "700". That day, Meneses forwarded this to Lee. Hino shared with Directed its 2018 and 2019 plans including the launch of a new Hino truck. 653 Let me deal with another matter. 654 On 12 May 2017, Mills copied Lee into an email to a digital marketing specialist with the following request: Could you please urgently dumb down the holding page for www.hanhwa.com.au. Please remove the Hanhwa logo, remove reference to Melbourne, Australia in the text. Also if you can, blur, cover or chop out the Isuzu logo on the steering wheel. We are not ready to tell the world yet that we are setting up shop in Melbourne. Our Australian distributors do not know we are setting up and we need one or two months breathing space before letting the cat out of the bag. 655 Lee recognised the meaning of this: "At that time, yes, it was secret until Johnny had to arrange his exit". When pressed that the emphasis was on "Our Australian distributors", Lee said, "We didn't want Directed to find out first before Johnny said something because we didn't want to know. We didn't want". Tellingly, the website was not live prior to at least 27 September 2017. 656 Let me deal with some further matters. 657 On 24 May 2017, Oh sought instructions from Lee as to the user interface of the HAU8000. She questioned Lee: "And when RA7000 telematics is not linked, what should be done about it". 658 On 25 May 2017, under the title "CANBUS", Dylan Hartley emailed Davidson and Allen Hartley 10 attachments of CAN Bus information and parameters for IAL, Hino, Mercedes and UD. These documents related to the period when Dylan Hartley worked as an employee of the JV Vehicle a number of which he had marked as confidential. The Gridtraq parties claimed to have an entitlement to these documents under the DOCA. Directed says that no such documents were specified as being transferred to the Gridtraq parties under the DOCA. It says that the same is true of other such documents which Dylan Hartley sent to Davidson and Allen Hartley during the course of 2017, in the nature of CAN Bus information and vehicle parameters obtained during the course of Dylan Hartley's employment by the JV Vehicle. I will return to this topic later when dealing with the claims against the Gridtraq parties. 659 Now a work report for Hanhwa for the period 15 May to 19 May 2017 confirms that work was being undertaken to update the HAU8000 software to improve the telematics functionality through additional CAN information and that Hanhwa was moving forward in exploiting the Mercedes Sprinter opportunity. 660 From 25 to 28 May 2017 the Brisbane Truck Show was held. Relevant representatives of the parties and customers were there. 661 The evening before on 24 May 2017, Allen Hartley, Dylan Hartley and Davidson dined with IAL representatives, Grant Cooper, Humphries and McLean, at Serpico in Brisbane. By then, the Gridtraq parties knew that Hanhwa was to be the supplier of the HAU8000 to IAL, which was now no longer referred to as the SuperDAVE but as the Isuzu Command Centre or ICC. They sought to supply the telematics solution. 662 Lee had a discussion with Shanks of IAL about the supply of the HAU8000. Lee also held discussions with Petrovski of Hino, who purportedly expressed interest in Hanhwa Aus supplying directly, and with Koichi Hara of ICL about possible supply. 663 Meneses was also there and accompanied by Directed colleagues including Jaffe and Summers. At one point, whilst with Jaffe and Summers, they bumped into Dylan Hartley, Allen Hartley and Davidson. They spoke briefly with them. Allen Hartley recalls walking past Meneses and Jaffe. 664 Let me say something further about the ICL opportunity. 665 On 30 May 2017, Lee informed ICL that he needed clearance from Shanks before pitching the HAU8000 and accessories given that it was in development with IAL. 666 On 7 June 2017, Lee informed Hara of ICL that, "Sorry for taken some time but I just had a meeting with IAL staff that it is okay to have a meeting with ICL!". Lee said under cross-examination that it was Meneses that had the conversation with IAL not him. 667 A meeting was subsequently held with ICL on about 13 June 2017. The presentation depicted a DAVE unit. The truck accessories, which included a telematics unit, were the same as for the HAU8000. Lee said, "It's not same product. But function-wise, yes". 668 I agree with Directed that one of the products Hanhwa Korea sought to supply to ICL appeared to be similar to another product Hanhwa Korea supplied to Directed called the DIR1024. At the least this inference is open in light of Hanhwa's practice simply to change the prefix when diverting a product or project from Directed to itself. This new ICL product was the HAU1024. 669 It would seem that the HAU1024 was derived from the DIR1024. The minutes of an internal Hanhwa Korea meeting about the development of the new unit state: 1. Check on the Progress on the Development of HAU1024 for ICL … a. Same function as the existing DIR1024, DAB+ function added … 2. Design a. Maintain the front design concept of DIR1024 as much as possible b. Design to be build based on the drawing of DIR1024 LCD … b. Ways to reduce costs on moulds required (e.g. unifying button moulds, using existing button moulds, and etc.) – A request made to the device design team to consider designing the same hard ware frames as HAU8200 for HINO … By the end of July: 1st Demo Board (Using a Mock-up or DIR1024) 670 Lee said under cross-examination that it was an "off-the-shelf product and it's a very typical single-DIN product which is like CD, radio tuner and Bluetooth. This is just around the world". His denials are problematic. If it was an off-the-shelf product, there would be no need for a bespoke development meeting. A meeting with ICL occurred in Japan on 11 July 2017. Lee admitted it was their plan to supply ICL with the HAU8000 with a different sized screen and changes to the GUI. ICL were also considering buying both the HAU1024 for Japan and DRLs for Russia and Japan. 671 The ICL opportunity was pursued through to December 2017, after the commencement of these proceedings. Samples of DRLs were provided. The opportunity was to supply 65,000 sets. 672 Let me return to further work concerning the HAU8000. 673 On 26 May 2017, the Hanhwa parties prepared a spreadsheet recording year to date sales and projected sales. The spreadsheet recorded their intention to replace sales of the DAVE to Directed with the sales of the HAU8000 to IAL by November 2017. 674 On 30 May 2017, in an email exchange with Lee, Dylan Hartley noted that a new JV company involving the relevant Gridtraq and Hanhwa entities needed to be set up. 675 On 1 June 2017, under the title "Isuzu Can Bus Info", Dylan Hartley emailed Davidson and Allen Hartley two attachments being telematics engine parameters dated 21 March 2014 and an IAL telematics MFL and specification dated September 2015. 676 In early June 2017, Summers and Mohos undertook a three-hour drive in an Isuzu truck around Melbourne to evaluate and provide detailed feedback on the Polstar navigation software. Specific changes to make it suitable for IAL were recommended. A list of tasks for Polstar was drawn up. All of this work was done by Directed's employees, at the direction of Meneses, but this work was not for the benefit of Directed. 677 On 8 June 2017, Mills asked Lee by email whether he has "considered undercutting navngo/Directed for the Isuzu 6200 navigation business… It would take many months before Directed questions why Isuzu [don't] order many navigation from Directed any more". 678 Let me return to the further work on the D-MAX opportunity. 679 On 9 June 2017, Oh sent to Mills high resolution images of three units, one of which was the D-MAX 8 inch AV unit. So, following the diversion of the Isuzu D-MAX opportunity, work was being done to bring it to fruition, with such work built on the HAU8000. 680 On 19 June 2017, Lee sent an email to ICL representatives providing a dropbox link to a presentation on Hanhwa Aus which recorded that, as at that date, Meneses was the Australian contact and Lee was the contact for Korea, Japan and Hong Kong. Hanhwa was seeking to supply ICL an AV unit, telematics unit, steering wheel remote, DRLs and wing mirror cameras. Lee represented that "Hanhwa is the distributor (supplier) the lights parts for IAL". Under cross-examination, he recognised this was not true: "It's half-half because Hanhwa is the supplier for the lights parts for Isuzu through Directed". He accepted that he wanted them to believe something not true to obtain the business. 681 On 22 June 2017, Lee informed Meneses by email of the terms of his sales com/salary "package" of AUD 700,000 per annum. It included a proposal for Hanhwa Aus to pay Meneses' outstanding commission for the period January to June 2017 of USD 150,000. A short time later, Lee informed Meneses by email, "One more thing that you will have 40% shares then we can decide on financial year to share from the Hanhwa profit". 682 The package was detailed. It encompassed what Meneses was receiving by way of commissions: these would be partly by way of payment to OE Solutions and partly by way of salary. By this point Lee had been in a long and trusting relationship with Meneses and Meneses was the lynchpin in the relationship with the OEMs. He had the skills and contacts Lee needed at Hanhwa Aus. It would seem that Lee wanted to use them to strip Directed of its business and to create new business. It was proposed that Meneses would own 40% of the shares in Hanhwa Aus. 683 Let me deal with some June events and in particular the meeting on 30 June 2017 where Meneses and Lee presented the HAU8000 and some accessories to IAL. According to Oh's Hanhwa group wide email following the meeting, it was attended by "7 executives and staff including the presidential board of Isuzu Truck (Aus.)". The meeting was scheduled for up to two hours. 684 Let me deal with some background. Work leading up to this by Hanhwa seems to have had some urgency. 685 On 21 June 2017, Oh emailed Park, essentially asking him to drop everything to fix some issues and bugs with the HAU8000; she said that "prior to the first mass production, we are preparing for the presentation and product demonstration to our end-user customers". She warned that the presentation was critical. If there were errors, "it would be difficult for us to say to the client again that we are still improving the product". Lee claimed that this was his first and final opportunity to present to IAL, and that the products had to be made to "like production level so we can show the Isuzu people". The unit was now at production level, consistent with the documentary timeline. 686 On 29 June 2017, the day before the presentation, Mills emailed Lee and Meneses at his Hanhwa email address about IAL pricing. He asked Lee and Meneses to review the sell prices "so that we are all on the same page tomorrow". Plainly, Mills, in breach of his restraint, was involved in pricing decisions. Otherwise, he noted that two versions of navigation were to be included, namely, a parts option and an OE fit. Lee accepted that this was about Hanhwa's business, not Directed's business. 687 The presentation to IAL on 30 June 2017 took more than an hour and a half. 688 Lee claimed that Meneses came in only at the end. But I do not accept this evidence. It was Meneses who had the very strong and long relationship with IAL, who had had most of the direct dealings, and who had been involved in preparing the presentation. 689 The handwritten notes of one of the IAL representatives of the 30 June 2017 meeting record the attendees. On the Hanwha Aus side, they were "Ryan Lee, MD" and "Johnny Meneses – starts 1 August". Lee confirmed that this meant that Meneses would be starting at Hanhwa Aus on 1 August. Head to head pricing of the DIR8000 and the HAU8000 was discussed. It is convenient that I set out an image of the minutes: 690 The Hanhwa price for the HAU8000 was AUD 1292. This was $2 more than the price that Meneses had advised Lee on 27 August 2015 that he was seeking to pitch the DIR8000 to IAL, but Directed's ability to achieve that was contingent on Directed obtaining supply of the AV unit from Hanhwa at USD 650. I should also note some other matters. 691 First, Hanhwa's price to IAL is almost identical to the AUD 1300 that on 18 November 2016 Lee told Oh when "We won Isuzu". 692 Second, Hanhwa Korea supplied the HAU8000 to Hanhwa Aus at USD 650. 693 Third, Meneses had presented Directed's price to IAL on 8 December 2016 at AUD 1495. I agree with Directed that he must be taken to have intended it to be substantially dearer than the AUD 1300 that had been agreed as between Hanhwa Aus and IAL on 18 November 2016. 694 Now Lee's evidence that price was not discussed and that these prices must have been added by the IAL author, does not reflect the reality. The notes are evidently minutes of a meeting. They are headed, "Hanhwa Australia". They record the IAL attendees on the one hand, and "Ryan Lee, MD" and "Johnny Meneses, starts 1 August" on the other. Further, most matters noted could only have been known to Hanhwa (e.g. "Hanhwa total staff – 250 people). 695 Lee also offered to IAL that Hanhwa would absorb the tooling cost. In doing so he was ensuring that Hanhwa Aus could supply the AV unit to IAL cheaper than Directed could. 696 Now, that Meneses assisted in the pitch for Hanhwa Aus to win this business from IAL whilst still employed at Directed was a breach of his obligations, and done to the knowledge and for the benefit of Lee and the Hanhwa parties. 697 Subsequent to the presentation, Lee included Meneses at his Hanwha email address on communications with Shanks of IAL, even though Meneses' "1 August" start date had not yet commenced. This is contrary to the suggestion that Meneses did not participate in the pitch. Indeed, on 13 July 2017 in an email to Shanks, Lee referred to a discussion between Shanks and Meneses: "As discussed with JM". 698 On 6 July 2017, at the request of Shin, Summers sent him by email Directed's CAN Bus data for Isuzu N, F, FX and FY Series trucks. 699 Between 13 to 15 July 2017, the Hanhwa parties and representatives of the Gridtraq parties including Allen Hartley and Davidson met in Korea for the purpose of sharing telematics system technology and reviewing the integration with the safety screen and telematics module. 700 Let me at this point in the chronology deal with other July 2017 events. 701 In July 2017, Oh modified Directed's "OE parts required table" which she then provided to Mills. The Directed document was dated 4 July 2017. Oh emailed it to Mills on 10 July 2017. She said she obtained Directed's information from Shin even though he was not a Directed employee. She did not indicate that her use was authorised by Directed. 702 On 4 July 2017 Meneses sent an email to Siolis and Tselepis advising that he had knee surgery booked in for 20 July 2017 and that he would be off work for 3-4 weeks. Meneses also referred to leave he was planning to take from 6 July 2017 and stated that he would be returning to the office on Monday, 17 July 2017. Meneses was in Indonesia from 11 July 2017 to at least 6.50 pm on 17 July 2017, although he had several calls to Shanks of IAL and Lee during that period. He was back in Melbourne on 18 July 2017. 703 On 19 July 2017 the following occurred. 704 At 8.03am, Meneses sent an email from his personal email address to his Directed email address attaching his purported resignation letter from Directed. 705 At 11am, IAL's Product Policy Committee met to discuss the formal approval of the HAU8000. It was resolved to approve Hanhwa Aus' supply to IAL of the HAU8000. The IAL PPC minutes recorded: 1.1.2. Proposal for local parts inclusions and costs. Mr Humphries described the process that led to the specification and pricing of the proposed new 8" touchscreen Multimedia unit, from supplier Hanhwa Australia. It was noted that the core unit manufacturer remains Hanhwa in South Korea (common to the current DAVE unit), however the supplier of this new unit and its accessories, is a direct subsidiary of Hanhwa. This new arrangement is in contrast to the current DAVE unit supplier, Directed OE, an independent Australian distributor. PPC was also advised that several key staff from Directed OE have moved employment to Hanhwa Australia. Hanhwa Australia officially commences operations from 1 August 2017, however they have been working well before this time in preparation. Their new product has undergone almost two years of development and testing in anticipation of adoption by IAL. The key features and proposed cost changes were presented to PPC (see separate file). Of note, the PPC approved inclusion of: • the base HAU-8000 Multimedia system (working title SuperDAVE), • the satellite navigation feature, and • the steering wheel remote control buttons for all VC43 MY18 FX & FY models. The total local cost change by model for these inclusions amounts to around [redacted], while bringing the standard SatNav into line with F Series and competitors. Refer separate spreadsheet for details. 706 I should say that in terms of the evidence before me there is no evidence that IAL knew of the mendacity of Meneses or the Hanhwa parties. 707 At 1.35 pm, Meneses called Shanks' mobile number from Keilor and he and Shanks spoke for 15 minutes and 55 seconds. At 1.56 pm, Meneses called Lee's mobile number from Tullamarine and he and Lee spoke for 11 minutes and 6 seconds. At 2.57 pm, Meneses sent an email to Siolis, copied to Tselepis, with subject "OE", asking if they could have a quick meeting at 3.30pm. At 4.02 pm, Siolis sent a reply email to Meneses, copied to Tselepis, stating "o.k". A calendar appointment, with subject "AT – Meeting" was sent to book "Meeting Room US" from 4.00 pm to 5.30 pm. Meneses' phone records reveal that he did not have a break of more than about half an hour between his phone calls throughout the day until between about 4 pm and 5 pm. At 5.02 pm, Meneses called Summers' mobile number from Keilor. At 5.16 pm, Meneses called Mills' mobile number from Keilor. 708 It may be inferred that Meneses waited to resign until he received confirmation from Shanks at 1.35 pm that the Isuzu PPC had formally approved Hanhwa Aus as the supplier of the HAU8000. It is also apparent that Meneses waited to resign until he had called Lee to confirm that they were ready to action their plan after they had formally landed a contract. 709 It was not until 4 pm on 19 July 2017 that Meneses met with Siolis and handed him a letter of resignation. 710 During the meeting Meneses told Siolis and Tselepis that he was having difficulty with the amount of work he had to do. He said that he was stressed and feeling under resourced, he was having trouble with his knee and needed an operation, his mother was unwell and needed care, he was interested in pursuing other business opportunities and considering a different career path and that he had been looking into buying an interest in a sportswear company. He also told Siolis and Tselepis that he was considering working for Hanhwa but only in relation to projects outside Australia. 711 Siolis told Meneses not to resign, that Directed would support him in whatever way possible to lighten his load, and that he could work part time. Meneses responded, "OK". Siolis gave Meneses back the letter of resignation. Siolis did not read the letter before handing it back to Meneses. Siolis and Tselepis were cross-examined about the circumstances of this meeting and its aftermath. Meneses continued to work at Directed. 712 On 21 July 2017, Shanks sent an email to Lee, copied to Meneses, formally advising that the "Super Dave project" received provisional approval at IAL's PPC meeting on 19 July 2017. 713 In July 2017, Lee says that Meneses showed him a resignation letter and Meneses said he had given notice to Directed and could start working at Hanhwa Aus in August 2017. 714 On 24 July 2017, under the subject "Email addresses / Aliases" Mills provided Meneses by email, using their "Hanhwa" addresses, with email addresses he had set up for him as aliases. Mills suggested that Meneses "change the starting letter from a "j" to an "m" to reduce the likelihood of a customer or supplier sending an important email to jm@directed.com.au". Clearly, both Mills and Meneses appreciated that Meneses continued to work at Directed, and continued to conceal his relationship with Hanhwa Aus from Siolis and Tselepis. 715 On 26 July 2017, Lee met with Shanks. At about 1.00 pm he provided Shanks with meeting minutes, copied to Meneses at his Hanhwa email address. The minutes confirmed that representatives of IAL including Shanks would fly to Korea on 21 August 2017 for four nights. A meeting on 4 August 2017 with Lee, Meneses and Humphries at Laverton to sign off the MFL was confirmed. Shanks was to provide the draft supply agreement that week. Hanhwa Aus would then start to supply the "SuperDAVE" on October 2018. 716 Now Lee used the term "SuperDAVE" because "Isuzu call it SuperDAVE". But I agree with Directed that this demonstrates that the HAU8000 was the SuperDAVE. It was not designed independently of the DIR8000, but was ready for production. All the design and development work previously been done by and for Directed had been appropriated. In essence Lee continued to call the AV unit the SuperDAVE to show IAL that what he was offering was the same as the DIR8000. 717 On the evening of 26 July 2017, Meneses informed Floudas, Siolis and Tselepis by email that: "Gents, As you might know by now I am at home after this knee replacement operation. The amount of pain is unbelievable, I am taking 28 different tablets a day. It is very painful. Anyway please find attached certificate. I will be on email and on phone if anyone needs anything. Speak soon. Johnny Meneses". This email and attached medical certificate through to 8 September 2017 is inconsistent with Meneses having already resigned. 718 On 27 July 2017, under the subject "Zoltan", which was a reference to Mohos of Polstar, Lee asked Mills and Meneses to drop equipment off to Palone the next day. So, work with Polstar on navigation for the HAU8000 continued, utilizing Palone who was a Directed employee. 719 On 28 July 2017, Summers and Meneses received an email from Steve Reidie of Directed NZ, following an enquiry from Bruce Reid of Isuzu NZ. Reidie asked for the timelines of "these units", being a reference to the SuperDAVE. Now Meneses was still keeping Directed in the dark about the HAU8000 project. He responded: We have submitted a proposal to IAL back in Nov 2016 regarding new audio and other accessor[ies]. They have not agreed to anything at this stage, so the project is on hold until further notice. Directed will ONLY go ahead with this project until IAL give us the go ahead. If my staff have given you the wrong impression I am sorry. You should NOT pass any information to your customers in NZ until the product is available in the Australian market first. Sorry. 720 This email response of Meneses was nothing if not mendacious. It is tainted with half-truths if not false statements. 721 On 31 July 2017, in the context of a pending meeting in August, Reidie asked Meneses and Tselepis whether they planned to attend. Reidie stated: "I know you JM are knocked up and can hardly walk anywhere so I would say you won't be". Meneses responds: "Hi Gents, This meeting is a fact finding mission for us and them and to confirm what we can do based on the features they have supplied us?...SR, please confirm the date and time". This further evidences Meneses' continued employment at Directed. 722 Further, on 31 July 2017, Meneses provided Shanks of IAL by email with Meneses' travel itinerary to Seoul for the period 21 August 2017 to 25 August 2017. This was during the period of Meneses' "sick leave" from Directed pursuant to the medical certificate. The purpose was for IAL to audit Hanhwa Korea's production facilities for the supply of the HAU8000. Meneses joined Shanks at the meeting in Korea. Shortly after this, the SuperDAVE became known as the "Isuzu Command Centre" or "ICC". 723 The Hanhwa parties say that Meneses commenced employment at Hanhwa Aus on 1 August 2017. But as the evidence discloses, his work for and at Hanhwa Aus commenced from incorporation, and for other Hanhwa entities years earlier. But in any event, Meneses was still employed by Directed as at 1 August 2017. 724 On 25 August 2017, Meneses from his Hanhwa address informed Colin Muir of Isuzu NZ by email: "Thanks for your email. My situation is very difficult at the moment and very confidential. I am still at Directed for now. Will call you soon to discuss". In other words, more than five weeks after Meneses' purported notice of resignation, he had made it clear that he remained employed by Directed. 725 Let me turn to another topic. 726 By an internal presentation dated 9 August 2017, the Hanhwa parties reported on the progress of various initiatives within the business. A report of "New Isuzu" contained an image of the AV unit, with its user interface containing a telematics icon. The accompanying written bullet points stated, "Telematics (CAN BUS) on ready". The presence of the telematics icon contradicted Lee's evidence who claimed that it was not on the HAU8000 GUI. 727 On 10 August 2017, under the heading "Commercial in Confidence", Dylan Hartley emailed a Webhouse employee, copied to Davidson and Allen Hartley, two attachments being telematics engine parameters dated 21 March 2014 and an IAL telematics data collect proposal dated 7 November 2012. 728 On 11 August 2017, Oh attended a meeting with the engineers of Gridtraq. Save for Oh, there were no other Hanhwa attendees. She made handwritten notes of the meeting under the heading "8/11 Meeting RA7000". 729 Directed says that it would seem that an attempt by Gridtraq to connect or to integrate the RA7000 telematics unit with the HAU8000 unit can be inferred from her notes: "HAU8000 indication on/off; if it's possible to add set-up"; "Cable tie telematics module type. Isuzu (RA7000)"; "BS bracket wider than before required"; "Isuzu truck found CAN not speed. Speed info required"; "RX TX Connect required [Illegible] / telematics". 730 Directed says that Oh's evidence that her notation relating to "HAU8000" was unrelated to the subject of the meeting is problematic. I will return to this later, although I would say now that she was dealing with a number of products. 731 Further, as to gathering telematics or CAN Bus data from the Isuzu truck, Oh said: We will require that data to – yes, to get some more information so our engineers asked, ask about that things so they required so we discuss about engineer's request with Gridtraq when we had the meeting. 732 On 21 August 2017, Dylan Hartley asked Oh by an email with the subject "Meeting – RA7000 and Isuzu Screen Integration" that, "please can we meet upstairs to go through the RA7000 screen. Nick and I would like to discuss a few points with you, it should not take too long." His agenda referred to the RA7000, the Isuzu screen integration and the GUI designs. Shortly afterwards, Oh responded, "Hi Dylan, I will attend the meeting. See you soon". 733 On 23 August 2017, Oh provided Keightley of the Gridtraq parties with the feedback and other information. The Gridtraq parties had made requests about certain new features. Keightley also wanted to be provided with a sample HAU8000. Oh told Lee that they had asked for that. 734 According to Directed, the request for an HAU8000 sample suggests continued work to integrate the RA7000 telematics unit/CPU with the HAU8000. Directed says that this work was a prelude to a presentation made by Hanhwa and Gridtraq to IAL in September 2017. 735 Oh gave Lee a progress update on 29 August 2017. She forwarded to him "the latest protocol file that I received from Webhouse today", further stating, "We do not expect much problems with transmission of images or processing of TMPS". 736 Further, on 29 August 2017, Gibson of Hino asked Pieries for dimensioned drawings for the new Hino AV unit, providing him with the dashboard dimensions to help. Pieries provided Gibson with the drawings that same day. Meneses, apparently to prevent Directed from pursuing this opportunity, told Pieries, Summers and Jaffe: "Gents, slow down!! Speak soon about this project." This confused Pieries. Meneses did not raise it again. This provides further evidence of the diversion of the Hino opportunity. 737 Now given that he understood that the SuperDAVE project was not going ahead with IAL, Pieries asked Meneses whether Directed should try to sell the SuperDAVE to Hino. Meneses told him words to the effect, "They wouldn't be interested". But that is what Hanhwa Aus was doing with the HAU8200 with Meneses' involvement. 738 Let me say something about the events of September 2017. 739 In September 2017, Siolis observed that Meneses had returned to work with the assistance of a walking cane. 740 On 4 September 2017, Meneses using his Hanhwa email address provided Lee with his tax file number and other formal details, stating: "This is the details you require so we can start our partnership for many more years to come!". The details provided were consistent with those needed to be registered with ASIC as a director. Directed says that this is consistent with Meneses becoming a business partner with Lee, with 40% equity in Hanhwa Aus. Lee responded, "Very much appreciated. Yes. We will be a good team for the future. This is for our family also". Directed says that it is apparent that it was contemplated that Meneses was to hold equity. I will return to this topic later. 741 On 5 September 2017, Lee asked Shanks and Humphries, copied inter-alia to Meneses and Mills, whether he could show them on 11 September 2017 "the navigation software on the ICC device for you". The intention was to demonstrate the Polstar navigation software on the HAU8000. Mills, who was still in the period of his restraint, and Meneses were also to be in attendance. 742 On 20 September 2017, Leemen Australia was incorporated. Further, Hanhwa Aus commenced to pay Meneses an annual salary. The first pay period was 20 September – 19 October 2017. This demonstrates that Meneses' start date at Hanhwa Aus was later than 1 August 2017. 743 On 22 September 2017, Hanhwa Aus paid OE Solutions AUD 61,003.50 in payment of its invoice dated 21 September 2017. 744 Let me deal with another event that I will return to again much later. 745 On 25 September 2017, Allen Hartley, Davidson and Dylan Hartley presented to IAL a proposal to supply telematics units and telematics services, seeking to transition IAL from its "current Telematics Solution". 746 Directed says that the presentation evidences that the Gridtraq parties actually achieved telematics connectivity between their CPU (telematics unit) and the HAU8000. I disagree. 747 The Gridtraq parties made many references to the telematics unit and solution being available for the "Isuzu radio". A significant example is their statement, under the heading, "Isuzu Command Centre Head Unit Integration" that, "GRIDTRAQ Developed Proprietary Protocol – Designed a hardware communication module for screen integration". Directed says that the references to head unit integration and Isuzu Command Centre integration meant integration of the Gridtraq telematics unit with the HAU8000. 748 The presentation further stated in the context of a driver behaviour indicator that, "Data can be customised and displayed to the driver on the screen by fleet group, national averages and bench marks". 749 But Dylan Hartley's evidence, which I accept, was that the many references to telematics connectivity in the printed presentation were prospective. Directed challenges this. I will return to this topic later. There are two issues that I will later address being, first, whether actual connectivity was represented and achieved and, second, whether this was dealing with the HAU8000 at all. 750 On 26 September 2017, Meneses asked Directed staff for a PDF copy of each item as per the IAL PPAP list. That same day, Meneses informed Siolis and Tselepis by email, "Gents, I will be in NZ 3rd, 4th and 5th October 2017. Hino have a Track Day for suppliers and customers to attend. They are releasing the new 500 model, as you know Steve Reidie will be on leave for 3 weeks. I will also visit Fuso, Isuzu and MB". He claimed and was paid expenses from both Directed and Hanhwa Aus in relation to that trip. Clearly, he was still employed by Directed. 751 Lee also knew that Meneses was still employed at Directed. On 2 October 2017, Lee sent Meneses at his Directed email address a current outstanding remittance report requesting payment of amounts due from Directed to Hanhwa Korea. Lee admitted he could have rung Directed's CFO, Floudas, but did not do so. The following day, Mohos of Polstar asked Lee and Meneses by email, "It is October now. Is Johnny's move and Hanhwa supplying Isuzu directly public now? We still have problems…". 752 On 4 October 2017, installation instructions were prepared for the HAU8000. They were authored or adapted by "MP" (Marcus Palone). They copied Directed's instructions, but with HAU8000 details. They were later emailed by Mills to Shanks at IAL, copied to Meneses, Lee and others. Subsequently, a new version was sent by Mills to Shanks, copied to Meneses, Lee, Palone and others. 753 On 6 October 2017, but unknown to Directed, Hanhwa Aus formally entered into a supply agreement with IAL for the HAU8000 and accessories. The agreement was co-signed by Meneses and Lee as directors of Hanhwa Aus. But at this time Meneses was still employed by Directed. 754 Further, on 6 October 2017 Meneses forwarded to Lee an email which had been sent to his Directed address by a Fuso representative; attached were photos of a new truck dash. Lee agreed that following Meneses' New Zealand trip, this represented an opportunity to provide a new unit to Fuso. However, he said that the opportunity was for Hanhwa Aus not Directed. He said he paid no attention to Meneses' Directed email address. Lee's evidence illustrates the conflict Meneses was in. 755 On 11 October 2017, Meneses sent an email from his Directed email address to Siolis and Tselepis: "Year to date sales figures. Gents, hope you are both well. As you know, we've had another rocket month and still growing for October sales. This year, we again will beat the previous year.". In other words, Meneses represented to his employers that he remained an active and engaged employee at Directed, almost 3 months after he purportedly resigned. The email then stated: With our new arrange[ment] in mind can you please arrange my share of 50% payment ASAP and balance of 50% within the next 3 years. I have now a new arrangement with Hanhwa in which I will ONLY look after OS markets, for the past 3 months they have another guy looking after AUST. I have also decided to buy into Joma Aust, which with take 30% of my time. (Hence Payout) Please let me know if you have come up with a figure. Also what is happening with the new sales guy or GM? 756 This was the only written evidence of Meneses communicating an intention to work at Hanhwa. The reference to "OS markets" (overseas markets) reinforces that this is what Meneses had indicated to Tselepis and Siolis on 19 July 2017 when he purported to resign. And I agree with Directed that the email itself was intended to deceive. Meneses was not working for Hanhwa looking after "OS markets" only. There was no "other guy" looking after "AUST". It was Meneses. 757 Siolis says that when he received the email, he considered it a negotiation ploy. But Tselepis said that he did not understand what the email meant. Siolis said he thought it was an attempt by Meneses to negotiate a higher salary. 758 Siolis' evidence that he unsuccessfully tried to speak with Meneses about it in the period 11 October 2017 and 20 October 2017, being the period before Summers and Dane revealed to him Meneses' wrongdoing, is supported by the evidence. 759 Lee confirmed that he and Meneses travelled a lot in October. They flew out on 11 October 2017, being the day Meneses sent the email to Siolis and Tselepis, travelling to Hong Kong, China and Japan for a month, and then to the United States. On 11 October 2017 Meneses sent a text message to Tselepis at 10.34pm. Meneses' phone records reveal that he was in Hong Kong on 13 October 2017. On 15 October 2017 Meneses sent 5 text messages to Siolis throughout the day from Hong Kong. Meneses was in China between 17 and 19 October 2017. On 18 October 2017, Siolis sent an email to Meneses, copied to Tselepis, asking when he was back so that they could catch up. At 5.09pm on 19 October 2017, Nic Topping of IAL sent an email to Mills, copied to Lee and Meneses, advising that there was a review meeting scheduled for 9.30am on 20 October 2017 "with Johnny to sign off the hardware and software" for the HAU8000. Meneses and Mills had a "Lock Down" meeting in relation to the HAU8000 with IAL on 20 October 2017. Meneses' phone records reveal that he was back at the Brooklyn premises on 20 October 2017 between at least 12.04pm and 1.19pm. 760 In any event Meneses' email is further confirmation of Meneses' dishonest dealings with Siolis and Tselepis. And the reference to an arrangement regarding a payment is something that I give little credence to. 761 On 17 October 2017, Oh informed Hanhwa/Leemen personnel that the first batch of the HAU8000 was pending; as I have said, this was otherwise called the ICC or Isuzu Command Centre. Estimated delivery was 27 October 2017. A detailed schedule was provided. 762 Meneses was to meet IAL on 20 October 2017 to check their test results and feedback. At this point, Meneses was making all relevant arrangements for the first delivery to IAL of the ICC. Indeed, 160 sets were to be delivered to IAL on 27 October 2017. 763 On 18 October 2017, Mills emailed Meneses, Lee and others a bill of materials to be used to build stock at Hanhwa Aus. 764 On 19 October 2017, Meneses received his first Hanhwa Aus official payslip for the pay period commencing 20 September 2017. OE Solutions also invoiced Hanhwa Aus for $45,833 + GST totalling $50,416.30 for October 2017, which was paid on 24 October 2017. 765 Further, on 19 October 2017, Oh informed Mills that from 30 October 2017 two new members would commence work at Hanhwa Aus, being Calleja and Hashim. Both were at the time employees of Directed. That same day, Mills also provided Lee, Meneses and Shin (copied to Palone) with a proposed bill of materials "that we will be using to build stock at Hanhwa Aus". 766 On 20 October 2017, Meneses met with IAL leading to a series of requests for Hanwa Aus to action. 767 Let me now say something concerning the genesis of these proceedings. 768 On 20 October 2017 Meneses' deception was revealed by Summers and Dane after Siolis presented to staff Directed's plans for a new building it was to erect on land near IAL's offices. At this point Summers and Dane realised that Meneses had been lying to them when he told them that the directors were trying to sell the business and/or retiring. They informed Siolis and Tselepis of some of Meneses' misconduct. 769 On 23 October 2017, Meneses last used his security card to access the Directed's premises. 770 On 26 October 2017, Allen Hartley, Meneses and Lee were in Japan. They had dinner together. Lee and Meneses had also arranged to meet with ICL on 27 October 2017. 771 On 26 October 2017 these proceedings were commenced and I issued search and freezing orders. 772 On 27 October 2017, the search orders were executed at the Brooklyn premises and the homes of Meneses, Mills and Lee. Meneses made 5 calls to Allen Hartley. They were both still in Japan. Allen Hartley claimed that Meneses did not refer to a search order during the calls. But his affidavit stated that he had received several phone calls from Meneses that morning who seemed quite distressed by what was happening back in Melbourne. He then clarified his evidence to refer to "a sheriff of the court or whatever it is at his house and demanding his wife gets a lawyer". Meneses made 6 calls to Palone. 773 On 6 November 2017, the freezing orders were amended. This allowed Hanhwa Aus to supply IAL's orders for the HAU8000. They supplied a total of 388 HAU8000 units to IAL. 774 Pursuant to the freezing order, a part of the proceeds were put into a trust account pending the outcome of these proceedings. 775 During early November 2017, Lee says that Shanks told him that despite the amendment to the freezing order, IAL did not want to get involved in any legal issues between the Hanhwa parties and Directed, so it would cease ordering the HAU8000. 776 Now at this time Directed remained reliant on Hanhwa Korea for the supply of the DAVE. 777 On 8 November 2017, Oh emailed Proghios requesting a forecast of its forward orders of AV units from Hanhwa Korea so that Hanhwa Korea could order processing parts from its supplier. The requested forecast was provided. 778 On 17 November 2017, Hanhwa Korea and Leemen Korea gave notice to Directed that no orders for products from Directed would be accepted after 28 February 2018. 779 That same day, Meneses from his Hanhwa address wrote to Shanks of IAL directly: Dear Ian, Let me first say that we are very very sorry to put you and IAL in this position. We don't have control on what Directed will do or not do but I can assure you that HanHwa are here to support IAL in any decision you take. As per our previous conversation if you require us to confirm anything to do with our products please let me know and we are more then happy to come in. You know what HanHwa can do and we can help in any way please let us know. 780 IAL decided no longer to communicate with Meneses. 781 On 20 November 2017, Hanhwa Aus paid OE Solutions $45,833 + GST totalling $50,416.30. There was no suggestion that the Hanhwa parties' relationship with Meneses would cease notwithstanding these proceedings. 782 On 22 November 2017, Meneses approached Shanks of IAL copying in Lee, offering to supply on behalf of Hanhwa Aus LED work and driving lights. Lee knew that at that time Directed was supplying DRLs to IAL which they sourced from Hanhwa Korea. Meneses made a similar approach to Shanks on 30 November 2017. 783 Now Lee admitted that he was aware of the restraint clause in Meneses' employment agreement and that he did nothing to stop Meneses from pitching competitive product to IAL. When it was put to Lee that Meneses was subject to a restraint, he responded, "Not actually care about employment, to be honest". 784 On 27 November 2017, Lee emailed Mohos of Polstar copied to Meneses, conveying Hanhwa Aus' intention to exploit Meneses' relationships with truck customers, and to pursue all of them to the benefit of Hanhwa Aus. Lee falsely denied various matters in that email. 785 First, as to the statement "JM has already approached the Fuso GM to introduce Hanhwa company and we will present Hanhwa structure to supply multimedia unit for the Fuso trucks", Lee claimed that this was "wrong information from Johnny" and that this meeting had not, in fact, occurred. 786 Second, as to the statement "We are 100 per cent sure that they are keen to do with our product to supply all trucks in 2018", Lee also said this was not true. It was not lying; he was expressing confidence intended to encourage Polstar, "because they got a strange letter from Directed about stop or allegation to Polstar or something". Lee admitted that he knew Directed was supplying AV units to Fuso. He also admitted that he did not take any steps to stop Meneses. 787 Third, as to the statement "Johnny Meneses has also approached the Hino product manager and say Hanhwa is here to support and supply", Lee said, "He didn't approach Hino. I did approach Hino". He admitted they were proposing to supply to Hino the HAU8200. But he also claimed it was different from the HAU8000. And yet his email had said, "We will introduce our new project very soon. See description as following. Eight-inch screen. Please see attached the rendering to be offered. DVD mechanism, Android, full capacitive touch, very similar to the HAU8000 unit. We will send working sample on February 18. I am assume that Hino will take navigation standard fit. Approximately 5000 per annual sales.". 788 Fourth, Lee also denied that they proposed providing Mercedes with the HAU8000 with a seven-inch screen and different fascia, even though his email said: Mercedes-Benz and Fuso is same group. And good thing is there is there's the same person to control or decide, seven-inch screen same resolution as I send this week with Android base, navigation standard fit, 2 to 3000 per annual sales. Also, similar timing on quarter 2 2018 start to release. 789 Now as Directed correctly contended, Lee had a precise appreciation of Directed's allegations of misconduct against Meneses, Mills, the Hanhwa parties and himself. He had been put on notice of Meneses' contractual restraint pursuant to his employment agreement with Directed. But even though he was on notice of Directed's claims, Lee did not care that Meneses remained subject to this restraint. He and Meneses resolved to pursue all the truck customers with which Meneses had a relationship, irrespective of whether they were existing customers of Directed. This is all dubious conduct on the part of Lee to say the least. And clearly Lee dissembled about the meaning and effect of the email when cross-examined about it. 790 Now by December 2017, IAL was not prepared to continue purchasing the HAU8000 due to the Court proceedings. IAL was also concerned about the effect of Hanhwa Korea no longer supplying the DAVE to Directed. 791 On 18 December 2017, Lee attended a meeting with IAL representatives, being Shanks, Taylor and Andrew Harbison. The minutes from Shanks to Lee noted: Ryan, Thank you for your time 18/12/2017, from our meeting attended by yourself, Phil Taylor, Andrew Harbison and myself. IAL confirmed that there is no set date or guarantee to fit the ICC unit. Ryan reported that Hanhwa Aust have 200 ICC's in Australia and 500 at Hanhwa Korea. Quantities are similar for the Steering wheel control. Ryan reported that Hanhwa Australia is set up and capable to support and warrant all Hanhwa manufactured product in service supplied by Directed OE. Ryan reported that there is no formal supply agreement between Hanhwa and Directed OE and that Hanhwa wants to stop supply of product to Directed OE from Feb 2018 orders received with no product being supplied after Nov 2018, however Directed OE have not agreed to this and wants the period of supply extended beyond Feb. The supply of product from Hanhwa to Directed is subject to Feb court action. IAL reported its concerns regarding continuity of supply of audio product and the importance of audio systems and their effect on vehicle supply. … Ryan reported that Hanhwa could not supply the DAVE unit (as it is today) to IAL because Directed OE paid for the facia tooling however the DAVE 'back end' chassis and electronics are Hanhwa owned. To supply the DAVE unit with a new facia is possible within 2 – 3 months. Hanhwa have a facia available that was to be used on a UK product that did not eventuate using this facia on the DAVE body is a possibility for continued supply of DAVE product. … Ryan reported that Hanhwa could supply SAT NAV similar to IAL current product by April 2018. … IAL asked Ryan about Johnny Meneses's employment status at Hanhwa to which Ryan said Johnny has been employed by Hanhwa Aust since August but not as a Director. Ryan noted that our Supply agreement needs to be re-signed without Johnny's signature. Ryan divulged an employment agreement between Johnny Meneses and Hanhwa Korea dating back to 2005, details were not discussed. … 792 On 19 December 2017 Lee forwarded to Dylan Hartley, Davidson and Allen Hartley a 2014 version of the Directed Specification, asking Dylan Hartley "What is this one??". Lee claimed that he sent it to Dylan Hartley because he wanted to understand whether this was the document referred to by Directed in its then Statement of Claim. However, Directed did not refer to the Directed Specification in its pleading until 2019. I agree with Directed that Lee's explanation is not plausible. So far as Dylan Hartley and the Gridtraq parties are concerned, I will discuss this matter later in my reasons. 793 On 22 December 2017 by an email from Lee to Shanks, Hanhwa Aus suggested that it would supply IAL with the DAVE unit, being the back end with a new fascia. Under cross-examination, Lee initially claimed he could do this because Directed had only paid for the tooling for the fascia. He eventually admitted that Directed had also paid for tooling for the chassis. Lee referred to this as a misunderstanding. 794 Now the timeframe for delivery of the proposed unit was "only three months" plus one month's shipping. But Directed says that such a timeline could only have been achieved if the working sample was derived from a prior product. I agree. 795 Hanhwa Aus also offered to take over the supply to IAL of parts previously supplied to IAL through Directed. The same parts would be supplied with the part numbers changed from Directed part numbers to Hanhwa part numbers. 796 On 28 December 2017, Shanks of IAL contacted Lee: Please provide a sample of the DIR6200 (DAVE unit) with your proposed Hanhwa [fascia] which we discussed at our 18/12/2017 meeting where you reported that with the new facia Directed OE would have no claim on this combination. 797 Once again, Lee suggested that IAL was offered, "New development from Hanhwa". But after being shown Shank's email he recanted, and said "On that email, it says DAVE unit but to my knowledge, to my perspective is that the DAVE unit which is their core, that was our design that we can use our software and hardware". Lee was then shown his response to Shanks: "This unit will differ ONLY front [fascia] however "back end" will be the same PCB/Connection. Further, it will be the same accessory connection…". 798 Let me turn to some events in 2018. 799 On 5 January 2018, Lee informed Shanks that he could show IAL the first working sample (new fascia/tool) on Monday, 22 January 2018, if they so wished. Lee confirmed he was ready to show the working sample to IAL by that date. According to Directed, this swift turnaround demonstrates derivation from a prior unit. 800 On 12 January 2018, Lee met with Shanks at which he provided IAL with renderings of the "new 6200 unit with new [fascia]". The new fascia and changes to the printed circuit board (PCB) and GUI were intended to "differentiate the proposed unit from the current DIR6200 (Directed unit)". Lee also quoted Shanks for the "new 6200 unit with new [fascia]". The quote was AUD988.67 (audio and standard navigation), AUD192.30 (navigation) and AUD866.57 (audio). The quote suggests that the specifications of the AV unit had been determined. 801 On 19 January 2018, IAL invited Directed to participate in a closed tender for the supply of an AV unit to replace the DAVE. However, IAL gave Directed no details as to its requirements for the new AV unit. 802 On 23 January 2018, Lee presented to IAL a working sample of the "new 6200 unit with new [fascia]". Shanks confirmed its attributes by email to Lee (copied to other IAL representatives) the next day: Ryan presented a working version of Hanhwa 6200 with new [fascia] and GUI. This version is Telematics ready with the Telematics icon hidden but can be unhidden on production units by a sequence of button presses meaning it can be enabled without requiring the audio to be removed and returned to Hanhwa. Production units will have some minor changes to the knobs and controls from the working version presented. Ryan explained the CPU running charge (as reported previously). … Ryan passed accessory line drawings and installation guide for the new Hanhwa 6200 unit. IAL asked Ryan to issue a letter from his law firm confirming the ownership of the Hanhwa 6200 (as presented) at that no parties other than Hanhwa paid for development, tooling or any other contributions to its production. IAL wants absolute clarity of its ownership. Mapping for the new 6200 unit uses Here maps with Polstar compiling the maps to Hanhwa. … Lead time 3 months for the new 6200 (as reported previously). 803 On 24 January 2018, Mills Oakley on behalf of the Hanhwa parties provided the requested letter of comfort in relation to the new 6200 unit with new fascia to Hall & Wilcox, acting for IAL. The letter claimed that all inputs (fascia, chassis, GUI, PCB Design and Software, PPAP and Installation Guide) had been newly developed by Hanhwa Aus, that Directed had no involvement in the concept, development or inputs to the unit, and that neither Meneses nor Mills had in any way been involved in the concept, development or inputs to the unit. 804 Now I agree with Directed that given that the unit was the DAVE with a new fascia, all three of these representations were misleading and known to be so by the Hanhwa parties and Meneses. So much is clear from an email from Lee to Shanks several days later. 805 On 25 January 2018, Lee provided Shanks by email with the soft copies of cost for the new 6200 unit with new fascia. 806 On 28 January 2018, Lee provided Shanks with the latest design for the new 6200 unit with new fascia. Lee blind copied this email to Meneses who, in turn, on 30 January 2018 responded to Lee, "Looks great! Does the back of the unit also change to the current HAU8000?". Meneses' query on this aspect was to enable Lee to give further information to IAL. Lee replied to Meneses, "The back chassis would be similar with 8000 but by using gender harness, we can connect the current accessories harness (6200) into the new unit". 807 On 12 February 2018, Directed presented to IAL its ideas for a replacement AV unit for the DAVE with significant improvements. 808 By 16 February 2018, Hanhwa and IAL had changed the plan from supplying the DAVE with a new fascia, to supplying the HAU8000 with a new fascia and with the same accessories as approved for the DIR8000 and the HAU8000. The unit was called the LM18I. 809 By that date, there was an MFL for the LM18I, which at this point had a 6.1 inch screen. 810 Now the Hanhwa parties' case is that in early 2018, Lee instructed Park to design a new product to supply to IAL because IAL had been put off the HAU8000. 811 On 22 February 2018, Shanks reported to colleagues on the outcome of a meeting held earlier in the week to discuss "audio supply and coverage". He reported: We considered the new Directed offering and the alternative Hanhwa 6200 unit (supplied by Hanhwa Aust, not via Directed) for supply past midyear and decided to select the alternative Hanhwa 6200 unit for a number of reasons including cost, ICC stock, current accessories, audio range consistency. Also we thought the Directed offering was too risky given the lack of detail presented by them. … Tomorrow Simon and I are meeting with Hanhwa to approve the final spec of their 6200 unit and clarify its accessories which I expect will be the same as the ICC and some DAVE accessories. 812 Save for changes to the fascia, screen size, location of physical control buttons, auxiliary port and USB, the LM18I and its accessories were substantially the same as the HAU8000 and its accessories. I will address these matters later. 813 On 23 February 2018, Shanks provided Lee with some specific questions about the cost. He wanted to know if the 12 January 2018 quote was "with Windows operating system and a 6.1 inch touch screen". He sought a quote for the LM18I with the Android operating system and 6.1 inch touch screen. Shanks also asked Lee to update the MFL to include a 5 year warranty, 16GB hard drive, and software updates by USB. He told him that the SD/USB Multimedia SD card slot was pending. He also asked him to add "PIP" to navigation. Finally, Shanks instructed him to revise the comparison chart to put an "O" (designating "available") for the steering wheel remote control and PDF reader/viewer. 814 On 26 February 2018 and in response to Shanks' requirements, Lee sent Shanks an email with the proposed rendering, the updated MFL, diagrams of the unit with all accessories, and the requested revised comparison chart comparing the LM18I to the HAU8000. It would seem that the intention was to confirm with IAL that the HAU8000 was substantially similar to the LM18I. 815 Whilst Lee's evidence was that the LM18I was never designed to communicate with any telematics unit, the comparison stated "telematics third party optional", which suggests that telematics capacity was built into the unit to be able to provide telematics functionality. Further, the accessories diagram demonstrated that the back end of the LM18I and HAU8000 were the same. 816 The comparison appears to have been required to provide IAL with the comfort to move forward quickly without the typical testing process. Shin had testified to the typical length of the design process, the steps involved and the need for testing. Of course, the DIR8000/ HAU8000 and its accessories had been sampled, inspected, tested and approved by IAL in 2016 and 2017. 817 On 5 March 2018, Shanks asked Lee whether Hanhwa Aus could delete the CD mechanism in order to reduce cost. Lee responded that they could remove the CD mechanism, but if they wanted to cut cost, they should consider having a bigger screen ("maybe 6.2 inch") rather than 6.1 inch. These changes were then adopted and approved including the larger screen. 818 On 15 March 2018, the LM18I MFL accommodating these two changes was formally approved and signed by IAL. Now the minor differences between the LM18I and the HAU8000 were described by Girgis. According to Girgis, the changes required were minimal if the earlier work was used. 819 Lee confirmed that he told Shanks that two samples were to be available by 15 May 2018. He then made a concession demonstrating derivation of the LM18I from the HAU8000: And I want to suggest to you, sir, that the fact that samples would be ready for delivery by 15 May shows that there was no development of a new unit from scratch or from the beginning. Do you agree with that? ---Not from the beginning, but we can actually utilise some of … from the HAU8000 stage. 820 On 28 March 2018, Directed was informed by IAL verbally and in writing that Directed had lost the tender to the Hanhwa parties. Shanks told Brett Stafford several times that the new AV unit was not the SuperDAVE. He told Stafford it was a completely new unit offered by Hanhwa. He also told Stafford that the AV unit would operate using Polstar navigation software. 821 Further, on that day Shanks informed Lee that the LM18I had been approved and that production quantity stock was required by July 2018, with "4 samples asap to test and trial". Lee responded by thanking him for the opportunity and stated that they would start production. The following day, Oh issued a design commencement order for the LM18I which anticipated shipping at the end of June 2018. 822 The LM18I was not a wholly new unit offered by Hanhwa. In the limited time available, it would not have been feasible to design a new product from scratch. The Hanhwa parties' lack of proof as to independent design derivation is a further material factor. I agree with Directed that the LM18I is the HAU8000 with cosmetic changes. 823 The Polstar navigation software is another relevant factor. The development timeline of the first version of the Polstar software was in the order of seven months. I agree with Directed that it is to be inferred that the navigation software was the same as or based on the earlier iteration. 824 Further, the Hanhwa parties say that in May 2018 Shanks or Humphries of IAL informed Lee, when he asked about the possibility of telematics in respect of the LM18I, that IAL did not have any plans for telematics functionality from the Hanhwa parties or the Hanhwa parties' AV units. Lee says that when he asked them why this was the case, he was told that was confidential to IAL. Now Directed says that based on the timeline this explanation is implausible. The LM18I had been approved for purchase two months earlier. The comparison document produced specifies "Telematics (3rd party – optional)". But I disagree. Lee's evidence is not implausible on this aspect. 825 On 17 May 2018, coinciding with the last day Hanhwa Korea had to accept orders from Directed, IAL placed with Directed its final orders for the DAVE units and associated parts. 826 On 22 June 2018, Lee provided Shanks by email with a table comparing the parts of the HAU8000 and the LM18I and their accessories. This indicated that many of the parts and their accessories were common. 827 In June 2018, Directed was informed that it had lost the business for Isuzu New Zealand to Hanhwa. Hanhwa Aus won the contract to supply Isuzu Holden NZ with a 6.2 inch multimedia unit, being LM18I. 828 On 9 July 2018, the first order of 500 units of the LM18I were delivered to IAL. 829 On 20 July 2018, the second order of 500 units of the LM18I were delivered to IAL. 830 Now until October 2018, IAL continued to purchase some of the stock of DAVE units and accessories which Directed had supplied to it by Hanhwa Korea. 831 Let me say something about Meneses' and Lee's pitch of the LM18H to Hino. 832 By 27 November 2017, Meneses had pitched the HAU8200, being the HAU8000 with a flip down screen, to Hino. The HAU8200 was renamed the LM18H. 833 On 22 February 2018, a meeting was arranged with Hino. Lee asked if Meneses could come with him. The meeting took place on 27 February 2018. According to the minutes, Hanhwa explained that it would cease to accept orders from Directed by 27 May 2018. Meneses supplied Hino representatives with new drawings and an MFL based on a previous meeting. 834 There were further exchanges leading through to June 2018. At one point, Meneses advised the Hino representative that, "Our product does have inputs for a telematics solution". This was consistent with Hino's desire to add CAN Bus communication to display general truck information and speed/temperature on screen. 835 Girgis gave evidence, which I accept, that the LM18H is the same as the LM18I with minor changes, and includes telematics capability. Lee accepted that the LM18H had inputs for telematics to be connected to a telematics unit. Lee also accepted that the telematics device was to be one provided by the Gridtraq parties. 836 Directed says, which I accept, that the LM18H was the HAU8200 (a version of the HAU8000) with the HAU8200's flip-down screen. The product was derivative as is apparent from an instruction by Hanhwa Aus to Polstar to use the same user interface navigation design for the LM19M/F, but colour matched with the UD GUI. 837 Now Directed succeeded on a head to head basis with Hanhwa Aus. In about July 2018, Petrovski of Hino informed Hanhwa Aus that Directed had been chosen as its preferred supplier over Hanhwa Aus. I will discuss later the consequences of this for Directed's case. 838 Let me also say something about Meneses' and Lee's pitch of the LM18I to ICL. 839 Hanhwa Aus sent a number of samples to ICL in Japan. ICL had been offered a version of the LM18I. But the product provided contained features which Japanese customers would not accept. The big touch screen was a problem. So was the fact that there was no CD/DVD slot. 840 Lee then sought to meet with Hara to offer a solution, on the basis that he could offer a unit which had CD, DVD and Blu-ray. The option available was substantially the HAU8000, which had CD capacity. 841 At this point, let me say something about Meneses' and Lee's pitch of the LM19M and LM19F to Mercedes/Fuso. 842 On 1 December 2017 Meneses first approached Parthiv Parikh, Procurement Manager, Productive Material for Mercedes, seeking a meeting on behalf of "our Managing Director Mr. Ryan Lee and myself to present our company Hanhwa and all its products" for Fuso and the Mercedes trucks range. Lee accepted that Meneses was able to provide the introduction, and that he was a very important part of Hanhwa's ability to win that business. 843 A meeting occurred. Lee attended the meeting knowing that Hanhwa was supplying AV units and accessories to Directed for it to supply to the Daimler group, which were then installed in Mercedes and Fuso vehicles. The purpose of the meeting was for Hanhwa to pitch the LM19M and LM19F to the Daimler group to replace Directed's products. 844 On 17 May 2018, Lee provided a representative of the Daimler group with a letter providing notification that Hanhwa was to cease supply to Directed. Lee crafted the letter to encourage the recipient to get new supply from Hanhwa. 845 In September 2018, Hanhwa Aus won the contract to supply Mercedes/Fuso trucks to New Zealand with a 6.2 inch (LM19M) and 7.0 inch (LM19M) multimedia unit. 846 The Hanhwa parties and the Gridtraq parties made a joint presentation to Mercedes in about late September 2018 to take over the provision of telematics hardware, software and services to Mercedes and Fuso. Lee said that it was Meneses and the Gridtraq parties who gave the presentation. 847 The presentation was headed, "Mercedes Benz/Daimler Truck and Bus Australia Pacific Pty Ltd Telematics Overview & System Migration Strategy". The presentation stated: The Hanhwa / Gridtraq Telematics Team designs, develops, manufactures and supports integrated vehicle tracking solutions, fleet management, vehicle telematics, connected mobility, automotive services, IoT tags, asset tags, insurance telematics; including but not limited to hardware, firmware, software and customer programs, technologies, applications and systems. … This document outlines a roadmap and provides checklists to assist with the transition of Telematics services from a legacy telematics provider to the Hanhwa-Telematics Gridtraq Platform and Service, mitigating some of these challenges. 848 The presentation was to be read in conjunction with a "Hanhwa Telematics Proposal – 20 September 2018". In a slide comparing "Traditional telematics vs The Hanhwa Offering", it was said that "Head Unit & Vehicle Integration" could be provided. Lee accepted that there was such integration between the telematics unit and the AV unit within the vehicle. What Lee was not prepared to accept was that the telematics unit the subject of the presentation was the RA7000 telematics unit or that it had progressed beyond the planning stage. Lee's denials were maintained even when it was pointed out that a pictured telematics unit was identical in appearance to the RA7000 telematics unit, and even though he accepted that Hanhwa was by that time producing or developing the LM19F and the LM19M. I would reject his denials. 849 On 19 October 2018, Mohos confirmed with a staff member that Hanhwa had "won the Daimler group for the whole region for a 4 year contract. This means 11,300 trucks with navigation in the first year". This was a reference to Hanhwa Aus' success in winning the Mercedes/Fuso (LM19M) contract. He then referred to the urgency involved, "The other side of the story is that Mercedes will run out of the old unit in a few weeks so we only have one month to finalise everything and release the product". Further, it was stated: The bad news: • We need some changes in the UI as it should not look the exact same as the Isuzu product and other possible truck products. Abby will send you the GUI plan later today. Please, try to harmonise the menu (and maybe some parts) to this if possible. We need no miracles just difference from Isuzu and some similarity to this GUI guide. • The user manual will be printed. That takes 20 days. So I need to be ready with it by the end of this month! This means that the screens (at least in Photoshop) must be ready a few days before that. … 850 I agree with Directed that this seems to confirm that the LM19M was not started from scratch. The LM18I was the reference point. The only changes were to the user interface. So much is clear given that a version of the Polstar LM19M navigation software was available for road testing in Australia and its owner manual was drafted within 3 to 4 weeks from Hanhwa being successful in its tender for the supply of the LM19M to Mercedes. Further, two days earlier Meneses had confirmed to Daimler group representatives that samples of their new 7-inch model would be available for testing "this month". 851 By 13 November 2018, after the Daimler group had accepted Hanhwa's submission, the first release of the LM19M/F unit was ready and sent. Lee claimed that the development timeline was longer than this, asserting that Hanhwa's tender had been unofficially accepted in July 2018. But I agree with Directed that this evidence is inconsistent with other written evidence. 852 The LM19M/LM19F for Mercedes/Fuso is essentially the same as the LM18I. So much was acknowledged by Lee in email exchanges with Mohos on 9 November 2018 which were in essence: Mohos: One question: is this unit any different inside? Or is it 100% identical with the LM18I in the electronic parts and OS (apart from the GUI)? If there is a minimal chance for an incompatibility then I should wait for Polstar to check the new hardware before I start the test drive in Australia. Lee: All same mate! Only GUI is different. Mohos: That's a relief. Thank you and kind regards. 853 December 2018 was the last time when Fuso purchased AV units or accessories from Directed. It purchased the LM19F from Hanhwa Aus. 854 Let me say something further concerning UD and the LM19U unit. 855 From 2011 to 2018, Directed sold UD an AV unit with the model number DIR6300FB. During this period Directed supplied UD with 2,884 units. 856 From 2012 to 2019 Directed supplied UD with telematics units designed in 2010 by Directed. 857 In September 2018, Hanhwa sought to supply UD. On 27 September 2018, Meneses and the Hanhwa team presented to members of the Volvo Group Purchasing team. The next day, Meneses confirmed with those representatives that Hanhwa would have available 6.1 and 6.5 inch models from March 2019, with an 8 inch model available in May 2019. This timing assumed that Volvo confirmed the project and model by early October 2018. Volvo sought in response consolidated presentation material and a written quote for each unit. 858 On 5 October 2018, Meneses provided pricing, a comparison feature list, Hanhwa presentation and an MFL. He advised that the time needed was "5-6 months from start to finish". He further stated that, "We are looking for a 4-5 year contract with Volvo". He claimed that the units were being prepared only for UD and Volvo Group and would not be used for anyone else. But I agree with Directed that it is likely that the development did not occur from scratch. Minor modifications were made to an existing unit. And a complete MFL was unlikely to have been available in such a short period. In my view the LM19U is the same as the LM18I with minor changes. 859 In November 2018, Directed learned that it had been unsuccessful in its proposal to supply a new AV unit to UD. The business to supply the LM19U was awarded to Hanhwa Aus. UD purchased an 8-inch AV unit and a 6.1 inch unit. The 8-inch unit had a flip-down screen. 860 Since March 2019, UD has not purchased any further AV units or accessories from Directed. It purchases the LM19U from Hanhwa. Directed continues to supply UD with telematics units and telematics services. Further, the LM19U navigation software was available for road testing in Australia within 3 to 4 weeks from Hanhwa instructing Polstar in relation to the software's development. 861 Finally on this aspect and generally, Hanhwa Korea continues to supply the LM18I to Hanhwa Aus which, in turn, continues to supply IAL. Hanhwa Korea continues to supply the LM18F, the LM19F and the LM19U to Hanhwa Aus. In turn, these continued to be supplied to the relevant truck manufacturer. 862 There is one other matter I should note at this point. In 2019, Hanhwa International Connected Vehicles Pty. Ltd. was incorporated. Directed says that this is the entity through which the Hanhwa/Gridtraq JV is now conducted. Now Davidson holds shares personally and/or through an entity, Allen Hartley owns shares via an entity, and Dylan Hartley also owns shares. Allen Hartley said that Hanhwa did not have an interest in the company. He said there was no agreement but an "intention" that "if the business does alright, the Hanhwa family will have a 50% interest in the company". He said "they submitted a tender document using the Hanhwa name with Hanhwa's blessing and if they are successful, the deal would go through the company". Further, he denied that he was holding an interest in trust for Hanhwa. And he denied that the company was the incorporated Hanhwa/Gridtraq JV vehicle. Now Directed says that the denials should be regarded as false, but in my view I am not able to find this. 863 It is appropriate at this point to now turn to the detailed evidence concerning the various units and their similarities and differences. The relevant units – similarities and differences 864 Before turning to the relevant comparisons between the units and accessories the subject of voluminous evidence, let me say something concerning development timing. 865 Let me begin by noting that Girgis reviewed Lee's original exhibit KL-9. According to that exhibit the development of the DIR6200 (DAVE) unit commenced in September 2011 and was completed in November 2012. 866 A convenient portrayal of the DIR6200 set out in the relevant MFL is as follows: 867 The design stage to arrive at the overall shape, configuration, size and features of the AV unit took place over 13 months. This indicates that there was a lot of interaction between the designers of the AV unit and the customer in relation to these matters. Girgis noted that according to Lee's exhibit, in relation to the DAVE the mechanical design took 5 months, the hardware design took 5 months and the software design took 5 months. 868 Now Girgis had been involved in the design of electronic products designed for installation in vehicles, and for a new complex product such as the DAVE he considered that a 13 months development timeframe was normal. 869 Contrastingly, in the case of the DIR8000 (SuperDAVE) unit, the design and development occurred over the period August 2014 to March 2017, in the sense that the design and development was completed to the stage of the delivery of working samples. 870 It is convenient to note that Directed's proposal to IAL in 2015 represented what was to be the proposed DIR8000 in the following form: 871 Now based on Girgis' experience, in his view 2014 to 2017 was a long period of time for development of a new product of this kind. He expressed the view that this indicates that there was extensive interaction during the design phase between the designer/manufacturer and the customer. 872 Further, it is to be noted that the fact that a working sample of the SuperDAVE was able to be shown to the ultimate customer, IAL, indicates that a substantial amount of work had been undertaken in relation to the mechanical, hardware and software design and development aspects for the AV unit and that the design stage had been substantially completed. 873 By comparison to the DAVE and SuperDAVE design and development, in the case of the HAU8000 for supply to IAL, the design phase was completed within 4.5 months, and the mechanical, hardware and software development phases were completed within 4 months. This indicates that the design and development undertaken in respect of another product was used in order to undertake the design and development of the HAU8000. 874 It is self-evident and Lee confirmed that once a new generation of AV unit has been developed, other units are developed based on that existing hardware, software and/or design, which are much quicker to develop. 875 In the case of the LM18I for supply to IAL, the design phase was completed within 4 months, and the mechanical, hardware and software development phases were completed within 3.5 months. This indicates that development undertaken in respect of another product was used in order to undertake the design and development of the LM18I. 876 In the case of the LM19F6.2 for supply to Fuso, the design phase was completed within 3 months, the mechanical phase was completed in 2.5 months, the hardware phase was completed in 3 months and the software phase was completed within 3.5 months. This indicates that development undertaken in respect of another product was used in order to undertake the design and development of the LM19F6.2. 877 In the case of the LM19F7 for supply to Fuso, the design phase was completed within 3.5 months, the mechanical phase was completed in 2.5 months, the hardware phase was completed in 3 months and the software phase was completed within 3.5 months. This indicates that development undertaken in respect of another product was used in order to undertake the design and development of the LM19F7. 878 In the case of the LM19M6.2 for supply to Mercedes, the design phase was completed within 3 months, the mechanical phase was completed in 2.5 months, the hardware phase was completed in 3 months and the software phase was completed within 3.5 months. This indicates that development undertaken in respect of another product was used in order to undertake the design and development of the LM19M6.2 879 In the case of the LM19M7 for supply to Mercedes, the design phase was completed within 3.5 months, the mechanical phase was completed in 2.5 months, the hardware phase was completed in 3 months and the software phase was completed within 3.5 months. This indicates that development undertaken in respect of another product was used in order to undertake the design and development of the LM19M7. 880 The design phases for each of the LM19F and LM19M models were overlapping. This is consistent with the evidence of Lee that both AV units are virtually identical. 881 In the case of the LM19UD6.1 for supply to UD, the design phase was completed within 3.5 months, the mechanical phase was completed in 2 months, the hardware phase was completed in 3.5 months and the software phase was completed within 3.5 months. This indicates that development undertaken in respect of another product was used in order to undertake the design and development of the LM19UD6.1. 882 In the case of the LM19UD8 for supply to UD, the design phase took place over 20 months commencing in September 2017 and completed in May 2019. Whereas the mechanical development occurred over 3 months between February and April 2019, the hardware phase was 3.5 months between February and May 2019 and software was 3 months between March and June 2019. The long period of design development as recorded in exhibit KL-9 is due to Lee including development of the flip down screen for the HAU8200 unit developed for Hino in the period April 2017 to September 2017. It appears that there was no development work on this AV unit between September 2017 and February 2019. This indicates that, apart from the development of the screen for the HAU8200 which was developed in 2017 over 3 or 4 months, mechanical, hardware and software development undertaken in respect of another product has been used in order to undertake the design and development of the LM19UD8. 883 Let me now turn to the main questions concerning the relevant derivations and comparisons. 884 Relevantly to the matters that I want to discuss in this part of my reasons, I should say at the outset that it was the opinion of Girgis that: (a) the design, hardware and software of the HAU8000 was derived from the work undertaken in relation to the DIR8000; (b) the design, hardware and software of the LM18I was derived from the work undertaken in relation to the DIR8000/HAU8000; (c) the design, hardware and software of the LM19F, LM19M, LM19U, LM18H was derived from the work undertaken in relation to the DIR8000/HAU8000/LM18I; and (d) in the case of the screen for the LM18H and the LM19U, the design was derived from the work undertaken in relation to the screen for the HAU8200. 885 As part of his task, Girgis reviewed the contents of Lee's exhibit KL-11 and sought to identify the differences between: (a) the DIR8000 and the HAU8000; (b) the accessories to the DIR8000 and the accessories to the HAU8000; (c) the HAU8000 and the LM18I and their accessories; (d) the LM18I and the LM18H and their accessories; (e) the LM18I and the LM19M and LM19F and their accessories; and (f) the LM18I and the LM19U and their accessories. 886 Now criticisms were made of Girgis' evidence by the Hanhwa parties and the Gridtraq parties. I have already touched on that earlier in my reasons. It is convenient to postpone further discussion of those criticisms until later. 887 Let me turn to the relevant comparisons and my relevant findings unless I state otherwise. The HAU8000 unit v the DIR8000 unit 888 The HAU8000 is the same as the DIR8000, but with a slightly faster CPU. The additional features listed for the HAU8000 were all software-based changes, which could have been incorporated into the DIR8000 through software upgrades, because the hardware and operating system are the same. 889 The DIR8000 MFL displayed the DIR8000 in the following terms: 890 By comparison, below is a front product design view of the HAU8000 taken from the HAU8000 MFL: 891 And below is another front product design view of the HAU8000 taken from the HAU8000 MFL: 892 The only differences between the HAU8000 and the DIR8000 are those that I will describe in a moment. 893 The design, hardware and software of the HAU8000 was derived from the work undertaken in relation to the DIR8000. 894 The GUI for the HAU8000/Isuzu Command Centre as at 5 April 2017 is substantially the same as the GUI for the DIR8000 as at 18 December 2015. 895 Both the DIR8000 and the HAU8000 specified the Android Automotive 5.0 operating system. 896 The DIR8000 December 2015 bill of materials, the MFL for the DIR8000 as at December 2016 and the comparison table comparing the DIR8000 to the HAU8000, record that both units had the Nexell S5P6818 CPU, which is an octa-core CPU. 897 Further, although the DIR8000 may have been so designed, there was a debate between the parties as to whether the HAU8000, LM18I, LM19M, LM19F and LM19U were designed to communicate with a telematics unit and had telematics capability. 898 As I have already indicated at the outset of my reasons, telematics is a term derived from telecommunications and informatics. It refers to the collection of information and monitoring of the operation of vehicles that includes heavy vehicles, heavy machinery and commercial vehicles as well as the transmission of the information to servers for further use and processing. This usually includes information collected from the vehicle such as its location typically using a GPS receiver, movement, and the state of a vehicle's hardware such as engine temperature, oil pressure and speed. 899 And as I have said previously, a telematics unit is a hardware device that collects information from the vehicle or other devices such as a user interface, transmits information via a mobile telecommunications network and communicates with an optional user interface to receive information either from the user interface computer or from the user via a touch screen and to provide information to the user interface to present to the user or be further processed by the user interface computer. 900 Now the only differences that Girgis had identified in the design, features and specifications of the HAU8000 to the DIR8000, which evidence I accept, were the following. 901 First, there was a slightly faster CPU being a 1.6Ghz octa-core compared to a 1.4Ghz octa-core. 902 Second, the HAU8000 has a touchpad writing feature on-board for undertaking phonebook or music search, which is likely due to additional software being installed rather than a hardware difference. 903 Third, the HAU8000 is listed as having a temperature range of -20 to +85 degrees C whereas the DIR8000 is listed as having a temperature range of -10 to +70 degrees C. It is unclear whether this refers to the operational temperature or the storage temperature range. Having regard to the other similarities between the units, it is unlikely there is any actual difference in temperature ranges of the units. It may be that the difference is due to differences in the method of measurement or calculation or one set of specifications used operational temperature whereas the other uses storage temperature. 904 Fourth, the HAU8000 has air gesture functionality included whereas this is not listed for the DIR8000. The reference to a motion recognition gesture "sensor" is not accurate as air gesture functionality relies on input from an on-board camera which both devices have on top, so this change would be achieved through an application loaded onto the device rather than any change at the hardware or operating system level. 905 Fifth, the HAU8000 has a mute button which presumably appears on the screen during certain operations, so this change would be achieved through an application loaded onto the device rather than any change at the hardware or operating system level. 906 Sixth, the HAU8000 has SMS function, meaning that when a text message is received on a phone connected via Bluetooth to the AV unit, the text message can be displayed. 907 The HAU8000 is listed as having Smartlink or Carlink phone mirroring function. This is not a change but rather the specification of which two products would be used to deliver the phone mirroring functionality. This feature would be achieved through an application loaded onto the device. 908 In summary, Girgis expressed the following opinions which I accept. 909 First, the HAU8000 was the same as the DIR8000, but the HAU8000 had a slightly faster CPU. The additional features listed for the HAU8000 are all software-based changes, which could have been incorporated into the DIR8000 through software upgrades, because the hardware and operating system are the same. 910 Second, in relation to the accessories, the specification and the proposed functionality of the parking sensors, the TPMS, external microphone, wireless charger, DVR, ADAS, GPS antenna and telematics unit/tracking system remain the same. As he noted, the design for the parking sensors and TPMS for the HAU8000 are identical to those listed for the DIR6200. The design for the steering wheel remote, wireless charger and the DVR appeared to be the same. The GPS antenna has the same appearance as the GPS antenna for the DIR6200 and is mounted on the unit and connected to it in the same manner and sourced from the same manufacturer. 911 Third, the part numbers of the cameras for the HAU8000 are HCAM001 and HCAM002 and he had not been able to identify which cameras were proposed to be supplied for use with the DIR8000, but the specified requirements for those cameras were the same as for the DIR8000. 912 Fourth, as for the indicator side camera trigger, this is referred to as an optional accessory and there was not much information for him to ascertain what this feature is. It appeared to him to be an optional cable that uses the indicator signal to activate relevant cameras and display the image on screen. He had not identified any documents that reveal that this was an optional accessory proposed to be available with the DIR8000. 913 Fifth, as for the drawing of the external SD card reader for the HAU8000, it appeared to him that this SD card reader is the same as the proposed for the SD card reader for the DIR8000. 914 Further, he noted that the parts which were supplied for the DIR6200 and its accessories were carried over in relation to the supply of the HAU8000 and its accessories. The carry-over parts recorded were the CAM9052 although the CAM9052D is said to be a new part, the HCAM002, the HOE01 reverse camera harness, 5 of the camera extension harnesses, the TPMS and its harness and sensors, the front iPod cable, the DRLs /fog lights and harnesses, and the front 3 way auxiliary cable. 915 The documents record that the parking sensor kit was a new part, not a carry-over part, but it appeared to him that it was also a carry-over part. 916 He compared the GUI documents for the DIR8000 as at 18 December 2015 and for the HAU8000 as at 5 April 2017 and they appeared to him to be almost identical. 917 It is convenient now to say something about Lee's evidence, although in my view his evidence was, generally speaking, unreliable. 918 Now the evidence of Lee is that the HAU8000 was not designed by reference to the design of the DIR8000 and did not build on any of the development work undertaken in relation to the DIR8000. But the following may be noted. 919 On 18 November 2016, Hanhwa prepared a quotation to Directed for the cost of the manufacture of the tooling to manufacture the DIR8000 and for the supply price for the DIR8000 and its accessories. On the same day, Hanhwa prepared a quotation for the supply of the HAU8000 and accessories directly to IAL and what was described as being supplied was identical to the quotation to Directed, but at a lower unit price. 920 On the same day, Hanhwa prepared two MFLs: the first being for the DIR8000 for Directed, the second being for the HAU8000 for IAL. The two MFLs are identical except: (a) the model names for the units; (b) the references to Directed have been removed and replaced with Hanhwa; (c) the DIR8000 lists "DUAL LINK" phone mirror functionality, whilst the HAU8000 lists "CAR LINK" phone mirror functionality; and (d) the HAU8000 is listed as having air gesture functionality. 921 In February 2017, Hanhwa Korea had developed final samples of the DIR8000 together with the 2 Channel DVR, the wireless charger and digital camera ready to show IAL and a sample ready to send to NavNGo for map porting. This was a sample of the DIR8000 and not the HAU8000. The design and the development of the HAU8000 did not commence until early March 2017. 922 By 30 March 2017, Hanhwa Korea had samples of the HAU8000, wireless charger, GPS antenna, 4 channel digital control box, CAM9052 camera and SD cable. This means that within around 3 weeks of the date on which Lee asserts that the design and development of the HAU8000 commenced, Hanhwa had prototype samples of the HAU8000 and some of its accessories. In Girgis' opinion, if the design and development of the HAU8000 had not built on the design and development of the DIR8000 that would not have been possible. 923 Lee asserts that the design of the HAU8000 was made by reference to an AV unit called the NSV7000, not the DIR8000, and that the NSV7000 was a product which Hanhwa commenced design of in 2013. Lee has exhibited some renderings from 2013 of the NSV7000 which appear to be for installation in a Toyota Landcruiser vehicle. Apart from the fact that the NSV7000 has an AV screen raised from the dash, the design, shape, configuration and appearance of the NSV7000 does not appear to Girgis to bear any similarity to the design of the HAU8000. 924 The images of the NSV7000 appear to show that the chassis was a single DIN size and the moulded screen was placed immediately above and not out from the main chassis. Furthermore, the buttons appear on the face of the screen with the USB and SD card slots on the side of the screen. By comparison, the HAU8000 has a double DIN chassis and a screen which rises up and protrudes out from the main chassis. On the HAU8000, the buttons, auxiliary connector and USB connector are on the bottom half of the main double DIN chassis, not the protruding screen. 925 Lee was not suggesting that the specification, software, GUI or accessories for the HAU8000 were derived from the corresponding items for the NSV7000. However, the specifications for the NSV7000 bear no resemblance to the specifications for the HAU8000. 926 In Girgis' opinion, the design of the HAU8000 did not derive from the design of the NSV7000, but rather continued from the design of the DIR8000. Indeed, the evidence indicates that the specifications for the NSV7000 bear little resemblance to the specifications for the HAU8000. 927 Lee asserts that the hardware and software for the HAU8000 was made by reference to an AV unit called the 13.3 inch Super Audio, not the DIR8000, and that Hanhwa commenced development of hardware and software for the 13.3 inch Super Audio in July to August 2016. The 13.3 inch Super Audio appears to be for installation in a 2016 Toyota Landcruiser vehicle. 928 Lee has exhibited photographs of the front of the 13.3 inch Super Audio and the rear of the chassis for the 13.3 inch Super Audio. Lee was not suggesting that the front design of the HAU8000 was in any way derived from the 13.3 inch Super Audio, but they appear to be different. In terms of the AV unit chassis, the 13.3 inch Super Audio appears to have two chassis components: a double DIN unit which sits behind the screen at the top and a double DIN unit that sits at a distance at the bottom of the screen. The lower chassis appears to house the DVD player and controls for the unit, as well as a fan, AC and hazard lights for the vehicle. The upper chassis appears to house the components for the AV unit itself. Looking at the configuration and layout of the connectors on the rear of the upper chassis, these do not appear to bear any similarity to the rear view and connector configuration and layout for the HAU8000. Looking at each row of connectors gives an idea of how the connectors would be arranged along the edge of each PCB layer housed within the unit. Comparing each row of connectors and the placement of the fan, it is clear that the PCB design for the HAU8000 and the 13.3 inch Super Audio would be very different. 929 Girgis was provided with a connection diagram for the 13.3 inch Super Audio which records that the accessories, input and outputs for this AV unit were very different from the HAU8000. This is to be expected given that the unit was designed for installation in a different make and model vehicle. For example, the 13.3 inch Super Audio had inputs and outputs for Toyota vehicle functions such as mood lighting, AC, hazard lights, and door sensors. All of these differences would necessarily have resulted in a different hardware design. 930 Lee does not exhibit any screenshots of the 13.3 inch Super Audio in operation which would have enabled Girgis to compare the software functionality and GUI of the AV unit as compared to the HAU8000. Lee lists the specifications for the 13.3 inch Super Audio which records that the unit had the Android 5.1.1 operating system and shares many software features with the HAU8000 (and indeed the DIR8000), but this information alone does not demonstrate whether or not the software from one unit was derived from the other. 931 Lee asserts that the ADAS was incompatible with the DIR8000. But an ADAS is specified in the MFLs for the DIR8000. Further, the Mobileye was identified as being a suitable ADAS for the DIR8000. Further, given this was a product designed to operate on commercial vehicles and integrate with an AV unit, it would be surprising if an appropriate connector or harness could not have been designed for it to connect to the DIR8000, even if that issue had not yet been resolved by February 2017. 932 Let me make some general observations regarding the identification of DIR8000 units referred to by Lee. 933 Now Girgis was not provided with any of the sample DIR8000 units which were sent by Hanhwa Korea to Directed and therefore has not been able to verify whether Lee's depictions of the DIR8000 are of early samples of the AV unit or of later samples or whether they were depictions of the unit as its design stage was reached at around March 2017. I should note that Lee asserts that around March 2017, Hanhwa Korea's design work with Directed ceased and the design of a new AV unit called the HAU8000 commenced. 934 Let me deal with the physical comparisons made by Lee and Girgis' responses which I accept. 935 As to the front view, Lee compared the front view of the DIR8000 and the HAU8000 and identifies some differences. Now I should note upfront that Girgis' view was that the only difference in the front view is the air gesture sensor. 936 Lee records that the HAU8000 had a "Home" button and "SEL.EQ" label on the left side rotary knob which the DIR8000 did not. Now Girgis was provided with an open and close list dated November 2015 which was a working document prepared by Directed and provided to Hanhwa Korea detailing the results of Directed's testing of a prototype DIR8000 and requirements for changes to the specification of the DIR8000 in relation to software, hardware and the GUI. The November open and close list also includes comments inserted by Hanhwa Korea noting its response to the comments by Directed. The "Home" button identified by Lee as a new feature in the HAU8000 appears to have been a feature requested by Directed in the November open and close list. The Hanhwa response column states "will modify". Further, in relation to the "SEL.EQ" label on the left side rotary knob, Hanhwa Korea's MFL comparison document shows the identical rotary knob labels for the DIR8000 and the HAU8000. 937 As to the rear view, Lee compared the rear view of the DIR8000 and the HAU8000. But the rear view of the AV unit he has included appears to be the rear view of the DAVE unit. 938 Girgis noted that the rear of the DIR8000 looks different to the rear view of the DAVE unit. He therefore assumed that Lee was including different images of different prototype DIR8000s at different stages of development. He had no way of verifying what the rear view of the DIR8000 was as at the last stage of its development, which was around March 2017. 939 Further, Lee's evidence that the images he has reproduced accurately reflect the rear view of the DIR8000 as at the late stage of its development appears to be inconsistent with the following evidence. 940 First, Lee gave evidence that in July 2015 Hanhwa Korea had caused to be manufactured and paid for the tooling for DIR8000 and that they wanted to use the same tooling to manufacture the HAU8000. There are several references in Lee's evidence to the fact that this tooling included tooling for the chassis and backend of the AV unit. 941 Second, Lee gave evidence that Hanhwa Korea's designers were instructed to re-use the tooling manufactured for the DIR8000 to manufacture the HAU8000. 942 Third, all of the MFLs for the DIR8000 record that the DIR8000 would have an external SD card reader as opposed to a SD card slot at the front, as was the case for the DIR6200. Therefore, the DIR8000 needed to have a connection socket at the rear of the unit where the external SD card reader could connect. The rear of the DIR8000 as depicted by Lee does not include such a connection socket as can be seen in the rear of the HAU8000. 943 Fourth, the bill of materials for the DIR8000 as at 15 December 2015, which appears to have been by Hanhwa Korea, lists a 4 channel quad control box and associated components, indicating that the DIR8000 would have the ability to connect 4 analog cameras via a 4 channel quad control box. The rear of the DIR8000 as depicted by Lee does not include such the connection socket as can be seen in the rear of the HAU8000 for the connection of the 4 channel quad control box. 944 Fifth, the DIR8000 was to have a digital camera, a wireless charger and ADAS. The rear of the DIR8000 as depicted by Lee appears the same as the rear of the DIR6200. Girgis reviewed the Isuzu harness drawings for the DIR6200 and the rear of that unit does not have the number and type of connectors that would be required to connect an additional digital camera, wireless charger or ADAS to the unit. He therefore considered that the DIR8000 as depicted by Lee would not allow the connection of those accessories. 945 As to the side views, the side views of the AV units depicted by Lee purported to compare the side views of the DIR8000 and the HAU8000. However, the side views of the AV unit he has included appeared to Girgis to be the side views of the DAVE unit. 946 The depiction of the DIR8000 is missing the same kind of brackets shown for both the DIR6200 and HAU8000, which screw into the sides of the AV unit chassis to enable the unit to be installed into an Isuzu vehicle. The way in which the DIR8000 is depicted without brackets whereas the HAU8000 is shown with brackets does not enable a fair side-by-side comparison. 947 Girgis could not verify whether these were the side views of the working samples of the DIR8000 which were sent to Directed, but he did not consider that these were in fact side views of those samples. The evidence of Lee and other employees of Hanhwa Korea was that for the HAU8000 they wanted to use the same tooling that had been manufactured for the DIR8000. There are several references to the fact that this tooling included tooling for the chassis and backend of the AV unit. Further, designers were instructed to re-use that tooling. 948 As to the top view, the top view of the AV units depicted by Lee compares the top views of the DIR8000 and the HAU8000. However, the top view of the AV unit he has included appeared to Girgis to be the top view of the DAVE unit. 949 Now the way in which the DIR8000 is depicted without the square shaped guide for the GPS antenna, whereas the HAU8000 is shown with that GPS antenna guide, does not enable a fair side-by-side comparison. The DIR8000 was to have the same GPS antenna as the HAU8000. The DIR6200 also had the same square shaped GPS antenna guide in the same position as the HAU8000. 950 Girgis could not verify whether this was the top view of the working samples of the DIR8000 which were sent to Directed, but did not believe that this is in fact the top view of those samples. Lee's evidence is that for the HAU8000 they wanted to use the same tooling that had been manufactured for the DIR8000. This tooling included tooling for the chassis and backend of the AV unit. Further, Lee's evidence was that designers were instructed to re-use that tooling. 951 As to the CPU, Lee's evidence was that the prototypes of the DIR8000 used a Samsung Exynos 4412 CPU whereas the HAU8000 used a Nexell S5P6818 CPU. Lee said that the Samsung CPU had an end of life of which Hanhwa was advised on or around 21 May 2015. Further, Han gave evidence that this change resulted in very significant changes to the hardware and the software between the DIR8000 and the HAU8000. 952 Now Girgis had been provided with a findings report based on the teardown of the prototype DIR8000 and list of requirements for the DIR8000 prepared by an electrical engineer employed by Directed in November 2015 which was provided to Hanhwa Korea. He was also provided with the same document with Hanhwa Korea's response which was modified by Lee on 9 December 2015, which was provided to Directed. 953 These documents record that in November 2015 Hanhwa Korea advised Directed that the CPU would be changed from a Samsung Exynos 4412 Quad-core CPU to the Nexell S5P6818. 954 The DIR8000 December 2015 bill of materials records that the CPU would be the Nexell S5P6818. 955 Girgis noted that in the MFLs for the DIR8000 as at December 2016 specified an octa-core CPU for the DIR8000. He reviewed the specifications for the Samsung Exynos 4412 CPU and the Nexell S5P6818 on the respective manufacturers' websites which list the Samsung product as being a quad-core CPU and the Nexell product as an octa-core CPU. This further confirms that the CPU for the DIR8000 from December 2015 was specified to have the Nexell S5P6818, which is an octa-core CPU. 956 Further, a comparison table which was prepared by Hanhwa for IAL dated April 2017 comparing the DIR8000 to the HAU8000 records that both units had the S5P6818 CPU. 957 Girgis was not able to ascertain whether any of the subsequent sample AV units which were sent by Hanhwa Korea to Directed contained the Nexell S5P6818. 958 Further, as to the operating system, although Lee's exhibit KL-11 records that the DIR8000 used Android Automotive version 4.1.2 as its operating system whereas the HAU8000 used Android Automotive version 5.1.1, this is inconsistent with the contemporaneous documents that Girgis reviewed. Hanhwa Korea's MFL comparison document recorded that the DIR8000 and HAU8000 used the identical operating system being the Android OS Automotive 5.0, but the CPUs differed. 959 Furthermore, the various MFLs for the LM18I record that it used version 5.0 or version 5.1.1. Girgis compared the LM18I with the HAU8000 and identified that the operating system differed (version 5.1.1 compared to version 5.0). Based on the information contained in exhibit KL-11, it now appears that the HAU8000 used Android Automotive 5.1.1. In light of this new information, Girgis concluded that the operating systems for the HAU8000 and LM18I were identical. In any event, the difference in operating system versions reflects the evolution of the Android Automotive operating system as updated by the software publisher Google from time to time. Upgrading from version 5.0 to 5.1.1 could be simply performed with a software update. 960 Further, Lee in his comparison table records that the HAU8000 had "Open JDK" whereas the DIR8000 had "Sun Microsystems JDK". "JDK" is an abbreviation for Java Development Kit. Girgis checked the release notes of Android Automotive 5.0 and it contains Open JDK. "Open JDK" and "Sun Microsystems JDK" provide the same software functionality. "Open JDK" is simply a more recent release version of the Java Development Kit. 961 As to Bluetooth functionality, Girgis observed that the HAU8000 had an SMS function whereby whenever a text message was received on a phone connected via Bluetooth to the AV unit, the text message could be displayed, whereas the DIR8000 did not. However, it now appears that the DIR8000 had this same feature. 962 As to the APP (air pulse pressure) aspect, Lee in his comparison table under the heading "APP" records that the HAU8000 had "CYPRESS COMPILER" whereas the DIR8000 did not. Cypress Compiler is a software component used to provide air gesture functionality. This is consistent with Girgis' evidence that this feature would have been achieved by installation of relevant software. 963 As to music and movie software, Lee in his comparison table records that the HAU8000 had "Android Player" and "Nexcell Player" whereas the DIR8000 had "Dice Player". Girgis checked the release notes of Android Automotive 5.0 and the Nexell S5P6818 CPU and if, as specified the DIR8000 had included that CPU and operating system, the DIR8000 would have also come packaged with Android Player. 964 As to the navigation button, Lee in his comparison table records that the HAU8000 had an "Android Framework Customized Function Menu/Home/Back Button" which the DIR8000 did not. The "Android Framework Customized Function Menu/Home/Back Button" referred to by Lee appears to have been a feature requested by Directed in the November open and close list. 965 As to the "Quick Rear", Lee in his comparison table records that for the HAU8000, "Quick Rear" is specified as "CPU QUICK Rear (Kernel S/W Management)" whereas the DIR8000 is listed as having "SCALER". There is insufficient detail to understand exactly what is meant by this information, but it may relate to the software used for the reverse camera functionality. The November open and close list referred to earlier includes a note by Directed dated 26 October 2015 that "cameras cannot be viewed until after the reverse trigger has been activated. After the trigger has been activated then the cameras can be viewed". The Hanhwa response column notes "fixed", which suggests that there was a software change relating to the reverse camera functionality that was implemented after the DIR8000 prototype was provided to Directed. 966 As to the operating temperature, when Girgis reviewed the MFLs for the DIR8000 and the HAU8000, he noted a potential difference between the operating temperature range required for the AV units, but what he identified as a potential difference between the units based on the MFLs was not a difference in fact. 967 Further, Lee in his comparison table under the heading "TEMPERATURE" records that the HAU8000 had "Automatic shutdown by Temperature Detection" whereas the DIR8000 did not. Girgis had no way of verifying whether or not this feature was included in any of the samples of the DIR8000. This feature would have been achieved by installation of relevant software. This is a fairly common feature of electronic equipment installed in trucks and motor vehicles. 968 Further, Lee in his comparison table under the heading "DUAL ZONE" records that the HAU8000 had "Movie (TV Out - output implementation)" whereas the DIR8000 did not. It is unclear what this new feature is. Girgis could not verify whether this feature was included in any of the samples of the DIR8000. 969 As to phone mirroring, Lee in his comparison table records that the HAU8000 had "IOS/CARLINK (ONCAR)" whereas the DIR8000 had "IOS/MIRACAST". The iOS implementation of phone mirroring for both devices is the same. The terms "Miracast" and "Carlink" refer to the method of implementing phone mirroring functionality for smartphones running on the Google Android operating system. The term "Miracast" was used by Google as its umbrella name for device screen mirroring software within Android. As screen mirroring capabilities evolved, Google began referring to its domestic device screen mirroring as Chromecast and its automotive screen mirroring functionality as "Carlink". So, the reference to Carlink simply represents the evolution of screen mirroring within the Android operating system. OnCar is a third party automotive app for Android devices which is used to achieve phone mirroring. OnCar support would have been achieved by installation of relevant software. 970 Further, Lee in his comparison table under the heading DVFS (dynamic voltage and frequency scaling) records that the HAU8000 had "CPU clock adjustment as per temperature" whereas the DIR8000 did not. DVFS is a widely used technique to manage CPU power consumption by slowing down the CPU according to the demand of the applications in operation and to protect the CPU from overheating. Girgis could not verify whether this feature was included in any of the samples of the DIR8000. He reviewed the manufacturer's website for the Nexell S5P6818 and DVFS was a feature that was supported by that CPU. The Samsung Exynos 4412 CPU also supported DVFS. The feature therefore could have been enabled on the DIR8000 through software, irrespective of which CPU as installed. 971 Further, as to the charger kit, Girgis noted that the HAU8000 had a USB quick charger kit but he was not able to ascertain whether the DIR8000 had such an accessory. It appears that the AV unit being developed as at 5 January 2017, referred to as the "HAU8000 (NEW ISUZU 8" DAVE)", had a USB quick charger kit. This document also records that it was resolved to add a gesture sensor and to add a USB charging port. 972 Let me say something about inputs for accessories. 973 Lee in his comparison table under the headings "CAMERA", "DVR", "ADAS", "WIRELESS CHARGER" and "UPGRADE" records that the HAU8000 had additional hardware connections for and software control over these accessories, whereas the DIR8000 did not. Girgis could not verify whether these features was included in any of the samples of the DIR8000. However, the DIR8000 was designed and specified to have a digital camera, DVR, a wireless charger, ADAS, to upgrade software via both an external SD card reader and USB. Therefore, the DIR8000 would likely have had such additional hardware connections for and software control over these accessories. 974 Lee compared the PCB layouts and photographs for a prototype DIR8000 and the HAU8000. Girgis did not know which of the DIR8000 prototypes supplied to Directed Lee was comparing. Lee did not exhibit any of the prototypes for the DIR8000 or HAU8000 and so Girgis could not verify whether these were the PCBs in all of the prototypes of the DIR8000 or in the HAU8000. 975 However, it appears that the circuit boards shown by Lee likely represent the DIR8000 at an early stage of development. 976 In Girgis' experience in developing new electronic products, even small changes in specification and requirements, software and peripheral devices, depending on the type of change, may require changes to PCB design. 977 It appears that during the design process for the DIR8000 a number of different samples were provided to Directed in 2015 and 2016 and on each occasion Directed provided feedback to Hanhwa on changes that would be required. 978 It is likely that during this design evolution and consultation process and provision of revised working samples there were changes to the PCB design. 979 For example a DIR8000 video depicts a Samsung Exynos 4412 CPU, but this must be of a PCB from an earlier prototype or a different product. As Girgis observed, Hanhwa Korea was advised on or around 21 May 2015 that the Samsung Exynos 4412 CPU had an end-of-life and new orders for the product would not be accepted after 31 March 2016. Further, Hanhwa Korea advised Directed on 9 December 2015 that the CPU for the DIR8000 would be changed from a Samsung Exynos 4412 quad-core CPU to the Nexell S5P6818. This is reflected in the DIR8000 December 2015 bill of materials which records that the CPU would be the Nexell S5P6818. Further, from at least December 2015, the DIR8000 was therefore specified as having a Nexell S5P6818 CPU. 980 The change in CPU from the Samsung to Nexell unit would have required at least some changes to the PCB design. The Nexell CPU is also called the Samsung S5P6818 and it is classified as a "Samsung related" CPU on the Nexell website. The Samsung and Nexell CPUs are a type of CPU called a "System on Chip" which incorporates the CPU, multimedia, camera, display interface, memory, system functions and peripherals together on a single PCB. This PCB then attaches to the main PCB of the AV unit using a standard connector. It was unlikely that the main PCB would require a complete redesign. 981 In the November open and close list referred to earlier, Directed identified a number of issues which required circuit design changes to address. For example, in the DIR8000 hardware worksheet and the DIR8000 software worksheet, Directed noted "sound output is out of phase" and "must modify PCB" and Hanhwa confirmed that it would modify the PCB. Further, in the DIR8000 software worksheet, Directed noted "New Sample 2A(Received 30/10/15) is still Out of Phase!! Only harness has been modified" and "PCB must be modified!!!". 982 Further, the DIR8000 December 2015 bill of materials records that the following PCB part numbers would be used in the DIR8000. 983 First, the DIR8000 part described as "AUDIO PCB (MP0.1)" has the part number "HEPC0101020". This is the same part number printed onto the "Power PCB" for the HAU8000 depicted by Lee. The DIR8000 PCB part number shown in the DIR8000 December 2015 bill of materials is also different from the "Audio PCB" asserted by Lee to be from the DIR8000. On the DIR8000 Audio PCB Lee pictured was printed the part number "DIR-6500_AUDIO_MP0.2 (150823)". It can be inferred from the reference to DIR6500 that this was from an earlier prototype when the unit was to have a 6.5 inch screen. Given that it has the same part number, the DIR8000 Audio PCB is identical to the HAU8000 PCB described by Lee as the "Power PCB". 984 Second, the DIR8000 part described as "DIR-8000 VIDEO PCB (MP0.1)" has the part number "HEPC0101010". This is the same part number printed onto the "Main PCB" for the HAU8000 depicted by Lee. On the photograph of the "Video PCB" asserted by Lee to be from the DIR8000, Girgis was unable to make out any part numbers printed onto the PCB. But given that the "Video PCB" specified for the DIR8000 as at December 2015 has the same part number as the HAU8000 described by Lee as the "Main PCB", Girgis was of the view that from December 2015 those PCBs must be identical, and the "Video PCB" for the DIR8000 depicted by Lee must be from an earlier prototype or a different product. 985 Third, the DIR8000 part described as "DIR-8000 DISPLAY PCB (MP0.1)" has the part number "HEPC0101030". This is the same part number printed onto the "Display PCB" for the HAU8000 depicted by Lee. On the photograph of the "Display PCB" asserted by Lee to be from the DIR8000, Girgis was unable to make out any part numbers printed onto the PCB. However, given the "Display PCB" specified for the DIR8000 as at December 2015 has the same part number as the HAU8000 described by Lee as the "Display PCB", from December 2015 those PCBs must be identical. This is not surprising given that the HAU8000 had the same 8 inch display as the DIR8000 and the "Display PCB" for the DIR8000 depicted by Lee must be from an earlier prototype or a different product that used a different display, such as the DAVE or the earlier prototype. 986 Further, having regard to the similarities in specifications, features, GUI and accessories for the DIR8000 and HAU8000 and the stage of development reached by the 21 July 2016 sample, it is unlikely that the PCB and circuit componentry design for that version of the DIR8000 could differ as significantly from the HAU8000 as depicted in Lee's comparison photos. The identical part numbers for the relevant PCBs in the DIR8000 and HAU8000 indicate that the PCBs were identical in both units. 987 Let me say something about the schematic circuit diagrams. 988 Lee compared schematic circuit diagrams for a prototype DIR8000 and the HAU8000. But Girgis did not know which of the prototypes supplied to Directed Lee was comparing. Lee did not exhibit any of the prototypes for the DIR8000 or HAU8000 and so Girgis could not verify whether these were the circuit diagrams in all of the prototypes of the DIR8000 or in the HAU8000. However, it appeared to Girgis that the schematic circuit diagrams shown by Lee likely represent an early stage of development of the DIR8000. 989 Having regard to the similarities in specifications, features, GUI and accessories for the DIR8000 and HAU8000 and the stage of development reached by the 21 July 2016 sample, it is unlikely that the schematic circuit diagrams for that version of the DIR8000 could differ as much from the HAU8000 as depicted in Lee's comparison. 990 Let me say something about the GUI. 991 Lee identified some changes to the GUI between the DIR8000 and the HAU8000. Contrastingly, Girgis' evidence was that he had compared the GUI for the DIR8000 at 18 December 2015 to the GUI for the HAU8000 at 5 April 2017 and they appeared to be virtually identical. 992 I should note that Girgis undertook the task of compiling a document which included: (a) Lee's comparisons of the GUIs of the DIR8000 and the HAU8000; (b) other relevant comparisons concerning the GUI for the DIR8000 as at 18 December 2015, the GUI for the HAU8000 as at 5 April 2017 and the GUI for the HAU8000 as at 17 October 2017. 993 It is apparent from Girgis' analysis, which I accept, that the page from the DIR8000 main screen that Lee included is not the page that was included in the GUI for the DIR8000 as at 18 December 2015. Indeed, the relevant page in the GUI for the DIR8000 is virtually identical to the relevant page for the HAU8000. The "Home" button identified by Lee as a new feature in the HAU8000 appears to have been a feature requested by Directed in the November 2015 open and close list. The Hanhwa response column states "will modify". The contents of that document appear to reveal that the differences in appearance and features in the HAU8000 identified by Lee were requested by Directed in November 2015 and then implemented as at 18 December 2015. It therefore appeared to Girgis that the comparison Lee was making was to an earlier version of the GUI for the DIR8000. Further, the main page for the HAU8000 that Lee included in his comparison was slightly different than what was in the GUI for the HAU8000 as at 5 April 2017. It appears that in the screen that Lee reproduced an ISUZU logo appears in place of the new message icon. 994 Lee compared the multimedia menu from the HAU8000 to the safety menu for the DIR8000. But in Girgis' opinion, this was not a useful comparison. The multimedia menu in the GUI for the DIR8000 as at 18 December 2015 is identical to the multimedia menu in the GUI for the HAU8000 as at 5 April 2017, save that the "Dual Link" icon has been replaced with the "Car Link" icon. The corresponding page which Lee has included in his comparison for the final HAU8000 GUI is the same as for the DIR8000 save that the iPod and Dual Link icons have been removed and the radio app icon has been moved from the main menu to the multimedia menu; the radio icon also appears in the main menu screen for the HAU8000. In these versions of the GUI, the size of the icons between the DIR8000 and HAU8000 multimedia menus are identical. As recorded in the November open and close list in the user interface worksheet, larger icons were a feature requested by Directed. The HAU8000 icons have more rounded corners. However, the corners of the icons in the HAU8000 GUI as at 5 April 2017 and the DIR8000 GUI as at 18 December 2015 are identical. The Hanhwa company presentation dated 9 August 2017 records that the icons had the same design as the DIR8000 and did not have the more rounded corners. 995 Lee compared the application menu from the HAU8000 to the multimedia menu for the DIR8000. In Girgis' opinion, this was not a useful comparison. The application menu in the GUI for the DIR8000 as at 18 December 2015 is identical to the application menu in the GUI for the HAU8000 as at 5 April 2017. The corresponding application page which Lee has included in his comparison for the final HAU8000 GUI is the same as for the DIR8000 save that 3 icons have been removed, being internet, DVR, and telematics. The removal of the DVR icon is a consequence of the fact that by the time the HAU8000 was supplied it was supplied without a DVR. The telematics icon has been hidden because at the time of supply Hanhwa was not supplying the unit to be connected to a telematics unit, but it was present on 5 April 2017. Further, the internet icon is removed however it is present on 5 April 2017. Further, when Lee stated that the HAU8000 had additional functions such as calendar, memo, calculator and PDF reader which the DIR8000 did not have, this was incorrect by reference to the application menu GUI for the DIR8000 as at 18 December 2015. Girgis made similar comments concerning icon size and corner appearance. 996 Lee compared the setup menu for the HAU8000 to the setup menu for the DIR8000. The setup menu in the GUI for the DIR8000 as at 18 December 2015 is identical to the setup menu in the GUI for the HAU8000 as at 5 April 2017, save for the addition of one icon for TPMS. The corresponding application page which Lee included in his comparison for the final HAU8000 GUI is the same as for the HAU8000 as at 5 April 2017 save that a "Manual" icon has been added. Girgis made similar comments regarding icon size and corner appearance. 997 Let me now address the telematics capability of the HAU8000 unit. 998 Now Lee says that the HAU8000 was never designed to communicate with any telematics unit. But Girgis made the following points which I largely accept, at least in terms of the capacity to so communicate. 999 First, the DIR8000 MFL specified that it was capable of operating with a telematics unit. 1000 Second, the HAU8000 MFL indicated that it was capable of integrating with a third party supplier's telematics unit and that this feature was signed off by both IAL and Hanhwa on 8 August 2017. 1001 Third, the GUI for the HAU8000 prepared by Hanhwa as at 5 April 2017 shows a telematics icon on the application screen, shows a new message icon indicating telematics messaging functionality, shows a new telematics message having been received, and shows screenshots for driver identification, telematics messages, telematics menu and message inbox screens, all being telematics functionality. 1002 Fourth, as at 6 April 2017, employees of Hanhwa Korea were exchanging emails under the subject "Here are HAU-8000 Telematics Program and User Manual". Further, there was attached a Zip file titled "HAU-8000_Telematics.zip" which appeared to include the telematics software, user manual and a video clip. In an email from Minsoo Kim, it appears that he was advising that he would deliver to Sungmin Bin a communication cable capable of connecting the HAU8000 (RS485 communication) to whatever telematics unit it was proposed it be connected to. 1003 Fifth, a Hanhwa work report for the week commencing 15 May 2017 includes a reference to work performed in the prior week being "HAU8000 Shield CAN library modification". That indicates that work was being undertaken to update the HAU8000 software to potentially improve telematics functionality by providing support for additional CAN information. 1004 Sixth, in the Hanhwa company presentation dated 9 August 2017, there is a presentation summary of the HAU8000 which records that it had "telematics (CAN BUS) on ready". In the image of the unit there is a telematics icon and there is also shown the new message popup in the top right hand corner, which indicate that the unit as at that date was tested and operational with telematics capability. 1005 Seventh, a comparison table comparing the HAU8000 to the DIR8000 which was prepared by Hanhwa for IAL dated April 2017 records that both units would have telematics functionality, they would communicate to the HAU8000 via RS485 chip communication, and both telematics systems would provide GPS satellite tracking via SMS, vehicle immobilisation via SMS, vehicle tracking from any computer using the internet, and would use prepaid SIM cards. 1006 Eighth, the outline drawing for the HAU8000 dated 10 May 2017 drawn by W Kim and approved by JH Han describes among other things the pinouts for the various connectors at the rear of the HAU8000. For the 32 pin input connector in the top left hand corner of the diagram (identified as item 22 in the drawing), pins numbered 24 to 26 are listed as RS-485 connectors. This would enable an output from a telematics unit to connect to the HAU8000. 1007 Ninth, the accessory layout drawing for the HAU8000 dated 29 August 2017 drawn by W Kim, checked by JH Han and approved by Lee shows an RS-485 plug in the wiring harness for the 32-pin input connector, which is consistent with item 22 in the outline drawing referred to above. 1008 Let me now address some other matters. 1009 First, Lee asserts that both the DIR8000 and the HAU8000 were "children" of the NSV7000. 1010 Now according to Girgis, it appears that versions of the NSV7000 in 2013 incorporated the Exynos 4412 CPU and the Samsung CLM7700 CPU. 1011 Now Lee gave evidence that the Exynos 4412 CPU was reaching its end of life and that orders would not be accepted after 31 March 2016. Further, Lee gave evidence that the DIR6200 CPU, being the Samsung CLM7700, also had an end of life issue in 2017. 1012 But this is why, according to the material that Girgis reviewed, from about late 2015 Hanhwa was looking at implementing the Nexell S5P6818 CPU into the DIR8000, and subsequently into the HAU8000. 1013 So in Girgis' opinion the design of the HAU8000 did not derive from the design of the NSV7000, but rather continued from the design of the DIR8000. Girgis' evidence was to the effect that the DIR8000 was simply given a new part number due to the decision that Hanhwa would supply IAL directly. I accept that evidence. 1014 Second, and as I have touched on elsewhere, Lee in his second affidavit changed his evidence as to the design history of the HAU8000 and accepted that his timeline in exhibit KL-9 was incorrect. Lee's changed evidence asserted that the design of the HAU8000 commenced in September 2016, the mechanical design of the HAU8000 commenced in late November 2016, the hardware design of the HAU8000 commenced sometime in November or December 2016 and the software design of the HAU8000 commenced in April 2017. 1015 Lee asserted that there was only a prototype developed as at November 2016. Lee also asserted that no work was done in relation to developing a unit with the Nexell S5P6818 CPU or the Android 5.0 operating system until March 2017. 1016 But the documentary evidence as at 30 November 2016 makes plain that Palone was doing field testing on a unit called the HAU8000 in November/December 2016 which was described as "the last sample". Further, at the time Lee wanted as many debugging tests done as possible on that sample because he was going to submit it to IAL for approval, together with the dual-channel DVR, the wireless charger, the TPMS and the cameras, including the digital camera, all fitted into a truck. Further, Lee was intending to present that sample unit and the accessories fitted to a truck to all the Australian Isuzu dealers. Further, Lee contemplated that full scale production would commence in April 2017. 1017 Moreover, it is unlikely that Hanhwa would show a sample unit and the accessories fitted to a truck to all the Australian Isuzu dealers which was not built with the tooling it had paid for the DIR8000 and installed with the CPU and the operating system and other software that Hanhwa was proposing to supply to IAL. It would seem that by November/December 2016 the hardware and software development of the HAU8000 with the Nexell S5P6818 CPU and the Android 5.0 operating system was substantially developed and nearly completed. 1018 Further, in early January 2017, Hanhwa had a GUI prepared to show IAL for the HAU8000. Why have a GUI to present to IAL on the HAU8000 if Hanhwa had not already completed work on the hardware and software development of the HAU8000 with the Nexell S5P6818 CPU and the Android 5.0 operating system? Otherwise, if Hanhwa were to change the CPU or operating system, that would then likely require the GUI to change substantially? Further, as already noted, this version of the GUI for the HAU8000 is identical to a version of the GUI for the DIR8000. 1019 Further, by 31 March 2017, working samples of the HAU8000, wireless charger, TPMS, cameras and GPS antenna were brought to Australia by Lee. The accessories for the HAU8000 v the accessories for the DIR8000 and DIR6200 1020 The accessories for the HAU8000 were significantly the same as were specified and designed for supply with the DIR8000. The specifications and proposed functionality of the parking sensors, 4 analog cameras, external SD card reader, the TPMS, the external microphone, wireless charger, DVR, ADAS, GPS antenna, telematics unit tracking system, front iPod cable, DRLs, front 3-way auxiliary cable and many of the harnesses were the same. 1021 Further, the HAU8000 was supplied to IAL with 4 analog cameras which were CAM9052, being cameras supplied by Directed to IAL for use with the DIR6200, and specified to be supplied with the DIR8000. The HAU8000 was also supplied to IAL with a digital camera. However, the DIR8000 was always specified to be supplied with a digital camera given model number CAM9100D. 1022 But I do accept that there were less significant differences between the accessories for the HAU8000 and the accessories for the DIR8000. 1023 Let me now say something concerning the DIR6200. 1024 The following accessories for the HAU8000 were the same as were supplied with the DIR6200 and were carryover parts from the DIR6200: parking sensors, 4 analog cameras, TPMS, GPS antenna, front iPod cable, daytime running lights, front 3-way auxiliary cable and many of the harnesses, including the 5 camera extension harnesses. 1025 Now Lee sought to make a comparison of the accessories to the DIR6200 compared to the HAU8000. The accessories he compared were inter-alia the cameras, camera extension harnesses, rear parking sensor, TPMS, steering wheel remote control and other wiring harnesses. Let me address some of these aspects. 1026 First, Lee's evidence was to the effect that the DIR6200 cameras were model numbers CAM8000, CAM9000 and CAM9051, all of which were analog. He contrasted this with the HAU8000. 1027 Based on the documents Girgis reviewed, he concluded that a camera supplied by Directed to IAL for use with the DIR6200 was the CAM9052 camera, which is an analog camera. Further, the CAM9052 camera was also proposed to be supplied by Directed for use with the DIR8000. Further, in addition to the CAM9052 camera, an additional camera, being the CAM5000B, was also proposed to be supplied by Directed for use with the DIR8000. Further, the HCAM002 camera was supplied to IAL for use with the HAU8000; HCAM002 was a carryover part from the DIR6200 and therefore this camera was the CAM9052. Further, the HCAM001 was supplied to IAL for use with the HAU8000; CAM9052D was a new part and not a carryover part from the DIR6200; the HCAM001 camera was the CAM9052D. 1028 Minutes of a meeting between Hanhwa representatives in relation to the DIR8000 on 21 September 2015 appear to record that the DIR8000 was to have a digital camera given the model number CAM9100D. In a document which appears to have been created on 15 December 2016, it would seem that Hanhwa was intending to supply the CAM9100D to IAL for installation for use in Isuzu N and F series trucks and that another camera Hanhwa was proposing to supply was the CAM9052. 1029 It appears that the analog cameras which Hanhwa was proposing to supply for use with the HAU8000 were CAM9052, which Directed had been supplying with the DIR6200 and also proposed to supply with the DIR8000, and that the digital camera intended to be supplied was the CAM9100D. Girgis also reviewed a Hanhwa document created in 12 November 2016 which under the heading HAU8000 appears to record that the digital camera to be supplied with that unit was the CAM9100D and that the analog camera to be supplied with that unit was the CAM9052. 1030 Further, a DIR8000 model operation check list prepared by Hanhwa Korea dated 12 April 2016 records an item for connection to a digital camera. This indicates that as at April 2016 it was contemplated that the DIR8000 may be supplied with a digital camera. 1031 Further, Girgis was also shown an agenda for a meeting between representatives of Directed and Hanhwa Korea in April 2016. Under the heading "DIR8000" one of the items on the agenda was "digital camera working sample". This also appears to confirm that it was proposed that the DIR8000 would have a digital camera. 1032 Second, Lee's evidence was that there were 5 camera extension harnesses supplied for use with the DIR6200 cameras being 5, 8, 10, 15 and 20 metre harnesses and the HAU8000 was supplied with 5 harnesses of the same length. But as Girgis said, the 5 camera extension harnesses were recorded by Hanhwa as being carryover parts from the DIR6200. 1033 Third, Lee's evidence did not suggest that the design of the parking sensor kit differed between the DIR6200 and HAU8000 but rather that Hanhwa Korea sourced the component parts for the HAU8000 from a different third party. Lee did not provide any drawings, specifications or documentation to demonstrate that there was any change to the design or specification of the parking sensors kit. The specifications for the parking sensors for the DIR8000 and HAU8000 were identical. 1034 Fourth, Lee's evidence did not suggest that the design of the TPMS differed between the DIR6200 and HAU8000 but rather that the main unit harness which included the TPMS wiring had a different connector to the AV unit. Lee did not provide any drawings, specifications or documentation to demonstrate that there was any change to the design or specification of the TPMS kit. By reference to the accessory layout drawings for the HAU8000, the TPMS kit was made up of a number of components: the TPMS sensors fitted onto the tyre valve stems, the TPMS transceiver, a TPMS and ADAS adapter module with interface cables/connectors, the main harness which connects between the adapter module to the AV unit and an optional 5 metre extension harness. Between the TPMS transceiver and AV unit there are 3 wiring connectors or 4 with the optional extension harness. Lee's evidence suggested that only the main AV unit harness connector was different. 1035 Fifth, Lee provided details of the steering wheel remote control for the DIR6200 and the HAU8000. But he did not give any evidence that contradicted Girgis' evidence that the design of the steering wheel remote for the HAU8000 and the DIR8000 were identical. 1036 Sixth, Lee's evidence was that the HAU8000 had a newly designed plastic connector for the main wiring harness to that on the DIR6200 and the prototype DIR8000. Girgis was not able to verify whether this was a change to the main connector which Lee was referring to. Lee did not exhibit any of the prototypes for the DIR8000 or an HAU8000 and so Girgis was not able to verify when this change to the connector was implemented during the course of the development of the prototypes of the DIR8000 or in the HAU8000 development. In the circumstances, Lee's evidence is problematic on this aspect. The HAU8000 unit v the LM18I unit 1037 The LM18I and its accessories comprised the HAU8000 with a 6.2 inch screen and the same accessories. The LM18I is the HAU8000 with cosmetic changes to the fascia, screen size and location of physical control buttons, auxiliary port and USB. 1038 In my view the evidence establishes that the design, hardware and software of the LM18I was derived from the work undertaken in relation to the DIR8000/HAU8000. 1039 Below is a comparison diagram of the front product design view of the HAU8000 vs the LM18I taken from an exhibit to Girgis' evidence in chief: 1040 Below is a comparison diagram of the rear mechanical design view of the HAU8000 vs the LM18I taken from the same exhibit: 1041 Below is a comparison diagram of the rear hardware design view of the HAU8000 vs the LM18I taken from the same exhibit: 1042 Below is a comparison diagram of the front hardware design view of the HAU8000 vs the LM18I taken from the same exhibit: 1043 Below is a comparison diagram of the side hardware design view of the HAU8000 vs the LM18I taken from the same exhibit: 1044 Below is a comparison diagram of the top hardware design view of the HAU8000 vs the LM18I taken from the same exhibit: 1045 In my view, the design, the hardware and the software of the LM18I was derived from the work undertaken in relation to the HAU8000 and they are substantially the same unit, with the same accessories, save that the LM18I has a different size screen, has only one physical knob and the push buttons, auxiliary jack and USB port are in different positions. 1046 The operating systems for the HAU8000 and LM18I were identical. 1047 Further, the line drawings of the chassis of the LM18I and the input and output terminals to connect peripherals, accessories and wiring harnesses, as well as the design, location and layout of the fastening screws, cooling fan, grilles and vents all appear to be identical to the HAU8000, save the TPMS/ADAS wiring harness which appears to be very similar, but there are some changes in the cabling. The design of the left and right hand sides of the chassis of the LM18I, as well as the mounting brackets and screw positions, appear to be identical to the HAU8000. The mounting brackets and screw positions are also the same as the DIR6200. 1048 The signed LM18I MFL included minor changes to the HAU8000. The changes required would be minimal if the earlier work from the HAU8000 was used. Further, Girgis' review of the user interface of the Polstar system operating in the HAU8000 and the LM18I reveals that the vast majority of text and graphics is the same. 1049 Girgis analysed the specification, design and functionality of the LM18I compared with the HAU8000. The only differences that he had been able to identify in the final design, features and specifications of the LM18I compared with the HAU8000 were the following. 1050 First, the LM18I had a 6.2 inch screen with the control and operation buttons placed down the right hand side of the unit. The unit shares the same number and type of push buttons and auxiliary jack and USB port as the HAU8000, save that LM18I has only one physical knob and the push buttons and auxiliary jack and USB port are in different positions. It does not have a CD/DVD insert slot meaning that the LM18I could not play CDs/DVDs. The overall size, layout, positioning, style and depiction of icons on buttons are similar to the size, layout, positioning, style and depiction of icons on buttons of the DIR6200. The icon for the answer call button is the same as the icon used on the DIR6200. This icon is distinct in appearance from icons typically used for answer call buttons. 1051 Second, the LM18I had a more up-to-date version of Android OS Automotive being the 5.1.1 version. This is the same operating system as the HAU8000 but has had newer updates applied. 1052 Girgis' opinion which I accept was that save for the changes to the fascia, screen size and location of physical control buttons and auxiliary port and USB, the final design of the LM18I is the same as the HAU8000. Further, in relation to the accessories, being the GPS antenna, external cameras, blind spot indicator activated side camera, the TPMS, parking sensors, external microphone, wireless charger, ADAS, telematics unit/tracking system, external SD card reader and steering wheel remote, all remain the same as for the HAU8000. 1053 Girgis reviewed the line drawings of the chassis of the LM18I and the input and output terminals to connect peripherals, accessories and wiring harnesses, as well as the design, location and layout of the fastening screws, cooling fan, grilles and vents. These all appeared to be identical to the HAU8000, save the TPMS/ADAS wiring harness which appeared to be similar, but there were some changes in the cabling. The design of the left and right hand sides of the chassis of the LM18I, as well as the mounting brackets and screw positions, appeared to him to be identical to the HAU8000. The mounting brackets and screw positions are also the same as the DIR6200. This is desirable from the perspective of a manufacturer as it avoids having to work out how to ensure that the new unit fits into a given vehicle. Furthermore, it would enable retrofitting the newer equipment into older vehicles which may have previously been fitted with the DIR6200. 1054 I should also say that on 5 June 2019 Girgis inspected a physical working LM18I unit at Directed's premises in Keilor Park together with a solicitor from K&L Gates. 1055 He reviewed the line drawings of the LM18I and verified that the schematics of the rear of the LM18I unit, including the location and type of connectors, the mounting plates/brackets on the side of the LM18I unit and the design of the front screen and accessory ports of the LM18I unit were consistent with the LM18I unit. 1056 He reviewed the graphical user interface design documents for the LM18I and verified that they were consistent with the LM18I unit. But he was unable to explore the TPMS menu or functions, however the LM18I unit has TPMS functionality. Further, he was unable to explore the ADAS menu or functions, however the unit has ADAS functionality. Further, he was unable to verify whether the audio worked as the unit was not connected to a speaker and he was unable to verify whether the radio worked as the unit was not connected. 1057 The properties of the LM18I unit included the operating system Android, an SD card reader/navigation module that was connected, a digital camera that was connected, a GPS receiver that was connected and a cable that Girgis assumed would connect to a telematics unit. 1058 In relation to the navigation software, the LM18I unit utilises version 133EF41 V.3332 of the Polstar software for the LM18I. The unit utilises version 133EE7E of the Navteq.011020 map data for Australia and New Zealand. Further, the navigation application supports the configuration of the type of vehicle in which the navigation has been installed. This is particularly relevant to commercial and heavy vehicles because this data can be used to improve routing within the navigation application. Further, the truck icon highlights the roads on which trucks can travel. This confirms that the heavy vehicle map data has been integrated with the software. 1059 The LM18I unit product label on top of the unit noted that it had a 6.2 inch screen and a 24V system, and supported MP3, WMA, Bluetooth, AM/FM radio, DAB+, auxiliary in, satnav SD, USB, GPS, and a rear view camera. 1060 The warranty label on the LM18I unit was intact and labelled as Hanhwa Australia. The quality control is stamped 2018.07 which indicates that the hardware went through quality control in July 2018. 1061 It appeared to Girgis that the LM18I had a new proposed accessory being a USB quick charger kit. This is an accessory designed to be fitted in an unused button space on an Isuzu vehicle. On one side, the accessory is connected to the LM18I to supply power to the charger. On the other side, the accessory effectively creates a USB port somewhere in the vehicle, which would then allow drivers to plug a charging cable into the port and charge their phone or other device. It was not clear to Girgis whether this feature was an accessory that was available with the HAU8000. 1062 Further, the documents comparing the LM18I with the HAU8000 record that the LM18I does not have a DVR option, which was an available accessory for the HAU8000. This follows from the change to the fascia of the LM18I as the DVR option was designed to be mounted to the top of the screen of the HAU8000. 1063 The documents comparing the LM18I with the HAU8000 also confirm that the following accessories were all the same for both the HAU8000 and LM18I being: (a) the cameras, being the HCAM001, HCAM002, HCAM003 and HCAM004, the camera connections, harnesses, camera modules, cables and indicator module recorded collectively under camera spare parts; (b) steering wheel remote kit, module, harnesses and sensor; (c) the wireless phone charger kit, charger pocket kit and bracket; (d) the TPMS, sensors, transceivers, connectors, removal tools, cables, harnesses and installation guide; (e) the reverse park assist kit, sensors, module and cables, the ADAS kit, sensor, module and connector, the external microphone and wiring, the front auxiliary cable, and trigger harnesses; and (f) the external SD card reader, the GPS antenna splitter cable, the AV unit control harness, the harness main accessories, the reverse camera kit, the reverse camera and connections and the USB quick charger kit. 1064 Further, there were component parts and accessories which were supplied by Directed in relation to the DIR6200 which were compatible with the LM18I being the analog camera with part number HCAM002, the 5 camera extension harnesses with part numbers HHAU013 to HHAU017, a part of the steering wheel remote kit with part number HRMT001, the whole of the reverse parking assistance kit, the whole of the TPMS sensors kit, the front 3 way auxiliary harness with part number HHAU012, the reverse and accessories trigger harness with part number HWH001 and the camera harness with part number HHAU033. 1065 Further, the accessories for the LM18I, being the GPS antenna, external cameras and camera connections/harnesses, camera modules, blind spot indicator activated side camera, front auxiliary cable, the TPMS, parking sensors, external microphone, wireless charger, ADAS, telematics unit/tracking system, external SD card reader, USB quick charger and steering wheel remote, remained the same as for the HAU8000. 1066 Further, the following accessories for the DIR6200 were compatible with the LM18I: reverse parking assistance kit, analog cameras and extension harnesses, TPMS, reverse and accessories trigger harness, part of the steering wheel remote kit and front 3-way auxiliary cable. 1067 Further, Girgis compared the GUI documents for the HAU8000 as at 5 April 2017 and for the LM18I as at 16 March 2018 and whilst it appeared that there have been many changes that have been made to the GUI for the LM18I, there were also many screens that were very similar. 1068 Girgis concluded that the LM18I and its accessories were substantially the same as the HAU8000 and its accessories, save that the LM18I had a different size screen, lack of CD/DVD slot, has only one physical knob and the push buttons, auxiliary jack and USB port are in different positions. I accept this. 1069 Now Lee did not make a specific comparison between the HAU8000 and LM18I and their accessories, so Girgis had to refer to his comparisons between the DIR8000 and the HAU8000 and the DIR8000 and the LM18I and their accessories. Girgis' evidence was that apart from matters relating to the screen, the chassis and the rear configuration and layout of the LM18I and the HAU8000 were identical. 1070 Now Lee provided a number of depictions of PCBs and schematic circuit diagrams for the LM18I and HAU8000. Any change or upgrade to hardware features or functionality including changes to available accessories could require changes to PCB design, circuit board componentry, schematic circuit diagrams and wiring harnesses. The availability and sourcing of particular electronic components can change the appearance of PCBs and schematic circuit diagrams. But differences in appearance in PCBs and schematic circuit diagrams do not necessarily mean that the design and specification of one unit was not derived from another. 1071 Now in relation to Girgis' comparisons, he did not attempt to compare PCBs and schematic circuit diagrams of various units side-by-side in the manner Lee had done. But he said that his observation of the various PCBs and schematic circuit diagrams for all of the LM18/19 units and the HAU8000 appeared very similar, with minor changes that would be expected. I accept Girgis' views. 1072 In summary, in my view the design, the hardware and the software of the LM18I was derived from the work undertaken in relation to the HAU8000 and they are substantially the same unit, with the same accessories, save that the LM18I has a different size screen, has only one physical knob and the push buttons, auxiliary jack and USB port are in different positions. 1073 Let me say something about the telematics capability of the LM18I. Lee said that the LM18I was never designed to communicate with any telematics unit. But the following points may be made. 1074 First, the LM18I MFL signed by both Hanhwa Aus and IAL specified that it was capable of operating with a telematics unit and that the menu would be hidden unless required. 1075 Second, in the LM18I PPAP signed by both Hanhwa Aus and IAL, the outline drawing dated 5 July 2018 drawn and checked by W Kim describes among other things the pinouts for the various connectors at the rear of the LM18U. For the 32 pin input connector in the top left hand corner of the diagram, pins numbered 24 to 26 are listed as RS-485 connectors. This would enable an output from a telematics unit to connect to the LM18I. 1076 Third, in the LM18I PPAP signed by both Hanhwa Aus and IAL, the accessories layout drawing dated 15 June 2018 drawn by W Kim, checked by JH Han and approved by Lee shows an RS-485 connect in the main AV unit harness. This would enable an output from a telematics unit to connect to the LM18I. 1077 Fourth, a comparison table comparing the LM18I with the HAU8000 which was prepared by Hanhwa for IAL dated February 2018 records that both units would have a telematics option, with telematics to be provided by a third party. 1078 Let me say something about the Polstar navigation software. As a result of the alterations to the screen size and the GUI for the LM18I, LM19M, LM19F and LM19U, there would have needed to have been some further development work and some road testing undertaken by the Hanhwa parties and Polstar for the new navigation software for those units from the work undertaken in relation to the HAU8000 navigation software. However, that work was minor compared to the development work that was undertaken to develop the HAU8000 navigation software. The Polstar software developed for the HAU8000 was merely modified to suit the subsequent LM units. The LM18I unit v other LM units 1079 In my view, the design, hardware and software of the LM19F, LM19M, LM19U, LM18H was derived from the work undertaken in relation to the DIR8000/HAU8000/LM18I. 1080 The LM19M / LM19F and their accessories are similar and are derived from the LM18I and its accessories. 1081 The LM19M was not started from scratch. The LM18I was the reference point. The significant changes were to the user interface. The owner manual for the LM19M was drafted within 3–4 weeks from Hanhwa being successful in its tender for the supply of the LM19M to Mercedes. The only differences between the LM19M and LM19F and their accessories and the LM18I and its accessories are those that I will describe in a moment. 1082 The LM19U is the same as the LM18I with minor changes, and with substantially the same accessories. The only differences between the LM19U and its accessories and the LM18I and its accessories are those that I will describe in a moment. 1083 The LM18H is the same as the LM18I with minor changes, and includes telematics capability. The only differences between the LM18H and its accessories and the LM18I and its accessories are those that I will describe in a moment. 1084 Now Girgis was asked whether each of the LM18H, LM19F, LM19M, LM19U and the Isuzu D-MAX AV unit and their related accessories were substantially the same as the LM18I and its related accessories. Further, he was asked to identify the differences (if any) between each of the further AV units and their related accessories and the LM18I and their related accessories. LM19M and LM19F units 1085 Girgis was provided with documents relating to the design and development in the period February to November 2018 of an AV unit to be supplied to Mercedes and Fuso given the name LM19M for Mercedes and LM19F for Fuso. 1086 He reviewed documents relating to the LM19F and LM19M being the MFL for the LM19F and LM19M, the line drawings for the LM19F and the user manual for LM19M. 1087 He had been unable to identify any difference between the LM19M and LM19F. The MFL was for a 6.2 inch unit. The line drawings show both a 6.2 inch and 7 inch version, as does the user manual. It appeared to him that both the LM19M and LM18F were offered to Mercedes and Fuso in either a 6.2 inch and 7 inch version. 1088 He noted that the email exchange at HAN.008.001.8762 of Lee of the Hanhwa parties confirmed that the hardware, which was the unit other than the fascia, and operating system in the LM18I, LM19M and LM19F are all the same and only the GUI differed. The email exchange refers to there being 6.2 inch and 7 inch variants of the LM19M, which are also confirmed to have the same hardware and operating system. Further, the email exchange confirms that the Polstar navigation software proposed to be used on all the various AV units was identical except the logos and brand names used, which presumably were specific to the relevant vehicle model. 1089 As far as he could ascertain, the LM19F and LM19M were exactly the same as LM18I save in the following respects. 1090 In relation to the front fascia, the LM19F and LM19M were offered in a 6.2 inch version like the LM18I, but a 7 inch version was also offered. Further, the control knob is in a different position, moving from the top to the bottom of the right hand side. Further, the LM18F/M have push buttons located at the bottom of the screen and there is an additional button for "cam" i.e. camera. Further, the USB and auxiliary port are in different positions. Further, there is a SD card slot in the front fascia for navigation software, rather than using an external SD card reader. 1091 The LM19F/M has a 32GB hard drive whereas the LM18I had a 16GB hard drive. But the HAU8000 and the DIR8000 had a 32GB hard drive. 1092 The LM19F/M has a "PTO" input being a power take-off input, that is, a signal transmitted via the CAN input which tells the AV unit that a certain feature of the vehicle has been engaged. As this input is taken from CAN, it is a software feature rather than a hardware change. Further, it was not clear whether the LM19F has text-to-speech functionality. 1093 Girgis reviewed the line drawings of the chassis of the LM19F/M and LM18I and the input and output terminals to connect peripherals, accessories and wiring harnesses, as well as the design, location and layout of the fastening screws, cooling fan, grilles and vents. These all appeared to be identical. The design of the left and right hand sides of the chassis of the LM19F/M, as well as the screw positions, appeared to be identical to the LM18I. 1094 The LM19F/M and LM18I both offered as accessories a GPS antenna, TPMS, with the same specifications, reverse parking sensors with the same specifications, front auxiliary input cable, USB quick charger, wireless charger and blind spot indicator activated by side camera trigger. 1095 The MFL does not specify whether the LM19F/M had steering wheel remote or ADAS as optional accessories. 1096 The LM18I was offered as being suitable for integration with a telematics unit to be supplied by a third party. The MFL and line drawings for the LM19F/M do not specify whether it can be integrated with a telematics unit or offered telematics functionality. However, the input and outputs connectors on the LM19F/M are the same as the LM18I, suggesting telematics integration was possible. Further, various documents record that the Hanhwa parties in September 2018 offered a telematics solution involving a telematics unit and telematics services to the Daimler group, which includes Mercedes and Fuso, and promoted their hardware and software as being suitable for integration with the AV unit. 1097 So, Girgis concluded that the LM19M and LM19F and their accessories were substantially the same as the LM18I and its accessories, save that the LM19M and LM19F had an additional screen size option, integrated SD slot and different positioning of the control knob and operation buttons, auxiliary jack and USB port. For the most part I accept Girgis' views. 1098 Now Lee's evidence is that the LM19F/M are not exactly the same as the LM18I and asserts that his exhibits illustrate the differences between these units. He asserts that the hardware is completely different which is a reference to the PCBs. But Lee did not make a specific and detailed comparison between the LM19F/M and the LM18I and their accessories other than very briefly and as can be ascertained from his exhibits. 1099 Now as to the LM19F/M had buttons located at the bottom of the screen, Lee described these as being capacitive touch buttons. From the documents Girgis had originally available to him, he did not identify that these were capacitive touch buttons, but he now accepts that they are. 1100 Further, in the representations of the products exhibited to one of Lee's affidavits, the side and top views of the LM18I and the LM19F/M model variants appear to be the same, but the rear view of the units is different. 1101 Now Girgis' evidence regarding the rear of the units was based on a review of the line drawings for the LM19F6.2 dated 23 July 2018 and the LM19F7 dated 23 July 2018, which show that the rear of those units appears identical to the LM18I. These drawings, drawn by JM Choi, checked by JH Han and approved by Lee, pre-date when Lee stated that design work on the LM19F/M commenced, being September/October 2018. Further, the people who Lee records were involved in the design do not include JM Choi. Girgis noted that the representations of the rear view of the LM19F/M model variants which are exhibited by Lee appear different to the line drawings he reviewed originally in that they do not show any cooling slots and the bottom right hand connector is in a slightly different position to accommodate an additional port. The rest of the ports and connectors, screws and the cooling fan are the same and located in the same position. 1102 I am not able to resolve this aspect of the matter. 1103 Further, as to accessories, Girgis originally set out the accessories shared between the LM19F/M and LM18I. Now the accessories for the respective units listed by Lee have the same options and part numbers, save that the external microphones for the LM19F units have different model numbers, whilst the LM19M units do not have an external microphone. Further, the LM18I has a steering wheel remote control kit; contrastingly, the LM19F/M utilised the factory steering wheel controls via CAN input as so no separate kit would be necessary. Further, the LM19F/M units did not have an external SD card reader, except for the LM19M7, which used the same external SD card reader as the LM18I, which was the same as the DIR8000. Further, TPMS support is not listed for the LM19M7, but it is for the other LM19F/M units. 1104 Lee does not contradict Girgis' evidence save that TPMS support is not listed for the LM19M7 variant. Lee's evidence is that the cameras, camera control boxes, camera extension leads, harnesses, wireless charger, rear parking sensor and TPMS are all the same between the LM18I and LM19F/M, save as described earlier. 1105 In summary, Girgis was of the opinion, which I accept, that the design, hardware and software of the LM19F/M model variants were derived from the work undertaken in relation to the LM18I and they are substantially the same unit, with substantially the same accessories. 1106 Let me turn to the telematics capability of the LM19F/M model variants. 1107 Lee deposed that no Hanhwa AV units from the HAU8000 onwards were designed to communicate with any telematics unit of any other party. However, Girgis noted the following matters. 1108 The input and outputs connectors on the LM19F/M are the same as the LM18I, suggesting telematics integration was possible. 1109 Further, on 25 September 2018, Meneses sent an email to Parikh at Mercedes providing a presentation and strategy document on the Hanhwa/Gridtraq proposal to take over the provision of telematics hardware, software and services to the Daimler group/Mercedes. These documents appear to show that Hanhwa offered the Daimler group a telematics solution which included "head unit & vehicle integration" with onscreen vehicle alerts and two way messaging. A telematics hardware kit diagram is shown with a "telematics / head unit integration connector", which is "configurable to meet manufacturer requirements". The telematics unit pictured is identical in appearance to the RA7000 telematics unit Girgis inspected on 12 April 2019. The page titled "Telematics and Head Unit Integration" identified four aspects. 1110 First, it identified "proprietary developed integration protocol", which indicated to Girgis that a communications protocol had been developed for the exchange of information between the telematics unit and the Hanhwa AV unit being proposed to Mercedes. 1111 Second, it identified "hardware communication interface for screen integration", which indicated to Girgis that hardware had been developed to connect the RA7000 telematics unit to the Hanhwa AV unit being proposed to Mercedes. 1112 Third, it identified "integration functionality configurable to suit manufacturer requirement", which indicated to Girgis integration between the RA7000 telematics unit and the Hanhwa AV unit being proposed to Mercedes. 1113 Fourth, it identified most of the features which depended upon integration between a telematics unit and an AV unit. 1114 The features are then later illustrated which confirm that telematics communications can be shown visually to the driver through the Hanhwa AV unit being proposed to Mercedes. 1115 Now the unit depicted in the presentation appears to be an RA7000 AV unit. But it is not clear whether the Hanhwa AV unit being proposed to Mercedes was limited to just the RA7000 AV unit or included the LM19F/M unit. I cannot resolve this question. 1116 LM18H unit 1117 Girgis reviewed documents related to the design and development of an AV unit in the period April to June 2017 to be supplied to Hino. 1118 The features of the AV unit that Girgis identified were as follows. It is an 8 inch touch screen and navigation unit given the model name HAU8200. It has a screen that sits out from the unit and can fold down to allow access to the CD/DVD slot, and two SD card slots. It has two control knobs on either side with 4 push buttons in between, all of which sit below the screen. The AV unit includes the Android OS, CD/DVD player, telematics including driver ID/login and messaging, navigation, AM/FM radio, iPod connectivity, music, phone call functionality, internet web browsing, messaging, WI-FI, fader, balancer and equalizer, time and weather widgets, connectivity to cameras, connectivity to ADAS system, voice recognition, auxiliary device connectivity, Bluetooth audio (i.e. the ability to play songs from a smartphone), DVR, TPMS monitoring and diagnostics, phone mirroring for both Android and iOS devices (via AirPlay), including iPhone 7 connectivity/mirroring, HDMI – video and audio input from other devices, video player, memo application (to write or type notes), PDF reader, photo viewer, reverse parking sensor, connectivity to 4 cameras with all-around view and side-view, mobile phone charging capability and an in built microphone. 1119 It appeared that the design of an AV unit given the name of LM18H was created in or around February 2018. This unit appeared to have the same fascia and screen design and features and functionality as the HAU8200, save for the following matters. First, there was a USB input accessible behind the fold down screen, which may have been available on the HAU8200. Second, the LM18H has Apple CarPlay rather than Apple AirPlay. Third, the LM18H has a side mirror indicator, meaning the screen shows the side camera view when turning, which may not have been available on the HAU8200. Fourth, the LM18H has PTO monitoring functionality showing whether particular vehicle functions are enabled; PTO refers to a device that takes engine power and directs it to another piece of equipment on the vehicle; it is typically found on heavy machinery such as tractors or rubbish trucks where engine power can be used to operate mowers or water pumps. 1120 Further, as far as Girgis could ascertain, the LM18H is the same as LM18I save for the rear layout and save in the following respects. In relation to the front fascia and controls: (a) the LM18H has two control knobs, as did the HAU8000, below the screen; (b) the LM18H has 4 buttons performing the same functions but located at the bottom of the screen; (c) the LM18H has an 8 inch screen which sits out from the unit, as did the HAU8000; (d) the LM18H has a CD/DVD player, as did the HAU8000, which is accessible by folding the screen down; (e) the LM18H has two SD card slots accessible by folding the screen down, one for data and the other for navigation software, rather than through an external SD card reader; (f) the LM18H has a USB3.0 slot which is located next to the SD card slots; and (g) the LM18H has an auxiliary port. 1121 However, all of these design aspects are the same as they were on the HAU8200. 1122 Further, software updates are delivered by SD card rather than USB, as they are with the HAU8200. Further, the LM18H has a PTO input specified via RS485. As this input is taken from CAN, it is a software feature rather than a hardware change. This feature was on the HAU8200. Further, the MFL does not specify the hard drive capacity for the LM18H. 1123 Further, the LM18H and LM18I both offered various accessories being a GPS receiver/antenna, TPMS with the same specifications, reverse parking sensors with the same specifications, blind spot indicator activated by side camera trigger, front auxiliary input cable and USB quick charger. 1124 The MFL does not specify whether the LM18H has steering wheel remote, wireless charger or ADAS as optional accessories. 1125 The LM18H was offered as being suitable for integration with a telematics unit to be supplied by a third party. LM19U unit 1126 Girgis reviewed documents relating to an AV unit and accessories for UD given the model name LM19U. 1127 As far as he could ascertain, the LM19U and its proposed navigation software is the same as the LM18I save for the rear layout and save that: (a) the LM19U was offered in 3 different screen size formats: an 8 inch version, a 6.5 inch version and a 6.1 inch version, each with its own button and control knob configuration; (b) these units had an option for CD/DVD slot whereas the LM18I did not; (c) the 8 inch version has two SD slots for multimedia and navigation, rather than using an external SD card reader for navigation; the 6.1 inch and 6.5 inch variants only have one SD card slot; (d) the LM19U does not list rear camera trigger inside the cabin, which was an optional feature for the LM18I; (e) the LM19U has a PTO input specified via RS485; as this input is taken from CAN, it is a software feature rather than a hardware change; and (f) the MFL does not specify the hard drive capacity for the LM18H. 1128 The LM19U and LM18I both offered various accessories being TPMS with the same specifications, reverse parking sensors with the same specifications, blind spot indicator activated by side camera trigger, front auxiliary input cable and USB quick charger. 1129 The MFL does not specify whether the LM18H has a GPS antenna, although this is implied due to navigation software, steering wheel remote, wireless charger or ADAS as optional accessories. 1130 The LM19U was offered as being suitable for integration with a telematics unit to be supplied by a third party. 1131 Girgis concluded that the LM19U and its accessories were substantially the same as the LM18I and its accessories. 1132 Now when Girgis prepared his original evidence, he did not have information detailing the level of specification information for the LM19U units which was in Lee's evidence. Girgis has compared that information to the LM18I and as far as he can identify, the differences include that the LM19U models have a DVD player, the LM19U8 has phone mirroring, whereas the LM18I and LM19U6.1 do not, and the LM19U models can output DVD to dual zone. 1133 Further, Girgis set out the accessories shared between the LM19U and LM18I. The accessories for the respective units listed by Lee have the same options and part numbers, save that the external microphone for the LM19U8 has a different model numbers, whilst the LM19U6.1 does not have an external microphone, the LM18I has a steering wheel remote control kit whereas the LM19U models do not, the LM19U models did not have an external SD card reader, TPMS is not specified for the LM19U models, and the LM19U6.2 does not list ADAS or wireless charger whereas the LM19U8 and LM18I do. 1134 Lee does not contradict Girgis' evidence save that TPMS support is not listed for the LM19U models. However, in the MFL comparison document Girgis reviewed, TPMS was listed as an option for all LM19U models. Further, Lee's evidence is that the cameras, camera control boxes, camera extension leads, harnesses, and rear parking sensor are all the same between the LM18I and LM19U, save as described earlier. 1135 In summary, Girgis was of the opinion, which I accept, that the design, hardware and software of the LM19U model variants were clearly derived from the work undertaken in relation to the LM18I and they are substantially the same unit, with substantially the same accessories. 1136 Let me say something about the telematics capability of the LM19U model variants. Lee gave evidence that no Hanhwa AV units from the HAU8000 onwards were designed to communicate with any telematics unit of any other party. But according to Girgis, the input and output connectors on the LM19U are the same as the LM18I, suggesting telematics integration was possible. Further, the LM19U MFL comparison sheet also lists a RS485 input, which would enable connection to a telematics unit. Further, the LM19U MFL specified that it was capable of operating with a telematics unit. D-MAX AV unit 1137 Girgis reviewed documents relating to the design of an 8 inch AV unit proposed in or around 2017 to be supplied for installation in Isuzu Utes (D-MAX AV unit). 1138 The 6.1 inch AV unit depicted appears to be a unit from an earlier period of time, based on the 2014 date shown in the screenshots and the features listed, such as the reference to Bluetooth version 2.0. 1139 The features of the D-MAX AV unit were as follows. It has an 8 inch capacitive touch screen. It has a CD/DVD player. It has two control knobs on either side with 4 push buttons in between, all of which sit above the screen. In different iterations of the proposal, the AV unit was proposed to run on either Android Automotive OS or Windows CE. However, in the MFL, the AV unit is specified as running Android Automotive OS. The AV unit has a map button, which together with the reference to Here Maps logo, suggests it would have navigation functionality, AM/FM radio and DAB+, music, phone call functionality and messaging through Bluetooth version 4.0, fader, balancer and equalizer, time and date, connectivity to reversing camera, auxiliary device connectivity, USB port, Bluetooth audio, phone mirroring for both Android and iOS devices, video player, writing pad feature, reverse parking camera, mobile phone charging capability through USB port, an in built microphone and optional external microphone and optional steering wheel remote control interface. 1140 There are many features in common between the D-MAX AV unit and the LM18I. There are also a number of features and accessories specified for the LM18I, LM19F, LM19M, LM18H and LM19U that are not listed for the D-MAX AV unit, such as TPMS, blind spot indicator, telematics, ADAS and the ability to connect 4 cameras. 1141 Girgis was not able to conclude whether the D-MAX AV unit was substantially the same as the LM18I. Criticisms of Girgis by the Hanhwa parties 1142 Now the Hanhwa parties say that Girgis did not see any of the working samples of the DIR8000. This meant that his opinion was based on his interpretations of such of the historical third party documents that K&L Gates provided to him, for example emails, minutes of meetings, records of business trips, versions of MFLs and GUIs. 1143 Further, the Hanhwa parties say that for the most part Girgis performed the role of reading relevant documents and noting their content without any real use of specialised skill or learning. 1144 And generally, the Hanhwa parties say that the manner in which Girgis' evidence in chief was put together was problematic. They point to the following matters. 1145 In answer to a subpoena, Girgis produced an email of 12 June 2019 sent to him by K&L Gates (copied to other lawyers at that firm, including the partner in charge) by which the firm actually provided Girgis with the first draft of his own first report, which was said to have been "taken from [him] during the course of meetings at [K&L Gates'] office.". The email went on to record that Girgis would now complete his further review of documents in 7 folders provided to him. 1146 Girgis also supplied his timesheet relevant to the production of his first affidavit. The timesheet and email from K&L Gates attaching Girgis' first report revealed that after a one hour initial introduction with K&L Gates on 7 March 2019, he spent a total of 5 hours independently reviewing the voluminous documents he had been provided with as part of his briefing notes, 3 hours reviewing documents in respect of the inspection of the Gridtraq parties' products and 5 hours performing the inspection of the Gridtraq parties' products, before attending 8 separate conferences at K&L Gates which he described in his timesheet as "Meeting – conference", which ran for a total of 53.5 hours. This was an average of 6.7 hours each day. He then received the first draft of his report from K&L Gates on 12 June 2019, before completing just 19.5 hours of work apparently independently of K&L Gates over 4 days between 14 June 2019 and 18 June 2019. On the day Girgis signed his first report, being 19 June 2019, he held another meeting/conference with K&L Gates that lasted a further 5.5 hours, although this last meeting might have been longer. 1147 When cross-examined, Girgis said that the lawyers in the meetings with him over 53.5 hours predominantly simply sat silently whilst Girgis dictated to them. Although he agreed that this was an expensive form of word processing, he could not actually recall who conducted the typing, although he was able to confirm that it was not a professional secretary or typist. 1148 Further, the Hanhwa parties say that Girgis' third brief is typical of the other briefs in that it is accompanied by what are referred to in the briefing letter as briefing notes, but what were, in reality, a carefully prepared suggestive chronology of events for Girgis to adopt based on documents. 1149 Further, the Hanhwa parties say that Girgis was wrong with aspects of his conclusions. But I have dealt with relevant aspects elsewhere. 1150 Further, the Hanhwa parties say that Girgis' area of expertise was telematics, and his resumé in evidence makes no mention of experience in respect of AV units separately to telematics. 1151 Further, they complain that notwithstanding that his opinion was based primarily upon the interpretation of documents, Girgis expressed opinions throughout his reports as to the utility of information for those who were wishing to develop products in competition with Directed, expressing opinions along the lines of "If I was wishing to develop products in competition with Directed for supply to Isuzu, I believe this information would be very valuable". I should say now that I have endeavoured to put such expressions of view to one side. 1152 More generally, I do agree that from time to time Girgis was speculating, and in a manner not within his expertise. Where that is the case I have endeavoured to put such evidence to one side. 1153 Now the Hanhwa parties note that Girgis did not see any of the working samples of the DIR8000. But this is not a valid criticism. I agree with Directed that this was prevented by Meneses' conduct. 1154 Further, the Hanhwa parties say that the manner in which Girgis' evidence was prepared was problematic. But the evidence demonstrates that Girgis put in very substantial time, both in conference and on his own, in order to reach the conclusions that he did. Further, the method of drafting his evidence in chief was not problematic. Expert evidence is frequently undertaken with assistance. Notwithstanding such assistance, which may include drafting, the expert, frequently a principal of his firm, will confirm that the opinion is his own. Further, Girgis was provided with well over 250 discovered documents to review. He referred to over 150 discovered documents in his evidence, a matter which needed to be managed during the drafting process. Documents were electronically brought up on screen. His evidence was then transcribed. Ultimately, he checked his written evidence and made amendments. 1155 Further, I agree with Directed that Girgis' expertise was displayed under cross-examination. He was in command of the material and was thoughtful. I reviewed his video deposition. He made concessions where appropriate. 1156 Further, the Hanhwa parties submit that Girgis was wrong in some conclusions. But the real issue is their significance, whether they were corrected and whether the expert was prepared to reasonably resile from such errors once they were pointed out. In my view Girgis was prepared to make necessary corrections to his evidence. 1157 Finally, criticism is levelled at Girgis' expertise being limited to telematics. But he was cross-examined about whether his experience extended to AV units, GUI design, PCB design, fascia design as well as telematics. He established that he did have such experience. 1158 I will deal with other criticisms made by the Gridtraq parties later. But for the moment it is sufficient to say that I have largely rejected the Hanhwa parties' criticisms, although I should say that I have put aspects of Girgis' speculation on some matters to one side where it is truly not properly expert opinion evidence. The case against Meneses and OE Solutions 1159 This section of my reasons principally deals with the claims against Meneses and OE Solutions. But three points. First, some of what I will say also covers the claims against Mills. Second, in dealing with the topic of secret commissions I will also deal with the Hanhwa parties. Third, I will deal with Meneses' cross-claim. 1160 The case against Meneses and OE Solutions involves various claims covering an extended period. 1161 First, there is the secret commissions conduct, which embraces the secret payments and seeks an accounting for all the gains made for the enhancement of the Hanhwa parties' business. I have accepted these claims in part and their narrow quantification, but not Directed's inflated quantification claims. 1162 Second, there is the unlawful diversion by Meneses, with the assistance and participation of Mills and the Hanhwa parties, of various business opportunities that could have been exploited for Directed. I have accepted these claims for the most part, save that the justifiable claims against Mills are narrower. 1163 Third, there is the alleged OE Solutions' conduct by which Meneses interposed his own company between a supplier and his employer Directed to reap an improper profit. I have accepted these claims. Indeed Meneses barely sought to defend them. I will deal with them briefly in this section and elaborate more when I come to Mills who it is said actively assisted Meneses and OE Solutions in this respect. 1164 Fourth, there is other conduct which is said to involve breach of confidence, copyright infringement and further breaches of restraints and duties owed by Meneses and Mills. Directed has made out these claims against Meneses and Mills. I will come to the Hanhwa parties later. 1165 Fifth and generally, Meneses was clearly involved with Lee in the conduct of Hanhwa Aus whilst he was still employed by Directed, and was involved in conduct the subject of this proceeding including the SuperDAVE conduct, misrepresentations to IAL, D-MAX conduct, Hanhwa 6160 conduct, Hino conduct, ICL conduct, solicitation of Directed employees, Meneses and Mills dual employment conduct, Meneses' and Mills' breaches of non-competition clauses, Polstar conduct and misuse of confidential information. 1166 Before turning to the specific case against Meneses and OE Solutions, it is convenient to say something about the various duties of Meneses. And given that they are similar, I should say something concerning the various duties of Mills. 1167 Let me begin with the question of contractual duties. Contractual duties 1168 Meneses and Mills were employed by Directed pursuant to detailed written employment agreements. 1169 As I have said, Meneses was employed by Directed in the position of Business Development Manager pursuant to the terms of a written employment agreement dated 11 May 2009. The agreement was signed on behalf of Directed by Tselepis and Siolis, and signed by Meneses. In my view his employment with Directed ended in about November 2017. 1170 Mills was employed by Directed in the position of Project Manager pursuant to the terms of a detailed written employment agreement dated 1 June 2009. The agreement was signed on behalf of Directed by Siolis, and by Mills in the presence of Meneses to whom he reported. His employment ended on 8 March 2017. 1171 The employment agreements contained terms mirroring Meneses' and Mills' fiduciary obligations. The agreements also contained express confidentiality obligations and express restraints on post employment conduct. 1172 Mills, Meneses and the Hanhwa parties have challenged each non-competition clause on the basis that it imposes an unreasonable restraint of trade. I will deal with this contention later, although I would say now that I reject it. 1173 The relevant express terms were extensive and common to Meneses and Mills. First, they had to show the utmost good faith and devote the whole of their working time and attention to the business of Directed and not engage in any other activities except with the written approval of Directed. Second, they had to use their best endeavours at all times to promote the interests and welfare of Directed and any related entity, to act in the best interests of Directed at all times and to use their best endeavours to promote the development, profitability, interests and welfare of Directed and any related entity. Third, they could not undertake other employment without the written approval of Directed. Fourth, they were not to misuse Directed's property or services, or allow such misuse by other persons. Fifth, as soon as practicable upon becoming aware thereof, they had to inform Directed of any act of dishonesty pertaining to the business, property or transactions of Directed on the part of any person which may have come to their knowledge. Sixth, they could not during the course of their employment, without the prior written consent of Directed, undertake any appointment, position or work that resulted in them competing with Directed, or which otherwise adversely affected Directed or hindered their performance of duties owed to Directed. 1174 Further, the express terms prohibiting conflicts of interest were extensive in that: (a) they had to ensure that there was no conflict between Directed's interests and their personal interests; (b) they had to make full and complete disclosure to Directed of the existence, nature and extent of any conflict or potential conflict of interest that they may have in any manner or capacity whatever with their duties or obligations; (c) they could not solicit or accept from any person any remuneration or benefit in excess of their official remuneration with Directed for the discharge of their duties; (d) they had to immediately report to Directed any remuneration or benefit they received from another person, and they could not deal with or otherwise dispose of any such remuneration or benefit without the prior written consent of Directed; (e) they had to avoid any circumstance where a person or persons could improperly influence or enjoy unduly favourable treatment by Directed; and (f) they could not allow their pursuit of private interests to interfere with the proper discharge of their duties with Directed. 1175 There were also express terms such as clause 20 prohibiting misuse of confidential information. Meneses and Mills acknowledged that through the course of their employment or otherwise they might obtain access, or become aware of, confidential information which was of commercial value to Directed and which was owned by and would at all times remain the property of Directed. Confidential information as referred to in each agreement included but was not limited to all information regarding the current or future business interests, methodology or affairs of Directed, including matters of a technical nature, notes, products, know how, trade secrets, engineering or other data, planning or marketing procedures, techniques or information, accounting procedures or financial information, customer lists and all information designated as confidential by Directed. The obligations under the provision did not apply to any confidential information that they could demonstrate had entered the public domain or became public knowledge other than through their default or the default of those for whom they were responsible. They agreed to keep in confidence all confidential information and that they would not disclose to any person any confidential information without the consent of Directed. Further, they agreed that they would not use or modify for their own use or for the use or benefit of any third party any confidential information. They also agreed that they would only use such confidential information for the purposes of performing, and to the extent necessary to perform, their duties, and would not modify, reverse engineer or make copies, notes or records of the confidential information for any purpose other than in connection with the performance of their duties. They agreed that they would promptly at the request of Directed at any time disclose and deliver up to Directed all confidential information including copies in their possession custody or control. 1176 As I have indicated, the employment agreements also contained a non-competition term which was embodied in clause 23. This operated for the term of Meneses' and Mills' employment and for a period up to 6 months after termination of employment. The maximum area the subject of the restraint was within the State of Victoria. Further, they acknowledged that the restraint was reasonable in its extent as to duration, geographical area and specified conduct. 1177 In this respect, pursuant to the non-competition clause they could not in any capacity including on their own account or as a member, shareholder, unitholder, director, partner, joint venturer, employee, trustee, beneficiary, principal, agent, adviser, contractor, consultant, manager, associate, representative or financier or in any other way or by other means: (a) during the restraint period and in the restraint area, participate in, be interested in, assist with or otherwise be directly or indirectly involved, engaged, concerned or interested in a business, activity or operation that was the same as, substantially similar to, or competitive with, Directed's business or any material part of it; (b) during the restraint period, solicit, entice away, interfere with or endeavour to solicit, entice away, or interfere with any person, firm, corporation or entity which was or is a client or customer of Directed (or any related entity of Directed) and with whom they had direct dealings in the previous 12 months; (c) during the restraint period, solicit, canvas, encourage or induce, or endeavour to do so, any person who was or is a director, employee, agent, associate, contractor or advisor of Directed or any related entity of Directed, and with whom they had direct dealings in the previous 12 months, to leave that office, employment, agency or association or to enter into employment or any other association with any other person, firm or company; (d) during the restraint period, interfere with the business of Directed or divulge to any person any information, including confidential information, concerning the business of Directed or any related entity of Directed or any of their respective dealings, transactions or affairs; or (e) during the restraint period, interfere to the detriment of Directed with the relationship between Directed and any of its clients, customers, employees or suppliers. 1178 Now as I have said, Mills, Meneses and the Hanhwa parties challenge the validity of clause 23 on the basis that it imposes an unreasonable restraint of trade. Of course Directed had to show that the covenant was no wider than reasonably necessary to protect Directed's legitimate business interests. But in my view Directed has easily so demonstrated. 1179 The onus of proving the circumstances from which the court may infer reasonableness between the parties is on the person seeking to enforce the covenant. However, if any employee or other covenantor alleges that the restraint clause is against the public interest, the burden of proving that proposition is on the employee/covenantor. 1180 Now the principles governing the enforceability of restraint of trade clauses are not contentious. A restraint of trade provision is presumed to be void as contrary to public policy. But the presumption may be rebutted if there are special circumstances that demonstrate the covenant to be reasonable as between the parties and not unreasonable in the public interest. The test of reasonableness varies depending on the situation the parties occupy and their relationship. 1181 A restraint clause in favour of an employer will be reasonable as between the parties if at the date of making the agreement the restraint clause is imposed to protect a legitimate interest of the employer and the restraint clause does no more than is reasonably necessary to protect that legitimate interest in its duration or extent. In this respect, it is not in doubt that employers have a legitimate interest in protecting confidential information including customer connections. Further, for the legitimate purpose of protecting the employer's confidential information, a restraint clause does not need to be limited to a covenant against disclosing confidential information. It may restrain the employee from being involved with a competitive business that could use the confidential information. 1182 Now when a covenant or agreement is impeached on the ground that it contains an unreasonable restraint of trade, it is necessary first to interpret the covenant or agreement itself, and to ascertain according to ordinary rules of construction what is the fair meaning, and then to apply the rule as to reasonableness with reference to the extent of the impeached covenant, and to see whether it goes too far. 1183 Now the clause under consideration in the present case may be fairly construed as follows. The maximum restraint period is 6 months. The maximum restraint area is within the State of Victoria. Accordingly, during the restraint period the employee could be involved in a business, activity or operation "that is the same as, substantially similar to, or competitive with" Directed's business or any material part of it, so long as this was outside Victoria. Further, during the restraint period the employee could solicit, entice away and interfere with existing or past clients or customers of Directed, so long as it was not a client or customer with whom the employee had direct dealings in the previous 12 months. During the restraint period, the non-solicitation restraint (which includes associates of Directed) only applies to those with whom the employee had direct dealings in the previous 12 months. Further, the restraint against interfering to the detriment of Directed with the relationship between Directed and any of its clients, customers, employees or suppliers only applies for the restraint period, namely, a maximum of six months. 1184 In my view, so construed, the restrictions placed on Meneses and Mills were confined and the minimum reasonably necessary to protect Directed's commercial interests. Meneses and Mills were not prevented from working in the areas of their expertise during the restraint period. For example, the restraint would not have been breached if Meneses had worked for Hanhwa Aus in relation to competitive activities which did not involve enticing away from Directed its customers with whom he had direct dealings in the previous 12 months prior to termination. 1185 At this point let me say something about the roles of Meneses and Mills. 1186 During Meneses' employment he held the positions of Business Development Manager and OEM director. He was a senior employee of Directed with management responsibility. His duties included regular communication with customers of Directed, corresponding and conducting business with Directed's suppliers, giving directions to employees of Directed and managing its business affairs. The suppliers with whom Meneses had direct dealings included Hanhwa Korea and Leemen Korea. Meneses was the person from Directed who had most of the direct dealings on behalf of Directed with the representatives of Hanhwa Korea to obtain the manufacture and supply of the Hanhwa Korea products for supply by Directed to the Directed customers. His role had an important marketing function. Meneses presented to Directed's customers product proposals. And Meneses was the person who had the most direct dealings with IAL, Mercedes, Fuso, Hino, and UD on behalf of Directed. 1187 So too, consistent with the tasks set out in his employment agreement, Mills reported directly to Meneses. Mills was the Project Manager. Further, the employee job description for Mills confirmed that he was Meneses' right-hand person who would, inter-alia, have ongoing customer contact. Mills' role also required him inter alia to "modify and complete CAD type drawings used in Directed OE products", to "liaise with the Quality Assurance Manager to complete Product part approval process (PPAP) documents to gain business", and to "assist with product testing of new product when required". His key role was to assist Meneses with functions including production and supply chain, account management on a project basis, completion of documents, spreadsheets and PowerPoint presentations, and scheduling and forecasting to ensure timely delivery of product to customers. Mills worked closely with Meneses and other Directed employees to source and supply products which Directed could on-supply to its customers. Mills, along with other employees of Directed, regularly met with employees of IAL. 1188 In my view the roles and functions of each of Meneses and Mills support the proposition that the relevant restraints were reasonable and valid. The manifest intention of the restraints was to prevent Meneses and Mills in the period after they left Directed from exploiting commercial relationships attained during their employment and then re-establishing them elsewhere in a different employment capacity. The risk to Directed which arose in such circumstances was a significant one. The risk arose because Meneses and Mills had the opportunity and obligation to develop personal relationships with Directed's customers, employees and suppliers, and to acquire knowledge and understanding of their affairs. These were also matters that were likely to make it attractive for such customers, employees and suppliers to leave Directed when Meneses and Mills left. Meneses and Mills had the capacity to take significant advantage of that accumulated knowledge and understanding. Further, the duration of the restraint of 6 months was relatively short and intended to minimise such risks. 1189 In summary, the restraints in my view were reasonable. Meneses' and Mills' arguments to the contrary fail. So too do any arguments of the Hanhwa parties to the contrary. Both Meneses and Mills breached such restraints. Further, in my view the Hanhwa parties induced breaches of contract in that respect. 1190 I should say for completeness that it is not necessary to deal with any question of severance. Fiduciary duties 1191 By reason of their respective employment by Directed, each of Meneses and Mills owed Directed fiduciary obligations to act with fidelity, in good faith and in the best interests of Directed, to use confidential information concerning the business or affairs of Directed obtained in connection with their employment by Directed solely for the purposes of Directed's business, to exploit for Directed's advantage alone each and every opportunity to expand Directed's business and not to promote their personal interest by making or pursuing a gain for themselves or any other person in circumstances of conflict with Directed. 1192 These fiduciary obligations arose as a consequence of the terms of the Meneses employment agreement, the Mills employment agreement and the employee/employer relationship, and by reason of the nature of confidential information provided to them and the circumstances of such imparting of such information to them. 1193 Of course, the relationship between employee and employer is one of the accepted fiduciary relationships. Within the fiduciary duties is a duty on an employee to act in his employer's interests and not in his own interests at the expense of his employer and also a duty not to misuse confidential information. But whilst an established category of fiduciary relationship, the scope of the duty has to be moulded to the nature of the particular relationship and the facts of the case. It is inappropriate to take a one size fits all approach to whether an employee owes fiduciary duties to an employer. In the present case, obligations coextensive with the fiduciary obligations of Meneses and Mills are expressly identified under the employment agreements. 1194 Further, fiduciary duties may arise as between employee and employer as a consequence of the employee's level of seniority, positions of responsibility and the relevant circumstances. Generally, a fiduciary is under an obligation not to promote his personal interest by making or pursuing a gain in circumstances in which there is an actual conflict or a real or substantial possibility of a conflict between his personal interests, and those of the persons whom he is bound to protect. 1195 The content of fiduciary duties is often expressed in terms of the conflicts rule and the profits rule that whilst overlapping are distinct. The conflicts rule is that a fiduciary must avoid an actual or significant possibility of conflict between his fiduciary duty and personal interest in the pursuit or possible receipt of a benefit or gain. The profits rule is that a fiduciary must avoid making a benefit or gain obtained or received by him by reason of or by use of the fiduciary position or of an opportunity or knowledge resulting from it. 1196 A fiduciary cannot divert to himself or another person or company with which he is associated a maturing business opportunity which the person is actively pursuing. Now a maturing business opportunity often takes the form of an opportunity to supply some services or goods which opportunity is approaching the stage where a contract can be formed but has not yet been reached; a diversion of such an opportunity amounts to a breach of the profits rule. 1197 Diverting business or profits including maturing business opportunities which came to the fiduciary through or in the course of the relevant engagement with the principal amounts to a breach of fiduciary duty. Further, a fiduciary's position inhibits him not only in respect of business opportunities that the company is actively pursuing, but also opportunities in which the company might reasonably be expected to be interested, given its current line of business. Further, it is not necessary to show that the opportunity taken by the fiduciary is one that could have been exploited by the company. 1198 The seniority of Meneses and Mills within Directed and their access to Directed's confidential information provide the foundation for the fiduciary nature of their respective relationships with Directed, as well as the content of the duties alleged. Further, whether Meneses held himself out to be a director or a senior employee of Directed does not matter. Either way, he was subject to the fiduciary duties asserted by Directed. Directors and senior employees are precluded from obtaining for themselves or another any property or business advantage belonging to their employer or for which it has been negotiating. They are not entitled to appropriate for themselves or divert to another with whom they are or may be associated a maturing business opportunity which the employer is actively pursuing. This is particularly so where the director or senior employee has been a participant in the negotiations on behalf of the employer. 1199 I have little doubt that Meneses and Mills owed the fiduciary duties alleged, that they were breached in a dishonest fashion and that the Hanhwa parties knowingly assisted such breaches. Duties under ss 182 and 183 of the Corporations Act 1200 Further, by reason of their employment by Directed, each of Meneses and Mills owed duties to Directed pursuant to ss 182 and 183 of the Corporations Act. I have discussed these provisions in an earlier part of my reasons and I will not repeat what I have said. These duties were owed and breached. Further, the Hanhwa parties were knowingly involved in such breaches. Meneses' privilege assertions and his defence generally 1201 Meneses relied on the privilege against self incrimination in respect of many of the claims. Meneses did not file any affidavit evidence in response to the claims made against him or the evidence filed by Directed in support of the claims. His only affidavits (not read) were in support of his cross-claim. He did not file and serve any amended defence or other affidavit evidence after Directed closed its case, even though the opportunity was afforded to him. He declined to give oral evidence. 1202 Meneses was entitled to rely upon the privilege. So be it. But where that entails an absence of evidence in support of some of his positive factual assertions, they must fail. 1203 Now I accept that some of Directed's allegations require application of an analogue of the Briginshaw standard; see s 140 of the Evidence Act. But in my view Directed has met that standard. Further, from time to time I have drawn necessary Jones v Dunkel inferences, particularly in relation to aspects of Meneses' defence or cross-claim that have little if anything to do with his privilege assertions. Meneses' defence themes 1204 Before turning to the specific allegations against Meneses, I should note that he made the following points about the general context in which the relevant events occurred. 1205 Hanhwa Korea was Directed's supplier. However, his case was that Hanhwa Korea was generally under no obligation to design new products for Directed or to use Directed to distribute any new products which were designed by Hanhwa Korea. 1206 He says that by mid-2016, Hanhwa Korea had given up on Directed reimbursing it for the DIR8000/SuperDAVE tooling. It had grown impatient with Directed's late payment practices. Motivated by these matters, in June 2016 Lee decided to establish the company which became Hanhwa Aus to directly distribute to IAL AV units and accessories manufactured by Hanhwa Korea. He says that at that stage, Hanhwa Korea envisioned that it would go it alone in respect of the unit which became the HAU8000 (and its accessories), but otherwise hoped to continue working with Directed in respect of all other AV units and accessories. 1207 Meneses says that he resigned from Directed on 19 July 2017. And he says that in August 2017, after returning from his knee operation, he commenced his employment with Hanhwa Aus. He says that between August 2017 and late October 2017, he was employed by Hanhwa Aus, but also did some work for Directed. He says that the suggestion that he was working full time for Directed during this period is untenable given this attendance record. 1208 He says that his working arrangements during this time were not, per se, sinister or underhanded. He says that there was clearly a transition period to be addressed following his resignation. Further, there was still a business relationship between Directed and Hanhwa Korea in respect of existing products. Accordingly, he says that whilst his resignation was not a clean break, his post July 2017 conduct should be assessed as an attempt to do the best by both his former and his new employers, and so make the transition as seamless and mutually beneficial as possible for both Directed and Hanhwa. 1209 Now he says that a number of Directed's claims against him and the other respondents are predicated on the allegation that but for the relevant conduct, IAL would not have entered into a supply agreement with Hanhwa Aus, but would have entered into a long term supply agreement with Directed for at least five years for the supply of the SuperDAVE and would have continued purchasing telematics units and telematics services from Directed for use in conjunction with the SuperDAVE. He says that Directed seeks to prove the allegation by inference, which is pleaded at a high level. But he points out that no witness from IAL was called by Directed. Meneses says that the allegation cannot succeed in the absence of concrete evidence, and further suffers from its dependence on Hanhwa Korea taking a series of steps in respect of the SuperDAVE which it never took. 1210 Now Directed alleges that Meneses engaged in conduct which constituted inducing a breach of the Hanhwa Enterprise Agreement or the Hanhwa Korea Agreement. But he says that that claim fails on at least three levels. 1211 First, the Hanhwa Enterprise Agreement is between Hanhwa Enterprise and Directed, and there is a real question as to whether it even binds Hanhwa Korea. He says that there is no clear expression of novation or acceptance of assignment by Hanhwa Korea. I will discuss this later. 1212 Second, he says that the alleged implied terms in the Hanhwa Korea Agreement do not satisfy the BP Refinery or Byrne test. They are not so obvious as to go without saying and nor are they necessary for business efficacy. In particular, the alleged exclusivity term was neither necessary nor obvious. The distributor arrangements between Hanhwa Korea and Directed were capable of operating without an exclusivity provision. Accordingly, he says that there is a real doubt about whether any contract or the relevant term existed with whose breach he could induce. I will discuss this later. 1213 Third, he says that the imputation of knowledge to him of the terms of the implied Hanhwa Korea Agreement must fail. In essence, Directed is seeking to establish that he either knew of a contract which did not bind Hanhwa Korea or knew of a contract which was wholly to be inferred and whose terms were uncertain. He says that such a case is unsustainable. I agree with Meneses. He had neither the relevant knowledge nor intent. 1214 Further, he says that the secret commissions and OE Solutions allegations have little bearing on the assessment of Directed's claims. 1215 Further, he says that the alleged diverted opportunities were not real opportunities for Directed, and that in any event some of the so-called diverted opportunities never eventuated for the Hanhwa parties. But I note on this aspect that Meneses' defence is in some respects problematic. In so far as Meneses' breaches of his fiduciary and statutory duties are concerned, the conduct is assessed by reference to his own conduct, in the context of his relationship with Directed, not on whether it was effective or not. A fiduciary's position inhibits him not only in respect of business opportunities that the company is actively pursuing, but also opportunities in which the company might reasonably be expected to be interested, given its current line of business. It is not necessary to show that the opportunity taken by the fiduciary is one that could have been exploited by the company. The reason for that is that because of the ongoing fiduciary duty owed, the pursuit of the opportunity by the fiduciary gives rise to a possible conflict between the fiduciary's personal interest and ongoing duty. 1216 It is convenient to begin with the diverted opportunities. SuperDAVE 1217 Since July 2016, Meneses continued with the development of the HAU8000, which was substantially the same as the SuperDAVE, to the exclusion of Directed. Since December 2016, Meneses engaged in testing of the HAU8000 to the exclusion of Directed. Further, between November 2015 and December 2017, Meneses used Directed's confidential information in relation to the SuperDAVE. And Meneses told Directed in March 2017 that IAL was not going to pursue the SuperDAVE project. 1218 Now according to Meneses, Hanhwa Korea was under no obligation to supply any new products to Directed. By about mid-2016, Hanhwa Korea had realised that Directed would not pay it for tooling of the SuperDAVE, which prompted the establishment of Hanhwa Aus. Accordingly, by mid-2016, there was no realistic prospect that Directed would be able to supply IAL. By mid-2016, Hanhwa already knew about the SuperDAVE project, by reason of Hanhwa Korea having designed, manufactured and supplied the prototype which Directed supplied to IAL. IAL had met with Hanhwa representatives, and therefore knew that Directed was a distributor rather than a manufacturer. And Hanhwa had manufactured other units for IAL which were distributed by Directed. 1219 In those circumstances, Hanhwa did not require any information from Meneses in order to develop and supply the SuperDAVE to IAL. Accordingly, even if Meneses did breach his obligations to Directed in some way, it was not causative of any loss suffered by Directed. 1220 Further, Directed's contention that Shanks of IAL told Meneses on 18 November 2016 that Hanhwa Aus could supply the HAU8000 directly to IAL should not be accepted. That is for two reasons. First, the contemporaneous correspondence and actions involving Meneses are inconsistent with that contention. Second, Directed made a forensic decision not to call any witnesses from IAL, including Shanks. 1221 The email from IAL on 15 November 2016 makes clear that IAL was seeking a proposal from Directed. It is said that this provides an obvious basis for the telephone conversation between Meneses and Shanks on 18 November 2016. 1222 On 18 November 2016, Directed submits that Hanhwa Korea provided a quotation to Directed for the SuperDAVE which was a "facade". But Meneses says that that submission is not borne out by subsequent events. 1223 On 21 November 2016, which was one business day after the 18 November 2016 conversation, Meneses provided Shanks with Directed's MFL. It is said that this is not the action of someone who had "secured" the SuperDAVE for Hanhwa Aus. 1224 Also on 21 November 2016, a detailed cost analysis of the DIR8000 was prepared by Directed, and Meneses forwarded to it Siolis and Tselepis, noting that the gross profit had been increased back to 30% "as per your request". Two things can be noted. First, again, this is not the action of someone who knew that the SuperDAVE had been secured by an entity other than Hanhwa Korea/Directed. Second, Siolis and/or Tselepis were obviously involved in pricing decisions and discussion. This is relevant to a suggestion made by Directed that Meneses had "intended for [the Directed price] to be substantially dearer than the [price] that had been agreed between Hanhwa Aus and IAL on 18 November 2016". Siolis' and Tselepis' involvement in the pricing decision makes clear that Directed's submission that this was a calculated action by Meneses alone must fail. 1225 In December 2016, there was a meeting with Shanks at which Meneses submitting pricing and accessories. The corollary of Directed's contention is that Shanks was engaging in a charade by having this meeting, which is a contention which is unsupported and should not be advanced given that Directed did not call Shanks. 1226 Meneses says that self-evidently, Directed could not have submitted its quotation to IAL without knowing Hanhwa Korea's price, and so the submission that the Hanhwa Korea quotation was a facade is not maintainable. 1227 There is a later key event on which Directed relies which highlights the untenable case they advance with respect to the DIR8000. Directed alleges that Meneses and others met with IAL on 30 June 2017 to present the HAU8000 and some accessories. Directed alleges that the head to head pricing of the DIR8000 and the HAU8000 was discussed at that meeting. But Directed cannot have it both ways: they allege that the Hanhwa Aus deal with IAL, including pricing, was agreed back in November 2016. If that were the case, there would be no need for the alleged pricing discussion to have occurred in June 2017, and no need for the email from Mills to Lee and Meneses on 29 June 2017. 1228 Whilst on the topic of that meeting, Lee's evidence that Meneses only came in at the end of the meeting should be accepted. The extent of Directed's case to the contrary is a note which records the attendees at the meeting. But the note does not purport to be an exhaustive minute of the meeting, and which does not contain any suggestion that all of those attendees were present from the beginning. 1229 The result of the foregoing is that there is insufficient evidence to conclude that Meneses stitched up the SuperDAVE for Hanhwa Aus in November 2016. 1230 It is also said that in any event, until his resignation it was Meneses' responsibility to attempt to advance new products which Hanhwa would manufacture and Directed would distribute. In the course of performing that role, it is hardly surprising that concerning the development of the SuperDAVE, Meneses engaged with Lee. 1231 Moreover, he says that there was no real opportunity for Directed to supply the SuperDAVE to IAL. And even if there had been, there is no sufficient evidence of Meneses being meaningfully involved in any offending conduct. 1232 I reject Meneses' attempted defence of his position. It is apparent from the chronology I have already outlined that he dishonestly breached his contractual, statutory and fiduciary duties to Directed. I will discuss this further when I discuss the claims against the Hanhwa parties. 1233 Further, Meneses says that by mid-2016 there was no realistic prospect that Directed would be able to supply IAL. He states that it is significant that Directed did not call any evidence from IAL on this point. But it was not necessary for Directed to call any evidence from IAL. The preponderance of evidence shows that Meneses' own wrongful conduct facilitated the diversion of the SuperDAVE. This includes direct evidence from numerous documents. If he wanted to contradict these facts, it was for Meneses to put on such evidence as he saw fit, which might have included evidence from IAL. However, he did not call any evidence of any nature. 1234 It is convenient at this point to say something concerning Directed's case involving alleged misrepresentations to IAL. 1235 Directed alleges that Meneses made certain representations to IAL about his employment status and his role at Hanhwa Aus. But Meneses says that the document which is said to contain those representations does not contain them, and no evidence was given from either Meneses or any IAL representative about any representations. Directed alleges that IAL relied on the alleged misrepresentations in entering into the 2017 IAL supply agreement, ordering and purchasing HAU8000 products, and not ordering the DAVE from Directed. But Meneses says that there is no evidence of that reliance, and nobody from IAL was called to give evidence. 1236 Now Meneses made a phone call to Shanks on 28 June 2017 to set up the meeting at which the Hanhwa parties assert the HAU8000, its accessories and pricing was to be pitched. It is undisputed that Meneses was still employed by Directed at this time, and this conduct itself was a substantial breach of his obligations, with Lee's knowledge and participation. 1237 Meneses and Lee say that Meneses only joined the meeting on 30 June 2017 at the end of Lee's presentation. Meneses also says that he had a conversation with Shanks, Taylor and Lee, after they met with Lee in his absence. 1238 But the minutes taken by IAL do not reflect any such distinction. They record Meneses' presence at the meeting and they similarly record the representation having been made. In relation to the alleged misrepresentations to IAL, the IAL minutes of meeting record Meneses as an attendee. Directed relies on the IAL note of the meeting, "Starts 1 August". 1239 Meneses has given no evidence to support his non-attendance at the meeting when the representation was made. I will draw a Jones v Dunkel inference. Further, Lee's evidence does not accord with the minutes. 1240 Moreover, I agree with Directed that it is likely that IAL relied on the representation. The PPC meeting minutes later in July 2017 make this clear. 1241 When IAL's PPC met at 11am on 19 July 2017 to discuss the formal approval of the HAU8000 the minutes record that "several key staff from Directed OE have moved employment to Hanhwa Australia. Hanhwa Australia officially commences operations from 1 August 2017, however they have been working well before this time in preparation. Their new product has undergone almost two years of development and testing in anticipation of adoption by IAL". 1242 At 1.35 pm on 19 July 2017 presumably shortly after the conclusion of the Isuzu PPC meeting, Meneses called Shanks' mobile number from Keilor and he and Shanks spoke for 15 minutes and 55 seconds. 1243 The inference can be readily drawn that Meneses informed IAL that he had resigned from Directed, was a director of Hanhwa Aus and lawfully able to be involved in the supply by Hanhwa Aus to IAL of the HAU8000 in competition with Directed. Such conduct involved misrepresentation and misleading or deceptive conduct. Lee was also a willing participant and his conduct can be attributed to both Hanhwa Korea and Hanhwa Aus. 1244 In my view, Directed's case against Meneses is made out concerning s 18 of the Australian Consumer Law. Isuzu D-MAX 1245 The allegations against Meneses are that he along with the other respondents developed, marketed, promoted, offered to supply and/or manufactured and supplied an AV unit to Isuzu Utes to the exclusion of Directed. 1246 But Meneses says that no one from IAL has given evidence of there being an opportunity for Directed to supply an AV unit for the D-MAX. Directed had never supplied to Isuzu Utes. Meneses says that the mere fact that, according to Siolis, he had identified that the D-MAX utility was "increasingly popular with customers" does not create any opportunity, and nor does Siolis' assertion that he sent Meneses to speak to a person who was not even an employee of Isuzu Utes. 1247 Meneses says that the absence of a real opportunity is borne out by the fact that Hanhwa has never supplied AV units to Isuzu D-MAX, and does not expect to in the near future. 1248 Meneses says that the claims in respect of D-MAX are illusory, and should be dismissed. There was never any real opportunity in respect of D-MAX, and even if there had been, the evidence is insufficient to establish that Meneses was meaningfully involved in any offending conduct. 1249 I would reject Meneses' arguments. 1250 Siolis identified this opportunity and instructed Meneses to pursue it for Directed. Meneses kept the opportunity to himself by reporting to Siolis that Isuzu Utes was not interested. 1251 Since at least February 2016, Meneses and Lee sought to exploit the opportunity for Hanhwa to supply AV units to Isuzu Utes for its D-MAX vehicles to the exclusion of Directed. 1252 In August to November 2016, Lee, Meneses and Mills jointly prepared a Hanhwa written presentation. In the Hanhwa Korea presentation, Meneses was listed as the contact for "Australia office" (Brooklyn; Leemen email address). Meneses and Mills caused a sample D-MAX unit to be sent to Directed and for it to be given to Summers for testing by him. 1253 Lee confirmed that Meneses presented the D-MAX unit at a dealer showroom in Brisbane in early 2017. Both Meneses, Mills and Sue Mills were aware of and assisted in the preparation of the presentation, which recorded that Meneses was the contact person for Hanhwa Aus and providing his Hanhwa email address, and the mobile number issued to him and paid for by Directed. 1254 The exploitation of the D-MAX unit continued through 2017. Hanhwa's 2017 business plan for Australia records that the development of the HAU8100 "for Isuzu Ute (D-MAX pickup truck) is in progress, expecting first shipment in 2017". 1255 Further, Mills was involved during the period of his employment by Directed. 1256 Now even if the Hanhwa parties were not successful in winning this business, it was an opportunity that Directed lost through Meneses', the Hanhwa parties' and Mills' misconduct. 1257 Meneses argues that there was no real opportunity. Further, it is said that the evidence is insufficient to establish any meaningful involvement by him in any offending conduct. Further, there is no misuse of confidential information. It was part of his role for Directed to discuss such opportunities with its supplier, Hanhwa. 1258 But Meneses expressly emailed Lee that he wanted to divert the D-MAX opportunity from Directed. He told Lee that in effect Hanhwa Aus had to land a product such as D-MAX before letting on to Directed. He and Lee made a presentation of the HAU8100 in January 2017. And he told Siolis that he had been unsuccessful in his approaches to Isuzu Utes. Hanhwa 6160 1259 It is said that Meneses along with the other respondents developed, marketed, promoted and offered to supply the Hanhwa 6160 unit to Mercedes to the exclusion of Directed. 1260 Now one of the matters on which Directed relies is an email exchange between Meneses and Lee. It is alleged that Meneses approved a proposed rendering of the Hanhwa 6160 unit. But the document identified as the rendering is also alleged to be a rendering of the RA7000 unit. Further, there is no Hanhwa 6160 unit. 1261 Now the further conduct on which Directed relies concerns Meneses emailing to Lee line drawings for AV units and telematics units which Directed was supplying to Mercedes. Slade had created those drawings. But Meneses says that the relevant email demonstrates that Meneses had sent the drawings from his Directed email address to Daimler group representatives. The email to Lee was simply a forward of an earlier email from Meneses to Mercedes, attaching the drawings. 1262 So, Meneses says that it can be inferred that Meneses' provision of the relevant drawings to Lee was done in the context of a communication between a distributor (Directed) and its supplier (Hanhwa Korea) in respect of a customer (Mercedes). Meneses says that there is no evidence to the contrary beyond Directed's assertion, and no witness from the Daimler group was called. 1263 Further, Meneses says that the fact that he referred to Lee the opportunity to supply a new unit to Mercedes is consistent with Meneses' role. It involved the provision of such opportunities to Directed's supplier, Hanhwa Korea. 1264 Meneses says that there was no nefarious purpose in respect of the Hanhwa 6160. And he says that there is no sufficient evidence of him being meaningfully involved in any offending conduct. 1265 I would reject Meneses' defence. 1266 In my view, during February to August 2017, Hanhwa with Meneses' knowledge and involvement, developed an AV unit to supply to Mercedes to replace the DIR6160 AV unit that Directed was then supplying. They needed a telematics unit and telematics functionality. The Hanhwa parties proposed to integrate the RA7000 telematics unit with the Hanhwa 6160 unit for supply to Mercedes. 1267 In March 2017 the Hanhwa parties worked on extracting CAN Bus data in order to provide telematics functionality for its proposed AV unit, including by Shin and one of its other employees extracting CAN Bus data on a Mercedes truck at Directed's premises. 1268 In early 2017 Lee told the Gridtraq parties that he had received an enquiry relating to the supply of an AV unit to Mercedes. I infer that this was the 6160 opportunity. 1269 Further, during the Brisbane truck show in May 2017, Dylan Hartley emailed CAN Bus information and parameters for Mercedes trucks. 1270 Now it appears that the attempt to supply a new AV unit to Mercedes to replace Directed's DIR6160 was overtaken by the successful supply by Hanhwa Aus of the LM19M to replace Directed's DIR6160. But the attempt was a breach by Meneses of his obligations in which the Hanhwa parties knowingly participated. Hino 1271 It is alleged that Meneses along with the other respondents provided confidential information to Lee and took steps to exploit an opportunity to supply a new Hino unit to the exclusion of Directed. 1272 Now Meneses says that the emails on which Directed relies largely reflect Meneses bringing to Hanhwa Korea's attention the possibility of developing a unit for Hino. So, for example, on 6 July 2017 Lee sent an email to Meneses (at his Directed email address) asking his thoughts about the rendering for the 8-inch unit. 1273 Meneses says that this is a typical example of Meneses performing his job for Directed, namely, to develop business by bringing to Hanhwa's attention the possibility of supplying new units to OEMs, which would be distributed by Directed. 1274 But in any event, Meneses says that in respect of Hino, each of Directed and Hanhwa Aus participated in a tender for Hino's work, and Directed was successful. Hanhwa Aus has never supplied to Hino directly. 1275 So, Meneses says that there was no diversion of any opportunity from Directed in respect of the Hino. And there is no sufficient evidence of Meneses being meaningfully involved in any offending conduct. In any event, Directed won the tender, and suffered no loss. 1276 Now I reject Meneses' assertion that this is a typical example of Meneses performing his job for Directed, namely, to develop business by bringing to Hanhwa's attention the possibility of supplying new units to OEMs which would be distributed by Directed. The inference is more available that his conduct was in compliance with his express employment obligations with Hanhwa Korea or in performance of his obligations under the secret commissions agreement. 1277 In early 2017, Hino told Jaffe of Directed that Hino wanted a new, upgraded Hino unit with a bigger screen to replace the AV unit that Directed was then supplying. The Hanhwa parties and Meneses sought to exploit the opportunity to the exclusion of Directed with a version of the DIR8000 called the HAU8200. Between at least April 2017 and September 2017, the Hanhwa parties worked on the design of the HAU8200 with Meneses' knowledge and involvement. They also needed a telematics unit and telematics functionality to work with the HAU8200. 1278 Further, Lee met with Hino in May 2017 at the Brisbane truck show and discussed the supply of the unit. 1279 Further, during his restraint period, Meneses continued to approach Hino on behalf of Hanhwa Aus to supply Hino the HAU8200. 1280 Now although Hanhwa was apparently not successful in winning this business, it was an opportunity that Directed was deprived of through Meneses' and the Hanhwa parties' misconduct. Now it is said that the Hino opportunity was not diverted. Directed pitched a rival product which was apparently accepted. But the evidence demonstrates that an opportunity arose in early 2017 which Directed could and should have pitched for. Had Meneses and Hanhwa not acted wrongfully, Directed would have done so with a version of the DIR8000 with a different screen. Instead it found itself more than 12 months later competing with Meneses and Hanhwa with a new unit which Directed had to develop from scratch. It was competing with the LM18H, which was the modified unit that Directed had spent considerable time and money developing. ICL 1281 It is said that Meneses forwarded emails to Lee in October 2016 which Meneses had exchanged with ICL between January and October 2015, and had with other respondents sought to develop an opportunity to supply electronic products to ICL to the exclusion of Directed. 1282 Now Meneses says that he explored the possibility of Directed supplying DAVE units to ICL between January and October 2015. Appropriately, given that it was his role, he says that he kept Hanhwa Korea informed of the opportunity. He says that these interchanges concluded in October 2015, when Meneses wrote to Shanks of IAL to say that the meeting with ICL, which had occurred on 16 October 2015, had gone very well. 1283 Further, he says that nothing is alleged by Directed to have occurred for nearly a year. Then in September 2016, Meneses forwarded the emails between him and ICL representatives to Lee. But he says that his own email is innocuous. It attaches an email chain which concerns meeting arrangements in Japan, and some very high-level questions which ICL had asked in 22 January 2015. Lee's evidence is that the email was sent in response to a request that Meneses provide contact details for someone at ICL. 1284 Meneses says that there was no opportunity to exploit. And the steps which were subsequently taken by Hanhwa Korea or Hanhwa Aus did not involve Meneses in any meaningful way; for example, Lee met with a different trade representative of ICL, and Meneses was not involved. Further, he says that in so far as the steps did involve Meneses prior to his resignation, they were minimal. 1285 Meneses says that there was no nefarious conduct in respect of ICL on his part. Nonetheless, if there was some opportunity, and it was diverted from Directed, he says that the evidence establishes that his role was minimal. 1286 But I would reject Meneses' defence. 1287 This was an opportunity that Directed had to supply its products to an international channel for Isuzu products represented by ICL. 1288 ICL first approached Directed in 2015 about the possibility of supplying its DAVE unit to Isuzu in other countries. In 2015, Meneses explored the opportunity, including travelling to Japan, at Directed's cost, and shared it with Hanhwa Korea. YS Lee acknowledged that at the time it was made, this disclosure and the opportunity were confidential. 1289 Soon after the formal resolution at Hanhwa Korea to exploit the SuperDAVE to the exclusion of Directed and to change the name of the DIR8000 to the HAU8000, on 14 October 2016 Meneses forwarded the emails between himself and ICL representatives to Lee. 1290 In the period from late 2016 to at least August 2018, Lee and Meneses actively pursued ICL to supply the HAU8000 with a different sized screen and versions derived from the DIR1024 and other units and accessories. 1291 The day of the execution of the search order, Meneses and Lee were in Japan and were to visit ICL that day. 1292 Further, Meneses had employment and associated obligations up to November 2017, his restraints and his intimate and improper involvement in Hanhwa Aus. He had no proper basis to send ICL contact details to Lee. Moreover, Meneses was specified as Hanhwa Aus' Australian contact in the presentation for ICL emailed on 19 June 2017, whilst he was still employed by Directed. 1293 It is not clear whether Hanhwa has been successful in winning this business. But I agree with Directed that the ICL business represented an opportunity that Directed lost through Meneses and the Hanhwa parties' misconduct. 1294 Further, the claim does not depend on Directed having previously supplied products to ICL, but rather that the opportunity to exploit was improperly diverted away from Directed. RA7000 1295 It is said that Meneses diverted at least two other opportunities away from Directed to the Hanhwa parties which they sought to satisfy with the RA7000 AV unit and/or RA7000 telematics unit. 1296 It is said that in early February 2017 Meneses sent the Mercedes Sprinter opportunity to Hanhwa to exploit with the RA7000 AV unit. Meneses actively put Directed's employees off the pursuit of the Mercedes Sprinter opportunity. 1297 The Mercedes Sprinter opportunity was received by Directed from Mercedes. There is no reason why Directed could not have developed or sourced a unit to meet it and achieved sales arising from it. 1298 It is said that the second opportunity diverted which was to be met by the RA7000 was an opportunity identified by Meneses on 20 March 2017 to supply a product to Australia Post. Meneses sent the RFI to Allen Hartley. 1299 In my view Meneses diverted these opportunities. But do these actions demonstrate that Meneses was involved in the RA7000 project? 1300 In this context it is said to be noteworthy that documents relating to the RA7000 and the RA7000 telematics unit were found in Meneses' home during the execution of the search order. But this is of course all after the event. 1301 Now Directed's allegations against Meneses in respect of the RA7000 are that since March 2015, he has been involved in a joint venture with the Gridtraq parties, the Hanhwa parties and others for the development and supply of the RA7000 unit. But I do not accept the breadth of Directed's case in this respect. 1302 Indeed, each of the relevant Gridtraq and Hanhwa personnel who were involved in the project say that Meneses was not involved in the project. And there are no documents recording Meneses' involvement in the various meetings nor other relevant documents. 1303 Further, there is no proper reason to doubt Allen Hartley's evidence that Meneses was not involved in the RA7000. Allen Hartley had no motivation to cover for Meneses. On his own evidence, there was bad blood between Hartley and Meneses. Further, Directed overreaches in respect of the evidence that Summers gave about Meneses telling him that Lee and Allen Hartley had met in a café in Point Cook. Further, as for the email forwarded by Meneses on 20 March 2017, Hartley's evidence was that he understood that Lee had asked Meneses to send it to him and there is no basis to say that the absence of content in Meneses' email suggests additional face to face contact, presumably with Allen Hartley. 1304 In short, Meneses was not relevantly involved in the RA7000 in any actionable way. But he did divert the two opportunities. I will return to the detail of this later. Polstar 1305 It is alleged that Meneses along with other respondents has been involved with Polstar in the development and supply of navigation software. But according to Meneses, Lee's evidence establishes that the matters on which Directed relies are either not made out in respect of Meneses or his involvement was de minimis. Further, Meneses has made the following points. 1306 First, Meneses did not attend the alleged meeting with Polstar in October 2016. 1307 Second, the meeting in February 2017 was not, as alleged by Directed, concerned with the HAU8000, but rather to discuss another head unit product for Directed. 1308 Third, the allegation that Meneses told Mohos of Polstar that Hanhwa was taking the SuperDAVE from Directed and not to discuss it with Siolis is not established by the relevant documents nor by the evidence. 1309 Fourth, by the time of many of the communications there was no prospect of Directed proceeding with the supply of the SuperDAVE to IAL. 1310 Fifth, the evidence of Summers does not establish that the test drive conducted by Summers was done at the request of Meneses. 1311 Finally, Siolis' evidence is that he was also meeting and communicating with Mohos of Polstar in the 12 months following early 2016. In those circumstances, it is unclear how Directed could have been excluded from whatever opportunity existed with Polstar. 1312 Meneses says that Directed was not excluded from any Polstar opportunity. And Meneses says that his involvement with Polstar was generally minimal. Further, he says that there is insufficient evidence to establish that he was an accessory to Hanhwa's alleged breaches of contract. 1313 I would reject Meneses' defence. 1314 Meneses' involvement is apparent from Mohos' written acknowledgement to Lee on 27 April 2017 that he would not discuss Polstar's engagement with Hanhwa with anyone from Directed other than Meneses. 1315 Further, reference should also be made to Lee's 27 November 2017 email when he updated Mohos of Polstar, which was copied to Meneses, conveying Hanhwa Aus' intention to exploit Meneses' relationships with truck customers, and pursue all of them to the benefit of Hanhwa Aus. This was the communication by which it was made clear that matters would not be disclosed to Siolis. 1316 Polstar's importance stems from the use of its navigation software in the HAU8000 and in the later LM series. The significance of Polstar to the overall product, and the need for secrecy, are important in establishing wrongdoing. 1317 Further, as to Meneses' claim that his involvement with Polstar was generally minimal, he provided no evidence to justify this assertion. 1318 The Polstar navigation software for the HAU8000 was developed with the assistance and input from Meneses, and by Meneses involving other Directed employees (Summers and Palone). This assistance addressed the specific requirements for truck navigation software and IAL's particular requirements in that regard. The Polstar software was tainted by reason of this involvement. 1319 This same Polstar software was used for mapping in subsequent AV units exploited by Hanhwa Aus. The short timelines for the development of those units, with Polstar mapping software, means that the Polstar software developed for the HAU8000 was merely modified to suit those subsequent LM units. Girgis gave evidence to this effect. Subsequent versions were accordingly tainted. 1320 It is clear that communications between Lee, Meneses and Mohos related to using Polstar as the navigation provider for the HAU8000. 1321 Now the Hanhwa parties submit that there was no use of confidential information in development of the navigation software and that it is not shown that Lee had relevant knowledge, or brought about Meneses' conduct to make him or the Hanhwa parties liable as accessories. 1322 But the intimate involvement of Lee is demonstrated by the documentary evidence and his active involvement with Meneses in ensuring secrecy, and in the knowledge that this was occurring whilst Meneses was employed by Directed. This is sufficient to constitute them knowing assisters in Meneses' fiduciary breaches, involved in his statutory breaches and inducers of Meneses' breach of contract. 1323 Now it is said that emails such as that of 27 April 2017 re "secrecy" were sent by Mohos and so do not prove what Meneses said. But this ignores the fact that Meneses was copied in to the email at jm@hanhwa.com.au, yet has given no evidence to dispute its contents; and neither has he tendered an answering email supporting the proposition that he did dispute what was said. 1324 Now it is said that the evidence of Summers does not establish that his test drive was done at the request of Meneses. But Summers' initial affidavit said that this was done at Meneses' request and believed that it was for the purposes of Directed's business. In any event, the test drive was followed up by an email from Mohos discussing the test having been conducted with Summers. Meneses was an addressee of the email commencing "Dear Grace, Mark [Summers] and Johnny [Meneses]". The subject line was "Test Drive with Directed – Meeting Minutes". No contrary evidence has been led by Meneses. 1325 In my view Meneses breached his contractual, fiduciary and statutory duties. And there was secrecy and deception involved as between Meneses and Lee in their dealings with Mohos and the need not to let Siolis know of their conduct. Hanhwa new AV unit 1326 It is alleged that Meneses by his participation in certain conduct concerning a new Hanhwa AV unit, induced Hanhwa Korea and Leemen Korea to breach the Hanhwa Enterprise Agreement or the Hanhwa Korea Agreement. 1327 Now Meneses says that the only allegations which appear to involve him are an email which Meneses sent to Mercedes on 25 September 2018, an email from Mohos of Polstar to which Meneses was copied in October 2018, an email from Ms Rho of Polstar to which Meneses was copied in November 2018, and a broad allegation that Meneses (with Lee and Hanhwa Aus), from 27 September 2018 to October 2018 took steps to market to UD. 1328 Meneses says that the absence of any detailed allegations against him underlines the absence of force in this part of the claim. Not only are only four minor allegations made, but they are made in respect of a period more than 12 months after Meneses resigned from Directed. 1329 Meneses says that there is insufficient evidence of him having been meaningfully involved in any conduct concerning the new AV unit. And in any event, the alleged conduct was long after his resignation. Further, there is insufficient evidence to establish that Meneses was an accessory to Hanhwa's alleged breaches of contract or received any proceeds from the alleged conduct. 1330 Let me deal with some facts. 1331 Shortly after these proceedings commenced, the preponderance of evidence shows that Meneses and Lee were approaching every customer of Directed they could to promote competing products including the LM series. 1332 Further, Meneses undertook many actions in the period of 6 months following 7 November 2017 in breach of his restraint. 1333 In relation to IAL, he sought to retain and/or win its business for Hanhwa Aus by contacting all of Shanks, Humphries, Topping, Darren Pottage and Fabio Betancur, updating them on his trip to ICL in Japan and being involved in the communications to IAL about the LM18I. 1334 In relation to Hino, he sought to retain and/or win its business for Hanhwa Aus by contacting and meeting Petrovski, Bill Gillespie and Gibson of Hino, presenting Hanhwa Aus' offer to supply, and being directly involved in the communications to Hino about the LM18H including offering to send working samples in February 2018. 1335 In relation to Mercedes and Fuso, he sought to retain and/or win its business for Hanhwa Aus by contacting and meeting Parikh, Hauke Ahrens and Romesh Rodrigo of the Daimler group, presenting Hanhwa Aus' offer to supply, and being directly involved in the communications to the Daimler group about the LM19M and LM19F. 1336 As I have previously indicated in more detail, the LM18I (IAL), LM19M (Mercedes), LM19F (Fuso), LM19U (UD), and the LM18H (Hino), all utilised the back end of the HAU8000 with minor modifications and different fascias and screens. These AV units were also supplied to the OEMs with the same accessories as had been supplied to Directed for use with other AV units supplied by Hanhwa Korea to Directed and/or developed by it for supply to IAL with the DIR8000. They were also supplied with versions of the Polstar navigation software developed for the HAU8000. 1337 In my view the LM units and their accessories appropriated the development work done by Directed on the DIR8000 and its accessories. Each of these units (except the LM18H for Hino) has led to the cessation of supply by Directed of the AV units and their accessories that it was then supplying to the OEMs concerned. 1338 Now Meneses submits that there is insufficient evidence of him having been meaningfully involved in any conduct concerning the new AV unit or to establish that he was an accessory to Hanhwa's alleged breaches of contract. 1339 But Meneses was involved in the new Hanhwa AV unit conduct. He provided feedback internally in relation to the LM18I and its offering by Hanhwa Aus to IAL, actively promoted the LM18H to Hino, actively and successfully promoted the LM19F and LM19M to the Daimler group and actively and successfully promoted the LM19U to UD. 1340 Further, some of this conduct was also during the period of his restraint. Misuse of confidential information 1341 Let me now turn to the question of the misuse of confidential information. And let me begin with the category of information concerning the availability of business opportunities. Business opportunities 1342 Meneses says that it is conceptually difficult to understand how a business opportunity could constitute confidential information of Directed. The opportunity is known outside Directed's business, including by the relevant potential customer and potentially by other suppliers, and Directed put on no evidence to demonstrate that the relevant opportunity was confidential or exclusive to it. Indeed, Directed worked with other manufacturers from time to time, and has not alleged that it considered itself bound to Hanhwa in respect of any opportunities. 1343 First, as to the SuperDAVE opportunity, Meneses says that he did not take or provide the SuperDAVE opportunity to Hanhwa. On Directed's own case, by 2014 and prior to the alleged wrongful conduct by Meneses, Directed had already introduced to Hanhwa Korea the opportunity to supply the SuperDAVE to IAL. 1344 Further, he says that many of the allegations in paragraph 28 of the Schedule 1 Particulars to the 3FASOC do not relate to Meneses. And in respect of those which do refer to Meneses the following may be noted. First, many do not refer to any taking or provision of confidential information. Second, 28(e) refers to Meneses emailing to Lee in October 2016 images of the CAN reader tool used by Directed. But Meneses says that there is nothing impermissible about that. Lee's evidence is that Hanhwa required access to the CAN Bus data to enable camera images to be displayed on the screen of its AV unit. Third, 28(r) cross-references various documents, none of which show any disclosure of confidential information by Meneses. Fourth, 28(s) cross-references various other documents, but none of them show the disclosure of confidential information or what such information is said to be. Fifth, 28(t) cross-references various documents, but only two are communications from Meneses and neither of which show the disclosure of confidential information. Sixth, it said that none of the documents referred to in 28(y) were confidential to Directed. Seventh, it is said that none of the documents referred to in 28(z) were communications from Meneses, and none of them show the disclosure of confidential information by him. 1345 Further, Meneses says in respect of the allegations in paragraph 29 of the Schedule 1 Particulars which relate to him that many do not allege any taking or provision of information by Meneses. Further, 29(f) cross-references numerous documents, of which 4 contain communications from Meneses. He says that none of them evidence him disclosing confidential information. Further, he says that the allegation that he forwarded a particular module specification to Polstar is correct, but the specification is a Hanhwa Korea document, not a Directed document. 1346 Further, he says that as to the other paragraphs in the Schedule 1 Particulars, being 42, 44, 45 and 46, many contain no allegations against him. Further, 46(k) refers to Meneses' email to Lee attaching the Mercedes drawings. But that email was simply forwarding an earlier email which Meneses had sent to Mercedes, attaching the relevant drawings. 1347 Meneses says that the result is that none of the confidential information claims against Meneses in respect of the relevant business opportunities are made out, and the SuperDAVE claim in particular is without substance. 1348 Second, as to the D-MAX opportunity, Meneses says that the alleged Directed confidential information is that Directed identified an opportunity to supply an AV unit suitable for D-MAX utility vehicles. But he says that there was no real opportunity and thus no confidential information. But even if there were, it was Meneses' role to discuss those types of opportunities with Directed's supplier. 1349 Third, as to the Hanhwa 6160 opportunity, the Directed confidential information is alleged to be that there was an opportunity to supply Mercedes with a newer advanced AV unit. But Meneses says that the referral of such opportunities to Directed's supplier was part of his role. And in any event, it has not been established that the so-called opportunity was either confidential or exclusive to Directed. 1350 Fourth, as to the Hino opportunity, Meneses says that none of the confidential information claims against Meneses in respect of the so-called Hino opportunity have been made out. 1351 Fifth, as to the ICL opportunity, Meneses says that the references to paragraph 56 of the Schedule 1 Particulars in so far as they relate to Meneses do not establish any breach of confidence. First, 56(a) does not identify any confidential information said to have been disclosed by Meneses to anyone. Second, 56(b) refers to emails sent by Meneses to Lee about meetings with ICL a year earlier, and that provides no basis for an inference of an improper purpose, given Hanhwa's role as Directed's supplier. Third, 56(l) indicates that Meneses was not involved in the discussions which Lee was having with representatives of ICL. Fourth, 56(n) does not provide a basis for concluding that Meneses was aware of the content of the presentation, or the attribution of his contact details. And in any event, he says that there is nothing improper about Lee anticipating that Meneses would join Hanhwa Aus. And fifth, there is insufficient evidence of Meneses ever providing the information sought. Accordingly, he says that none of the confidential information claims against him in respect of the so-called ICL opportunity have been made out. 1352 In my view Meneses clearly had and misused Directed's confidential information relating to these opportunities. I have already canvassed the relevant evidence. 1353 I have set out my summary findings in the tables forming annexures E and F to these reasons. I will hear further from the parties as to whether at this stage further more detailed findings need to be given on these matters given the nature of this first stage trial. But as I say, I have already recited the relevant facts supporting my conclusions. Computer drives 1354 Meneses disputes the relevant breaches. Meneses says that the fact that he had certain information at his home is not surprising: he worked at Directed for a long period of time, travelling frequently, and it can be expected that copies of certain information. Taking documents home is not, of itself, a sufficient basis from which to establish unauthorised use or disclosure of material. To the extent that Directed's case does not rely on inference, it is unclear on what evidence Directed positively relies to establish unauthorised disclosure or use of confidential information. I reject these points. 1355 I have set out my summary findings in the tables forming annexures E and F to these reasons. Mercedes data 1356 As to Mercedes data, the relevant document is alleged to be a standard which provides "standardised codes for CANbus that are commonly agreed upon and used by heavy and commercial vehicle makers". Given the standardised nature of the document, Meneses says that it is not apparent how it is alleged to be confidential to Directed. I reject this point. 1357 I have set out my summary findings in the tables forming annexures E and F to these reasons Pricing information 1358 Only three sub-paragraphs of the Schedule 1 Particulars concern communications sent by Meneses. Meneses makes the following points. As to 99(d), the evidence does not establish that the HERE Maps' pricing was confidential to Directed. As to 99(h), the documents alleged are not pricing lists. Rather, they were documents produced at the request of Mercedes, and thus are not confidential. As to 103, it is unsurprising that Hanhwa Aus made a pitch to a customer which was cheaper than Directed's, as Hanhwa Aus did not have to incur the further cost of a third-party distributor (i.e. Directed) imposing its own profit margin. In any event, Meneses says that Directed's cost prices were not confidential because they involved the prices which Hanhwa Korea charged Directed for supply. I reject these points. 1359 I have set out my summary findings in the tables forming annexures E and F to these reasons. Financial, pricing, stock and purchase order information 1360 Meneses says that there is no evidence of Meneses providing pricing information to the Hanhwa parties. In so far as stock or purchase order information is concerned, the documents particularised, to the extent they involve Meneses, should be viewed through the prism of the Hanhwa/Directed relationship. They are documents produced and exchanged in the ordinary course of the supplier/distributor relationship, dealing as they do with stock levels, forecasts and other matters which are a necessary part of that relationship. I reject these points. 1361 I have set out my summary findings in the tables forming annexures E and F to these reasons. Directed customer portal website and login details 1362 Meneses says that Directed has not established any unauthorised or improper use of its customer portal website by Meneses. I disagree. Directed Insurance Brokers Certificate of Insurance 1363 Directed has established relevant misuse. Now Meneses says that even if it could be proved that the Certificate of Insurance was provided to Lee in circumstances which were a breach of the confidentiality obligations, it is not apparent what loss Directed could have suffered as a result. Whether that is so in my view is not a matter for this first stage trial. Employee information 1364 Meneses says that there is no evidence of use. In any event, this information was already known to Meneses. Floudas' evidence was that all managers received information about the salaries of those whom they supervised. Further, Meneses says that it is not apparent what loss Directed could potentially have suffered by the use of the information. I reject these points. 1365 I have set out my summary findings in the tables forming annexures E and F to these reasons. The use of the pricing information concerning navigation software (Polstar) 1366 On this aspect it appears that the relevant confidential information relied upon is that particularised in paragraphs 159 and 160 of the 3FASOC and relevant aspects of the Schedule 1 Particulars. Now Meneses says that item 22 does not disclose any evidence of Meneses' making improper use of the relevant information, and item 23 does not contain any information about navigation software costs. Further, he says that the email from Mills to him in January 2017, when he was employed at Directed, does not evidence the disclosure of any confidential information by Meneses. I reject these points. 1367 I have set out my summary findings in the tables forming annexures E and F to these reasons. Seagate 2TB drive 1368 Meneses says that the mere fact alone of Directed confidential material having been found at his premises does not give rise to a breach of equitable, statutory or contractual duties of confidence by him. He says that there is no evidence of the material on the Seagate 2TB drive found at Meneses' property having been deployed by or transferred to Hanhwa. He says that the material kept by him were back-up copies. And the inference that Meneses was backing up documents is supported by the fact that there were three copies of the K drive on the Seagate 2TB drive, as well as the version alleged to have been copied by Summers. It is consistent with careful and regular backing-up. I reject these points. 1369 I have set out my summary findings in the tables forming annexures E and F to these reasons. Red hard drive and USB conduct 1370 I accept the inadmissibility of the Mills affidavits against Meneses on these aspects. Nevertheless in my view Directed has made out its case against Meneses as I have set out in annexure E to my reasons. General 1371 As I have indicated, I have attached to my reasons an annexure E headed "Breach of Confidence/Copyright Table" which has been sourced from Directed's submissions and modified by me, setting out aspects of its misuse of confidential information case and its copyright infringement case concerning the parties, which I have largely accepted save for the Gridtraq parties. 1372 I have also attached to my reasons an annexure F which has also been sourced from Directed's submissions and modified by me, setting out aspects of its misuse of confidential information case concerning pricing, financial and salary information, which I have largely accepted save for the Gridtraq parties. 1373 As to the pricing information and documents set out in annexure F to these reasons, Meneses' tabulated response, which it is convenient to set out, is as follows together with my ruling: Item Doc ID Response 6.1.1(a) DIR.BROO.0320.0001 No evidence of Meneses having any involvement or knowledge about the version of this document found at Brooklyn. I agree with Meneses. 6.1.1(b) DIR.HOPP.0298.0001 Document found at Mills' house; no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.1(c) DIR.BROO.0099.0001 No evidence of Meneses having any involvement or knowledge about the version of this document found at Brooklyn. I agree with Meneses. 6.1.1(d) REL0000040538 These documents were used by Meneses to provide quotations to IAL on 8 December 2016. Meneses was in breach of confidence. 6.1.1(e) HAN.001.025.3739 No evidence of Meneses having any involvement or knowledge about the version of this document discovered by Hanhwa. I agree with Meneses. 6.1.1(f) REL0000086145 Document not confidential: NavNGo provides its pricing information to anyone. I disagree with Meneses' defence. 6.1.1(g) DIR.BROO.0262.0001 Document not used by Hanhwa Aus. I agree that no breach by Meneses. 6.1.1(h) REL0000095017 Email sent by Mills to himself. No evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.1(i) IZU.002.001.0026 No evidence of prices being used "for the purposes of a competitive pitch", or having been provided by Meneses. I disagree with Meneses. 6.1.1(j) DIR.BROO.0320.0001 As per 6.1.1(a) above. HAN.001.034.7629 Mills emailed document to himself; no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.1(k) DIR.HOPP.0238.0001 Document found at Mills' premises. No evidence of Meneses' involvement or knowledge. I agree with Meneses. 6.1.1(l) REL0000085691 Meneses emailed Daimler group representatives with part number updates. The attachments contained no pricing information. It can be inferred that the information concerned parts which Hanhwa Korea was providing to Directed, and thus was provided to Lee in the ordinary course of the Hanhwa/Directed relationship. I disagree with Meneses. 6.1.1(m) REL0000095558 There is no evidentiary basis for the assertion that this document was likely supplied to Mills by Meneses. The document contains Mercedes New Zealand part numbers and prices: there is no evidence of how this document was used. I disagree with Meneses. 6.1.1(n) REL0000095744 There is no evidence of Meneses preparing or being involved with this document. I disagree with Meneses. 6.1.2(o) DIR.DIRS.0418.0001 Document found at Mills' house; no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.3(p) REL0000088313 Document discovered by Mills. Meneses was not involved in this email chain. There is no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.3(q) REL0000088125 Document discovered by Mills. Meneses was not involved in this email chain. There is no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.3(r) MIL.004.00305.0001 HAN.001.034.7070 Meneses was not involved in these email chains. There is no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.3(s) REL0000088113 Document discovered by Mills. Meneses was not involved in these email chains. There is no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 6.1.3(t) DIR.DIRS.0271.0001 There is no evidence of the information ever being used by Hanhwa or by Meneses. Whether that is so, this was a misuse by Meneses. 6.1.3(u) REL0000088402 Document discovered by Mills. Meneses was not involved in the message. There is no evidence of Meneses having any involvement or knowledge. I agree with Meneses. 1374 Meneses' tabulated response to the part of the table concerning financial and sales information is as follows: Item Doc ID Response 6.2.1(a) HAN.001.023.1015 The final prices provided to IAL were submitted on 8 December 2016. Accordingly, it is unclear this document, which purports to contain prices from August 2016, could have had any useful value. Meneses' response is no answer. 6.2.1(b) REL0000060981 Sent to Meneses while at Directed, to his Directed address. There is no evidence of Meneses' knowledge or involvement in Mills' decision to also copy it to Mills' personal email address. OES.0002.0031.5750 I agree with Meneses. 6.2.1(c) DIR.BROO.0262.0001 See 6.1.1(g) above. This is likely Mills' misuse. 6.2.1(d) DIR.BROO.0262.0001 See 6.1.1(g) above. This is likely Mills' misuse. 6.2.1(e) DIR.ASPE.0256.0001 Hanhwa Korea supplied the stock to Directed, and so the information in the document is of no use to Hanhwa Aus or Hanhwa Korea. HAN.004.005.0311 Meneses' response is no answer. 6.2.2(f) HAN.004.006.0405 This document is not confidential: it is a document in which Directed sets out its forecasts for the purposes of its suppliers. Meneses' response is no answer. 6.2.2(g) REL0000086316 Lee's evidence was that this document was prepared to assist Directed with its forecasting. HAN.001.029.1889 In any event, the properties of the document reveal Mills' involvement with the document, but there is no evidence of Meneses' involvement or knowledge. I agree with Meneses. 6.2.2(h) REL0000086259 This document records Directed's intended purchases from Hanhwa Korea and Leemen Korea, and so the information in it is not confidential, as it would have been provided to Hanhwa Korea. Meneses' response is no answer. 6.2.2(i) REL0000086260 There is no evidence as to how Directed's stock levels are of any commercial value to Hanhwa. Meneses' response is no answer. 6.2.2(j) REL0000086185 There is no evidence as to how Directed's New Zealand stock levels are of any commercial value to Hanhwa. Meneses' response is no answer. 6.2.2(k) REL0000097950 The document was discovered by Mills; there is no evidence of Meneses' involvement or knowledge of the document. I agree with Meneses. 6.2.3(l) HAN.004.003.0009 There is no evidence as to how Directed's stock levels are of any commercial value to Hanhwa. Document discovered by Hanhwa: there is also no evidence of Meneses' involvement or knowledge. I agree with Meneses' last point. 6.2.3(m) HAN.001.026.7187 Lee's evidence was that Hanhwa did not receive this document from Meneses. I agree with Meneses. 6.2.3(n) DIR.DIRES.0254.0001 There is no evidence as to how Directed's account statements are of any commercial value to Hanhwa. Hanhwa was aware of Directed's customers, because it supplied them. Meneses' response is no answer. 1375 More generally in my view there is an air of unreality to Meneses' assertions, particularly as he declined to give evidence. 1376 First, any available adverse inference can be drawn against him. 1377 Second, I would readily infer that what Mills did was with the encouragement if not the request of Meneses. 1378 Third, the nature of the documents referred to and the circumstances of their communication, from which I am entitled to draw relevant inferences, readily make out Directed's case. 1379 Fourth, whether the information was or was not valuable to the Hanhwa parties or anyone else does not deny the misuse of confidential information. The question of value may go ultimately to the quantification of any monetary relief. Meneses says that to the extent that any of the claims are established, there is insufficient evidence of any loss having been suffered by Directed. But I would note at this point that the trial only proceeded on liability with some quantum questions concerning the secret commissions case. 1380 Fifth, as to the computer drives, Meneses asserts that there is no evidence of the Hanhwa parties making any use of the material which was stored on the relevant computer drives. That is incorrect. 1381 Sixth, Meneses does not take issue with the fact that he had information at home. His excuse is that it was not surprising. His counsel explained that he worked at Directed for a long period of time, travelling frequently, and it can be expected that copies of certain information would be kept at home. But he says that this is not a sufficient basis from which to establish unauthorised use or disclosure of material. But the difficulty with this submission is that Meneses has failed to provide any evidence in support of it. 1382 Seventh, there is considerable evidence of Meneses communicating to Lee in relation to matters and opportunities which should not have been brought to his attention. 1383 Generally, I agree with Directed that the emails Meneses sent to Lee, the requests he made from his own staff for documents, the timing of those requests in connection with the development of the HAU8000, and the extent of the documents in his possession, all point to a considerable misappropriation and misuse of Directed's confidential information by Meneses to say the least. Breach of copyright 1384 Directed alleges that Meneses has reproduced Directed's works and thereby infringed its copyright. Directed says that it was an infringement by reproduction of the works in a material form by Meneses forwarding the relevant documents to Mills or to Lee or to his own home email address, if it was done without the authority of Directed. I am not at all convinced of Directed's case against Meneses on this aspect and will need to hear further from the parties. 1385 Further, no specific allegations are made against Meneses in respect of the Directed Specification. In any event, the extent of the allegation in respect of the Directed Specification appears to be related to emails which Meneses either sent or to which he was a party. Two of those emails were sent to Hanhwa in 2015 and 2016, and can be inferred to be an ordinary incident of the Hanhwa/Directed relationship. The third email only involved Meneses as a "CC" recipient. 1386 Accordingly, I am not satisfied that Directed has made any case out against Meneses in respect of the Directed Specification. 1387 As to CAN Bus information and vehicle parameters, I am also satisfied that Directed has made out its case against Meneses. Solicitation of Directed employees 1388 In starting up Hanhwa Aus, Meneses and Lee together solicited eight of Directed's employees to leave Directed's employ and join Hanhwa Aus. They successfully recruited Mills and Palone. Meneses was the primary contact with the other employees. 1389 Lee encouraged him to do so and together they prepared relevant documents, being letters of offer, employment agreements etc. In doing so, Meneses, at Lee's request obtained salary information for all of Directed's employees and passed it on to Lee. They used this information in setting salaries to be offered. Meneses also lied to the employees about the state of Directed's business to encourage them to leave. 1390 Meneses' conduct was surreptitious and dishonest. He arranged for communications with the proposed departing employees to be effected via their personal email addresses in order that Directed not discover the conduct. Lee was aware that this was so and communicated with them at these addresses, despite having their work emails available to him through his bona fide communications with Directed. 1391 Meneses' conduct was a primary breach of his fiduciary obligations, his statutory obligations and of his employment agreement. 1392 By December 2016, Meneses had obtained all salary package information for all Directed employees. On 31 January 2017 he sent out letters of offer to new staff by acquiring Hanhwa company letterhead from Lee. 1393 The first employee formally recruited was Mills. Meneses gave him a proposed salary package. Lee provided the letter of offer which Meneses signed on behalf of Hanhwa Aus. According to Directed, the next employee recruited was Palone, Directed's product development engineer, adopting a similar method. 1394 Further, there were attempts made to solicit Summers (Directed's senior product development engineer), Dane (Directed's service and QA manager), Calleja (Directed's customer service and technical support division), Pieries (mechanical engineer employed by Directed), Hashim (Directed's product development division), and Slade (telematics trainer). 1395 Further, Meneses made misleading and false statements to Directed employees about Directed, its business and its directors in order to entice them to leave Directed to work for Hanhwa Aus. He told them variously words to the effect: "Directed is going broke", "Directed isn't holding enough stock", "The directors are trying to sell the business", "Steve and Anthony are retiring and getting out of the OE business. This is confidential and will be announced to staff shortly", "Steve and Anthony want to sell or close the OEM business within 3 years", "I am not going to go after any of the existing business of Directed. I am only going to target potential new business from Directed's customers", and "There is no long-term future for you if you keep working for Directed". 1396 Shortly before 27 October 2017 Summers and Dane disclosed to Siolis such matters when Siolis presented to staff Directed's plans for a new building that it was to erect on land near IAL's offices. 1397 Now Meneses sought to draw comfort from the fact that of the eight employees whom it is alleged Meneses solicited, only one, namely, Mills, works at Hanhwa Aus. Further, he says that Directed has suffered no real loss, and any alleged loss has not been proven. 1398 Further, he says that the allegation that Directed incurred costs in replacing Mills is not borne out by Directed's evidence, which is that Proghios took over Mills' role. But of course I am only dealing with a trial on liability at this stage. 1399 Meneses submits that, other than Mills, no employees solicited left Directed's employ to work for Hanhwa Aus, that no damages has been suffered and thus there is no utility in granting any relief. But in addition to what I have said, it is noted that Palone now works for Y K Electronics doing work that has been shifted from Hanhwa Aus to this new entity, which is owned by Lee's wife. 1400 Further, had Meneses disclosed this conduct at the time it was engaged in being February 2017, Directed would have taken action to protect its position in the period through to its disclosure in October 2017 and may likely have avoided a series of diversions including the SuperDAVE opportunity. 1401 It is convenient to also say something about the Hanhwa parties at this point. 1402 Now the Hanhwa parties say that Lee had no knowledge that Meneses was (dishonestly or otherwise) breaching any of his obligations in soliciting any of Directed's employees. Further, they say that any conduct after August 2017 was done at a time when Lee thought that Meneses had already resigned from Directed. But the evidence shows that Lee knew of the terms of Directed's standard employment agreement from February 2017. Further, Lee sought from Meneses details of Directed's salaries paid to its employees. Meneses then obtained these from Floudas. Further, Lee and Meneses both discussed salary proposals to be made. Further, they co-signed letters of offer and provided employment agreements. In summary, even during the period that Lee knew Meneses was still employed by Directed he participated with Meneses in the solicitation of Mills, Palone, and Summers. 1403 Now the Hanhwa parties, like Meneses, also submit that no loss was suffered by Directed in any event. But the conduct must be seen as part of the ongoing conduct by Lee and Meneses to divert the entirety of Directed's business. Self-evidently, the solicitation of these employees who had knowledge of, and links with, the OEM customers must have been thought to be desirable for Hanhwa Aus. The attempt to solicit them was a breach of relevant obligations. To the extent that Mills and Palone were successfully recruited, damage was suffered. Dual employment 1404 From 2009 Meneses was not working solely for Directed, as he was contractually bound to do. As Directed succinctly put it, from the outset he had two "masters": Directed and Hanhwa Korea or its predecessor entity. At the same time Meneses was "Hanhwa's salesman in Australia" and was paid handsomely for that role. 1405 Mills was Meneses' right-hand person with knowledge of all his affairs. Mills' role was important. He played a part in the theft of Directed's confidential information and the obtaining and reproduction of its copyright works. He was cognisant of wrongdoing but pursued it. Mills' knowledge of his own wrongdoing goes back as far as 4 December 2015, when he encouraged his wife to be "vague" when talking to Meneses on emails, and for her to send emails to Meneses' personal email address to "keep discussions off Directed's servers". 1406 From approximately July 2016, Sue Mills assisted Lee and Hanhwa Aus with marketing services in anticipation of Hanhwa Aus' registration and commencement of operations. She commenced her engagement from at least early December 2015. The work included all things necessary to commence a start-up: a corporate logo, business cards, social media pages, promotional videos, marketing materials, and corporate uniforms. Mills and Meneses sent and received emails for the same purpose, which included the period when they were employees of Directed. From mid-2016, Hanhwa Aus (or the business later operated by Hanhwa Aus) was operating out of the Brooklyn premises. 1407 Meneses' and Mills' conduct included relevant use of the "Hanwha" and "Leemen" email addresses. From at least 9 May 2016, Meneses had a "Leemen" email address. From 2 August 2016, Mills had a "Leemen" email address. Mills (from his personal email address), conscious of his own wrongdoing, informed Meneses (to his Leemen email address): "Johnny, This is dangerous setting up this email on my directed phone. I need a personal phone or a leemen phone. Best regards Craig Mills." Meneses and Mills were intimately involved in the establishment of Hanhwa Aus' business at the Brooklyn premises whilst still employed at Directed. 1408 From mid-2016 Lee communicated with Mills and Meneses at their Hanhwa / Leemen email addresses, and their Directed email addresses. This was the method used to work out which "hat" they were wearing. Meneses and Mills worked on tracking the cost and expenditure in relation to the setting up of Hanhwa Aus. 1409 From 16 October 2016, Meneses was communicating with Lee from his Leemen email address in relation to proposed changes to the SuperDAVE AV unit and referring to it as the "HWA8000" (the HAU8000), making clear that by at least this date, Meneses and Lee had determined that Hanhwa would exploit the SuperDAVE opportunity to the exclusion of Directed. 1410 In early 2017, prior to his departure from Directed to join Hanhwa Aus, Mills in conjunction with Meneses facilitated the wholesale theft of Directed's confidential information and copyright works to assist this and other projects. 1411 From late 2015, Meneses and Mills engaged in a range of tasks to assist in the establishment of the Hanwa Aus business and to divert Directed's business to it. This conduct was a breach of their contractual obligations, fiduciary obligations and statutory obligations. 1412 Meneses and Mills were accessories to the dishonest breaches of each other, and induced each other's contractual breaches. 1413 Now Meneses says that from August 2017 he was employed by Hanhwa Aus but was also ensuring that the Directed/Hanhwa Korea relationship remained as functional as possible. But this ignores the fact that Meneses did not tell Directed that he had this new role working for its supplier and ignores all of the antecedent conduct in aid of soliciting its customers and employees, diverting its opportunities and meanwhile continuing to accept salary and make expense claims. 1414 Mills asserts that it is not necessarily a breach for an employee to prepare to set up a new business. Now strictly that is true. But the quality of the conduct, the admitted secrecy, Mills' awareness of the impropriety in warning Meneses, of the improper taking of confidential information just prior to leaving, create a problem for Mills. Further, the effect of the contractual restraints were also in play. Meneses' breach of his restraint 1415 The relevant restraint clause relied upon is clause 23(a)(ii) which relevantly provides that Meneses and Mills were restrained for 6 months after termination of employment from soliciting or endeavouring to solicit a customer of Directed with whom they had direct dealings in the previous 12 months. 1416 I should say here for completeness that the complaints by Mills as to the width of the geographic area and the distance of a customer's premises from Directed's premises are irrelevant as Directed does not rely on those separate restraints. 1417 Having regard to the seniority of Meneses' position, the close links with customers he was expected to bring with him at the commencement of his employment, that he was expected to have regular communications with OEMs who were to be the targeted customers and that he was to be responsible for relations with suppliers, the covenant relied upon was drafted to be no wider than reasonably necessary to protect Directed's legitimate business interests. 1418 Now in my view Meneses ceased his employment with Directed on 7 November 2017. I will again elaborate on this topic further when I come to the cross-claim. 1419 Meneses contravened the restraint by, from 7 November 2017 until 7 May 2018, his involvement as a senior employee of Hanhwa Aus, his divulging of Directed confidential information and his interference with Directed's relationship with its customers, including those with whom he had direct dealings within the previous 12 months such as IAL, Mercedes and Fuso, UD and Hino. Let me elaborate. 1420 Meneses breached his restraint in the period of 6 months following 7 November 2017 in the following fashion. 1421 First, with respect to IAL, he sought to retain and/or win its business for Hanhwa Aus by contacting Shanks, Humphries, Topping, Pottage and Betancur, updating them on his trip to ICL in Japan and being involved in the communications to IAL about the LM18I. 1422 Second, with respect to Hino, he sought to retain and/or win its business for Hanhwa Aus by contacting and meeting Petrovski, Gillespie and Gibson of Hino, presenting Hanhwa Aus' offer to supply, and being directly involved in the communications to Hino about the LM18H including offering to send working samples in February 2018. 1423 Third, with respect to Mercedes and Fuso, he sought to retain and/or win its business for Hanhwa Aus by contacting and meeting Parikh, Ahrens and Rodrigo of the Daimler group, presenting Hanhwa Aus' offer to supply, and being directly involved in the communications to the Daimler group about the LM19M and LM19F. 1424 Now it is convenient at this point to say something concerning the Hanhwa parties. The Hanhwa parties say that there is insufficient evidence that Lee had knowledge of Meneses' and Mills' employment agreements. 1425 But from February 2017 Lee had express knowledge of the terms of Directed's standard employment agreement, which he used to create Mills' employment agreement with Hanhwa Aus. Further, from the commencement of this proceeding he had further express notice. Further, Lee admitted that he had express knowledge but said that he was "not too concerned about contract, to be honest". 1426 Now Meneses says that there is no evidence or insufficient evidence of him "soliciting", "enticing away" or "interfering" with any client or customer of Directed with whom he had had direct dealings in the previous 12 months. But the evidence suggests otherwise. 1427 Further, Meneses says that the loss to Directed from this conduct was minimal. But I disagree. Partly as a result of this conduct, Hanhwa Aus obtained the supply of AV units to Mercedes and Fuso in substitution for Directed's product. Anyway, I am only dealing with the trial on liability. 1428 In my view, Meneses has breached his restraint and the Hanhwa parties have induced those breaches. Lee had the relevant knowledge and intention which can be attributed to Hanhwa Korea and Hanhwa Aus. OE Solutions conduct 1429 It was a breach of Meneses' position as a senior employee for him to reap a benefit by interposing OE Solutions to reap a profit on supply to Directed. 1430 The average mark-up that OE Solutions charged to Directed across all items was 63.69%. The total mark up by OE Solutions, which Directed says is a proxy for profit or the correlative loss to Directed, as a result of this conduct was $665,400.27. 1431 Now Meneses is silent on this claim. But Mills makes a number of arguments to the effect that he was merely carrying out his employment obligations when directed by Meneses to engage in the relevant conduct, and that he had no reason to suppose that the conduct was untoward. But this position is negated by the evidence which establishes that he was aware of the wrongdoing involved. I will elaborate on this later. My later discussion of the wrongdoing also forms part of my reasoning supporting the conclusions that I have expressed in a summary way in this section. 1432 In my view Directed's claims against Meneses, Mills and OE Solutions concerning the OE Solutions conduct succeed. They are clearly established on the evidence. But at this stage I am not in a position to assess the quantum of these claims. Meneses' accessorial liability vis-à-vis Mills 1433 In my view, Meneses is an accessory to the conduct that I have found against Mills. He also induced Mills to breach his employment agreement. Secret commissions 1434 Directed alleges that during the term of Meneses' employment at Directed and shortly afterwards, Hanhwa Enterprise and later Hanhwa Korea, Leemen Korea and Hanhwa Aus, at the direction of Lee, secretly and dishonestly engaged Meneses through OE Solutions to work on developing new business opportunities for Hanhwa Korea, Hanhwa Aus and Leemen Korea and by themselves or through their associates made payments to Meneses to induce Directed to purchase products and components from Hanhwa Enterprise and/or Hanhwa Korea and Leemen Korea to the exclusion of alternative suppliers. 1435 Further, it is said that they provided or agreed to provide to Meneses and/or OE Solutions a shareholding of 40% in Hanhwa Aus. 1436 It is said that Meneses acted dishonestly. He knew the purpose of the payments made and the offered shareholding pursuant to the secret commissions conduct, but he accepted the payments, kept the payments secret from Directed, and procured Directed to purchase products from Hanhwa Enterprise and/or Hanhwa Korea and Leemen Korea to the exclusion of alternative suppliers. 1437 Now the Hanhwa parties admit to the payment of commissions to Meneses pursuant to the 1 August 2005 agreement between Hanhwa Enterprise and OE Solutions, the 1 July 2009 agreement between Hanhwa Enterprise and OE Solutions, the 17 May 2012 agreement between Hanhwa Korea and OE Solutions, and by Hanhwa Aus to OE Solutions at the direction of Lee. 1438 The relief sought by Directed includes as against Meneses, Hanhwa Korea, Leemen Korea and Hanhwa Aus, an account of the monies paid or payable pursuant to the secret commissions conduct as monies had and received and damages or compensation. Further, Directed seeks as against Meneses, an account of the benefits received for his and/or OE Solutions' 40% shareholding in Hanhwa Aus. Directed also seeks declarations that the secret commissions and the 40% share in Hanhwa Aus held by Meneses and/or OE Solutions be subject to a constructive trust. I note that my orders for trial included that certain issues of quantum concerning the commissions would be dealt with at this liability stage of the proceeding. 1439 Let me make some general points at the outset. 1440 First, Meneses and the Hanhwa parties engaged in the secret commissions conduct. The secrecy was manifest. 1441 Second, I accept that relevant secret commissions payments were made. But I do not accept Directed's case concerning the 40% shareholding. Although there may have been communications concerning this, ultimately no such equity interest was conferred. 1442 Third, in my view it does not assist the Hanhwa parties for them to say that they thought that Meneses was a shareholder/director of Directed rather than an employee. Further, it also does not assist the Hanhwa parties to attempt to portray their relationship with Directed as one of manufacturer/distributor. 1443 Fourth, Meneses asserts that Directed's secret commissions case misconstrues the fact that there was a mutually beneficial relationship between Hanhwa Korea (and its predecessor) and Directed. He says that Directed could not earn its profits without this relationship with Hanhwa Korea, and so not everything should be seen through the lens of the secret commissions conduct. Nevertheless, in my view the secrecy involved was a corrupting influence on what otherwise should have been a mutually beneficial relationship of supplier and customer. Indeed, under the various secret commissions agreements, Meneses was obliged to increase the business of the relevant Hanhwa entity, so corrupting his incentive to obtain the best business deals for Directed his employer. Further, I agree with Directed that Meneses was so corrupted by the relationship that he engaged in the diversion of business opportunities, which should have been exploited for the benefit of Directed, to Hanhwa Korea through its Australian entity, Hanhwa Aus. 1444 Fifth, the evidence of Siolis was that had he known of the secret commissions he would have terminated Meneses' employment and the supply relationship with Hanhwa Korea or its predecessor. Some law 1445 The rule against taking a secret commission or bribe can be subsumed under general principles relating to conflict of duty and interest and misuse of a fiduciary position. Such payments may be gifts or they may be seen to have been earned by the fiduciary for services rendered to the payer, notwithstanding that the fiduciary is acting in the matter at the same time for his principal. 1446 Put simply, "[an] agent must not take remuneration from the other side without both disclosure to and consent of his principal" (Grimaldi at [191], citing Rhodes v Macalister (1923) 29 Com Cas 19 at 27). 1447 Now suitable descriptions of a bribe or a secret commission were given by Slade J in Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573 at 575: [A] bribe means the payment of a secret commission, which only means (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent. 1448 The mischief to which the rule is directed is twofold. 1449 First, it is directed to ensuring that persons who owe fiduciary duties do not profit from their position as fiduciaries except with the consent of their principal, whether or not such a profit affects their loyalty to the principal. 1450 Second, the receipt of a secret commission may impinge on the loyalty the law expects of an agent to his or her principal. The very fact of non-disclosure to the principal suggests that it influenced the agent in dealing with the third party. 1451 Further, whilst secret commissions are often given with the corrupt purpose of influencing, such is not a necessary characteristic of them in civil proceedings. As Lawrence Collins J observed in Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119 at [53] and [54]: In proceedings against the payer of the bribe there is no need for the principal to prove (a) that the payer of the bribe acted with a corrupt motive; (b) that the agent's mind was actually affected by the bribe; (c) that the payer knew or suspected that the agent would conceal the payment from the principal; (d) that the principal suffered any loss or that the transaction was in some way unfair: the law is intended to operate as a deterrent against the giving of bribes, and it will be assumed that the true price of any goods bought by the principal was increased by at least the amount of the bribe, but any loss beyond the amount of the bribe itself must be proved; (e) that the bribe was given specifically in connection with a particular contract, since a bribe may also be given to an agent to influence his mind in favour of the payer generally (e g in connection with the granting of future contracts). The agent and the third party are jointly and severally liable to account for the bribe, and each may also be liable in damages to the principal for fraud or deceit or conspiracy to injury by unlawful means. Consequently, the agent and the maker of the payment are jointly and severally liable to the principal (1) to account for the amount of the bribe as money had and received and (2) for damages for any actual loss. But the principal must now elect between the two remedies prior to final judgment being entered: Mahesan s/o Thambiah v Malaysia Government Officers' Co-operative Housing Society Ltd [1979] AC 374, 383. The third party may also be liable on the basis of accessory liability in respect of breach of fiduciary duty: Bowstead & Reynolds on Agency, para 8–221. The principal is also able to rescind the contract with the payer of the bribe. 1452 The payer of a secret commission to a person known to be acting in the matter on behalf of another, is taken to have assumed the risk of the payee having not obtained his or her principal's informed consent to receipt of the payment. Knowing that the payee is acting on another's behalf is sufficient of itself to attract liability, unless full disclosure is made by the payer or "agent" and consent is given by the principal to the payment. Importantly, the payer's liability does not turn on his or her knowing or suspecting that the agent has not received the principal's informed consent to the payment. The strict nature of these principles as they apply to bribes, indicates their intended deterrent effect. 1453 Moreover, the Hanhwa parties' payment of secret commissions to Meneses also comprises one of the manifestations of knowing participation as identified in Grimaldi at [246]: The fourth is where the third party deals with a known agent (or fiduciary) in a projected transaction with the agent's principal (or beneficiary) and in the course of so dealing offers and has accepted, or agrees to the agent's solicitation of, a commission, introduction fee or other collateral benefit without the informed consent of the principal. In such a case the third party's liability is founded on the assumption of the risk that the agent has not obtained the informed consent of the principal to the receipt of such a benefit and hence is acting in breach of fiduciary duty… [citations omitted; emphasis in original] 1454 Let me make some further points concerning quantum. The principle seems to be that it will be assumed that the true price of any goods bought by the principal was increased by at least the amount of the bribe paid to the agent. 1455 Slade J in Industries & General (at 578) went on to accept that: …where you have two parties to a contract introduced by an agent of one of them, once it is established that one of the parties to a contract makes a secret payment to the person whom he knows to be the agent of the other, the law will presume against him that he has acted corruptly, that the agent has been influenced by the payment to the detriment of his principal, and that the principal, the defendant in this case, has suffered damage to at least the amount of the bribe. 1456 Further, the agent and the maker of the payment are jointly and severally liable to the principal to account for the amount of the bribe as money had and received and damages for any actual loss. The commissions in the present case were bribes / secret commissions 1457 In my view Hanhwa Enterprise, Hanhwa Korea and Hanhwa Aus made secret commission payments to Meneses and/or OE Solutions. Further, the Hanhwa parties knew that in one form or another Meneses was an agent or employee of Directed. 1458 Moreover, it is not in doubt that Meneses failed to disclose this receipt of the commission payments to Directed in order to obtain its informed consent. This was a clear breach of his fiduciary duty. Indeed in my view his conduct was fraudulent and dishonest and well known to be so by YS Lee, Lee and the Hanhwa parties. The Hanhwa parties also failed to disclose the commission payments to Tselepis and Siolis. 1459 It is not in dispute that Directed's directors, Siolis and Tselepis, did not have knowledge of the commission payments. Had they been informed, they would not have agreed to it. Indeed, as I have said, Siolis would have taken immediate steps to source an alternative supplier. He would then have terminated the Hanhwa supply agreement. He would have also terminated Meneses' employment. 1460 Now YS Lee facilitated the payments when acting in his capacity as Chairman and CEO of Hanhwa Enterprise / Hanhwa Korea. Further, Lee also facilitated the relevant conduct. 1461 Lee facilitated the payments when acting in his capacity as head of the sales and marketing division of Hanhwa Korea from at least 2013, as Managing Director of Hanhwa Korea from 2015 and as Managing Director of Hanhwa Aus since its incorporation in 2016. Further, from at least 2013 Lee was the "main person" for Meneses in following up the payments. Having regard to Lee's facilitation and his senior roles for the Hanhwa parties, at all material times payments were made by the Hanhwa parties at the direction of Lee. 1462 Now Directed says that upon incorporation of Hanhwa Korea in 2012, it took over all outstanding liabilities that were owed under the 2009 secret commissions agreement. Now the document itself says "effective from the date of 01 July 2009". But this is a clear error in the document. Now I accept that all outstanding liabilities owed by Hanhwa Enterprise under the 2009 secret commissions agreement were taken over by Hanhwa Korea under the 2012 secret commissions agreement. But at best this concerned accrued financial liabilities that had not been paid. Let me elaborate. 1463 On 21 May 2012, the 2012 secret commissions agreement was emailed by Lee to Meneses at his Directed work email address. Meneses replied "Ryan, Please ONLY send this info to my home email ONLY!!!!!!!!". The agreement was on Hanhwa Korea's letterhead, addressed to OE Solutions (attention Mr Johnny Meneses) and was accepted by OE Solutions. It provides as follows: Dear Johnny Meneses, This is to confirm that with effective from the date of 1 July 2009, it is understood that OE Solution will provide the following services to Hanhwa high-tech Co., Ltd. 1. Co-ordination for the on-going business with Directed Electronics & Hanhwa. 2. Control and developing new business with Hanhwa. It is agreed that charge for such service of buyer orders including Directed will be supported by OE Solutions will be 3% of the shipped amount per shipment payable upon completion of the shipment. Also Hanhwa agrees the remittance to OE Solutions service charge agreed between OE Solutions and Hanhwa after shipment for buyer orders as below account no. Name: Johnny Meneses Band swift: … Bank name: … Address: 203 Boundary Rd braeside Vic 3195 Australia Account: … 1464 Meneses' email response put Lee on notice on and from 21 May 2012, that Meneses' agreement with Hanhwa Korea was to be kept secret from Directed. 1465 But the reference to "1 July 2009" seems to have been an error; it seems to have resulted from a "cut and paste" from the 2009 secret commissions agreement. I reject Directed's broader retrospectivity argument. 1466 Now Directed says that to the extent that Hanhwa Korea took on all outstanding obligations arising under the 2009 secret commissions agreement, this must necessarily include any obligations to account for the improper nature of those payments by its predecessor, Hanhwa Enterprise. But this is a non-sequitur. At best it may have taken responsibility for any accrued liabilities. 1467 Now attached to my reasons is annexure D which sets out a schedule of the secret commissions paid and by whom. Generally speaking it accurately sets out the payments made so far as I am concerned. I will return to this later. 1468 But let me say now that because I have rejected Directed's broader retrospectivity argument and indeed its broader novation argument concerning Hanhwa Enterprise, Directed has no claim against the Hanhwa parties for items 1 to 32 concerning payments made by Nan-Shik Min and Hanhwa Enterprise. They are not parties to this proceeding, and there is no viable claim against the Hanhwa parties for those amounts. However, Directed does have a quantifiable claim against Meneses and/or OE Solutions for all of these payments identified in items 1 to 32, indeed for all items 1 to 51, subject to my later comments. 1469 Let me return to some further facts. 1470 In the period 2010 to 2016, YS Lee sent emails to Meneses at his Directed email address informing him of commission payments. Meneses also exchanged emails with Lee from as early as 11 October 2011 about commissions due to him. On one occasion, by email to Lee dated 18 February 2015 with the subject "Fuck!", Meneses stated, "What happen to com????". 1471 On 12 April 2017, Lee informed Meneses future commissions were to be paid by Hanhwa Aus. It is to be inferred that this was on the same or similar terms to the 2012 secret commissions agreement. Lee further communicated with Meneses about the terms of his business relationship with "Hanhwa" by email dated 22 June 2017. Lee informed him that: (a) in 2016 Hanhwa paid Meneses AUD 400,000 in commission; (b) for 2017, Hanhwa proposed to pay Meneses AUD 550,000 being salary (AUD 150,000 to him personally) plus AUD 400,000 to OE Solutions; (c) Hanhwa would pay OE Solutions AUD 150,000 for commission for the period January 2017 to June 2017; and (d) Meneses was to receive a 40% shareholding in Hanhwa Aus. 1472 Directed alleges, which I accept, that both Meneses and Mills were directly involved. Had it come to his attention, Siolis would have ceased the OE Solutions arrangement. The average mark-up that OE Solutions charged to Directed across all items was 63.69%. The total mark-up charged across all products was AUD 665,400. 1473 The conduct was dishonest and deceitful. I will address further aspects concerning the conduct of OE Solutions when I deal with the case against Mills. 1474 Let me say something more concerning the Hanhwa parties. Now whilst it may not be necessary to prove a corrupt purpose, in the case of Lee at least, and recognising the higher threshold of proof, such a purpose was apparent. He was aware of the need for secrecy and maintained it. He recognised that the practice of paying commissions or giving "presents" was "uncommon" for his generation. He was a law graduate who knew, or ought to have known, that such payments were in fact illegal under Korean criminal law. 1475 Further, from an early time of his employment at Directed, Meneses was receiving secret commissions from Hanhwa in its various manifestations. In doing so, he stood in breach of his employment agreement, in breach of his fiduciary obligations to Directed and his statutory obligations. He is liable to account for all of the gains that he so received. It is also apparent that no steps were taken to disclose the commissions by the payer or the payee to Siolis or Tselepis. 1476 Moreover, Hanhwa Korea, Leemen Korea, Hanhwa Aus and Lee were knowing assisters in Meneses' breach of his fiduciary obligations. 1477 Let me say something further about the quantum of the payments. 1478 Annexure D to my reasons is a summary admitted into evidence pursuant to s 50 of the Evidence Act 1995 (Cth) which shows the total recorded commissions paid. I have accepted its accuracy. 1479 I will receive further submissions from the parties concerning the quantification of this aspect of the claim and against which party, but let me press on with some other aspects. 1480 First, there was a sum of USD 150,000 outstanding to Meneses. Lee acknowledged it was owed to Meneses. Lee said that he paid him AUD 150,000 and admitted there was a balance owing of the difference between the USD and AUD figure. 1481 Second, YS Lee said that whatever payment was made to Meneses was all documented and substantiated. But Directed says that this is not correct. Directed seeks more than the actual payments that I have identified. 1482 Directed says that the 2009 and 2012 secret commission agreements provided that Meneses / OE Solutions were to receive 3% commission on goods sold. Directed's total purchases from Hanhwa Korea totalled AUD 136,671,012. Therefore, applying 3% to this figure according to Directed, Meneses / OE Solutions were contractually entitled to receive AUD 4,100,130 from Hanhwa Korea. 1483 But on the evidence currently adduced, I am not able to accept this. 1484 Now Directed says that it is to be presumed that the prices charged by Hanhwa Korea to Directed must have been "loaded" by that amount. Further, Directed says that if only admitted conduct is relied upon, this means that there is a shortfall of AUD 2,766,392. I reject this ambitious assertion of Directed concerning the application of any so-called loading presumption in respect of payments not shown to have been made. I would only accept the so-called loading presumption in terms of payments shown to have been made which as I say are reflected in annexure D. 1485 Now Directed says that Meneses had the practice of following up his outstanding commission payments. It says that one can infer that Meneses would not accept being underpaid AUD 2.7M of his contractual entitlements. This suggests, according to Directed, that the outstanding amounts were made up to him in other ways. Lee accepted that Meneses made many trips to Asia with YS Lee. He also admitted that his father or Lee made presents to Meneses on many occasions. Further, Directed says that Meneses had access to a Chilean bank account, although Lee claimed no knowledge. Directed's reference to this Chilean bank account was in my view a distraction and went nowhere. 1486 But I agree with the Hanhwa parties that the proposition put by Directed that Meneses would not accept being underpaid AUD 2.7M of his contractual entitlements does no more than beg the question. Assuming Directed's proposition to be correct, two logical possibilities arise. The first, which Meneses advances, is that there was no such entitlement, which is why there is no evidence of any communication from Meneses in respect of it. The second, which Directed advances, is that the entitlements were paid, which is why there is no evidence of any communication from Meneses in respect of it. Directed's contention therefore does not advance the analysis. 1487 Now Directed submitted that bribes and secret commissions commonly take the forms of gifts made to a fiduciary. The implication is that the presents that Lee referred to constitute a form of bribery or secret commission. But Lee explained that the presents that he had given were presents to Meneses' daughter or his son, or took the form of clothing or shoes for Meneses' birthday. He denied that he had ever given him cash but said that he did not know what his father had given Meneses. YS Lee's evidence was that there were no valuable presents given to him. And the only presents that he could think of were presents that he gave him for his family members on occasions such as a Christmas party and those presents would not have been worth more than about $200 or $300. 1488 Directed says that the unaccounted payments of AUD 2.7M were, in fact, paid to Meneses, whether into an unknown bank account, in cash during Meneses' frequent visits to Asia, or by other means. But I am not prepared to accept this. The evidence only establishes the making of the payments referred to in annexure D. So, I am not prepared to order that Meneses, OE Solutions, Hanhwa Korea, Leemen Korea and Lee jointly and severally pay Directed the sum of AUD 4,100,130. 1489 Now Directed asserts that I should infer that the price struck between Directed and Hanhwa Korea for the supply of all product was loaded by the amount that Meneses and OE Solutions had agreed would be paid under the secret commissions agreement. But there is no evidence to support this sweeping assertion. 1490 Generally, I reject Directed's case that there is a proper basis for inferring that a very large sum of money was paid in some unspecified way to Meneses, and yet is incapable of being found or identified. 1491 Let me now address some of the Hanhwa parties' other points. 1492 First, the Hanhwa parties accept that Min on behalf of Hanhwa Enterprise made payments of commission between 21 July 2009 and 26 November 2009. And Hanhwa Enterprise made payments of commission between 22 December 2009 and 21 May 2012. But they say that none of the Hanhwa parties can bear any liability for the payments made by Min or Hanhwa Enterprise. I agree. 1493 Second, they accept that Hanhwa Korea made payments of commission between 3 July 2012 and 30 November 2016 in the amount of USD 651,819. 1494 Third, they accept that Hanhwa Aus made payments to OE Solutions on 22 September 2017, 24 October 2017 and 20 November 2017 by way of consultancy fees. 1495 Fourth, the Hanwha parties say that they cannot be liable for the payments made by Hanhwa Enterprise. The latter is not a party and no longer exists. I have accepted this. 1496 Fifth, they say that there cannot be any liability for payments made by Hanhwa Aus. The invoices record that these payments were made for services rendered to Hanhwa Aus, and were made after Lee believed that Meneses had left Directed. And in the case of the last payment, after even Directed accepts that he had left Directed. None of those payments were made for the inducing purpose pleaded. But I reject this. These payments were made by way of secret commission and I do not accept Lee's assertion of belief concerning Meneses. 1497 Generally, in my view Lee directed the payments secretly and dishonestly to induce Directed to purchase products from Hanhwa Korea and Leemen Korea to the exclusion of alternative suppliers. Further, Lee and thereby the Hanhwa parties had knowledge of Meneses employment contract and the statutory duties owed by Meneses to Directed. 1498 Further, in my view the payments were made at the direction of Lee or with his imprimatur, even if they were also made at the direction of YS Lee. 1499 Further, I have little doubt that Lee's knowledge can be regarded as the knowledge of both Hanhwa Korea and Hanhwa Aus. 1500 Now the Hanhwa parties say that here the relevant act in question is the making of the payment and the antecedent decision of how much and when to pay, and that here the guiding mind and will with respect to the making of the payments was YS Lee, not Lee. But in my view this is too narrow. Lee's conduct and state of mind is implicated concerning the payments reflected in items 33 to 51 of annexure D. 1501 Further, the Hanhwa parties say that it did not occur to Lee that Meneses might not be entitled to receive the payments. Lee said that he believed that Meneses was not an employee of Directed but was an owner and director of Directed. He said he believed that effectively Meneses and Directed were one and the same. I do not accept these assertions. Lee well knew that these payments were being made in secret and wrongfully. 1502 As Directed correctly submitted, Lee accepted a series of unremarkable propositions concerning his understanding of the standards of honesty and candour that should be applied as between co-owners of a business. Having regard to this understanding, the only conclusion that can be drawn is that he engaged in the secret commissions conduct not caring whether this assisted Meneses to engage in secret and dishonest conduct. 1503 Further, it is clear that Lee knew that Meneses was not entitled to receive the payments. So, for example, when on 21 May 2012, Lee forwarded the 2012 secret commissions agreement to Meneses under cover of an email stating, "see the Contract for your com.", in return, Lee received an email from Meneses stating, "please ONLY send this info to my home email ONLY!!!!!". Lee did not contest that there was a need for secrecy. His evidence that Meneses feared that "Siolis and Tselepis might become jealous if they had highlighted to them the size of commissions" is not credible. Moreover, Lee conceded that his alleged understanding that Meneses was a co-owner of the business did not justify the making of the payments. 1504 Moreover, I agree with Directed that Lee is not saved by any assertion that he saw nothing wrong with the conduct. Knowledge of circumstances that would indicate the facts to an honest man will suffice to establish liability. 1505 I will hear further from the parties as to the precise quantum of the secret commission payments that I should order be paid and against whom. As I say, I have rejected Directed's broader case to any entitlement beyond the amounts set out in annexure D. 1506 Let me deal with another point that has arisen concerning Directed's agency point. I agree that in the way it was put ultimately was not part of the pleaded case. 1507 Further, Directed now seeks an order against Hanhwa Korea that the entirety of the profits earned on the supply of all product by Hanhwa Korea to Directed between 2009 and 2018 must be disgorged. I agree with the Hanhwa parties that putting aside the fact that Hanhwa Korea was only incorporated and commenced supply in or about May 2012, the submission that Hanhwa Korea is now obliged to make payment to Directed of apparently $41 million is untenable. 1508 This claim is not pleaded, was not referred to in the Directed written opening and in any event lacks merit. There is no suggestion that the price that Hanhwa Korea supplied product to Directed was somehow not consistent with a market price or was otherwise improperly overstated in that some proportion of the profits derived by Hanhwa Korea were improperly obtained. 1509 Let me deal with one other matter. 1510 The presumptive rule applicable to a fiduciary to whom an advantage has accrued in breach of fiduciary duty or by misuse of the fiduciary position is that he or she must account for it and, in equity, the appropriate remedy is by means of a constructive trust. However, a like rule in relation to the award of proprietary relief, has not as yet been enunciated in relation to a knowing assistant, notwithstanding that it is well accepted that an assistant is liable to account for any benefit he has received as a result of knowing participation in a breach of fiduciary duty. 1511 Under English law, in the case of a money bribe the bribed agent was accountable to his principle in equity for the bribe received, not as a constructive trustee but as a debtor in equity. This approach was rejected in obiter in Grimaldi. A constructive trust is likely to be awarded as of course where the bribe still exists in its original, or in a traceable, form, and no third party issue arises. The Court observed (Grimaldi at [576]): To exclude the bribed fiduciary from the deterrent effect of the constructive trust is, in our view, to make it unavailable in the very situations where deterrence is likely to be the most needed. Bribery at its most naked breeds the crudest form of fiduciary infidelity. To privilege the dishonest fiduciary in this way is to create an incentive which should not be tolerated. 1512 Further, it has been said that the relevant equitable disgorgement principle is a prophylactic rather than a restitutionary principle. It is sufficient to show that the profit would not have been made but for the dishonest wrongdoing; a defendant cannot avoid liability to disgorge profits dishonestly made by showing that those profits might have been made honestly. 1513 In Grimaldi, it was further observed that it is a common characteristic of dealings infected with a bribe or secret commission that the consideration paid by the recipient's principal is loaded at least by the amount of the bribe. So much so, that it is recognised that in proceedings for damages by the principal against the payer in, for example, sales transactions, this will be damage presumed to have been suffered and is recoverable as such. 1514 Directed says that if Hanhwa Korea is liable as a knowing assistant in Meneses' breaches of fiduciary duty, then the profits earned on the supply of all product to Directed between 2009 and 2018 must be disgorged. 1515 Now where causation is sufficiently established the onus is upon the errant fiduciary or participant to show that he or she should not account for the full value of the advantage. The requirement of proof conforms with the obligation of a party charged with a breach of fiduciary duty to show why the full value of an advantage obtained in a situation of conflict of duty should not be disgorged. 1516 Now Directed says that it should be accepted that the profits earned by Hanhwa Korea on the supply that I have just identified would not have been earned but for its participation in the secret commissions conduct, and thus is liable to be disgorged. But I must say that I am not convinced that Directed has established the necessary causal connection. 1517 Finally, I will not deal with any compound interest question at this time. 40% shareholding 1518 Lee's evidence is that Meneses does not have a 40% interest in Hanhwa Aus. 1519 Now Directed says that the documents evince an agreement between Lee and Meneses to give effect to this 40% shareholding. I disagree. 1520 Leaving aside an allegation of an oral agreement (of which there is no evidence), the only written evidence on which Directed relies are two emails. 1521 The first is an email from Meneses to Lee on 4 September 2017, in which he said "so we can start our partnership for many more years to come!". The exclamation mark alone gives character to this statement: it is the use of the word partnership in its non-legal sense. And in any event, the email refers to the "start" of the alleged partnership, whereas Directed alleges that the said shareholding agreement arose from almost a year earlier (21 September 2016). 1522 The second is a single email from Lee to Meneses which refers to "40% shares". That suggestion went nowhere, and Lee's evidence on the point did not change under cross-examination. 1523 Directed asserts that the documents evince an agreement to give Meneses a 40% shareholding in Hanhwa Australia. There is one email in which the 40% figure was mentioned, and another email in which Meneses used the phrase "our partnership" to describe his relationship with Lee. In short, they are an insufficient basis (especially in light of Lee's oral evidence denying the shareholding) to conclude that any such equitable shareholding exists. 1524 Directed also alleges that an email in which Meneses provided his name, date of birth, place of birth, tax file number and address to Lee contained "all the details necessary to be appointed an ASIC director". But Lee's evidence was that those details were required in order to establish Meneses as an employee of Hanhwa Aus, that is, for salary purposes. This evidence should be accepted. 1525 Further, even if the 40% offer were made, its rationale was to entice Meneses to move to moving to Hanhwa Aus. Its purpose was not to affect the Directed/Hanhwa relationship by, for example, inducing Directed to purchase more products from Hanhwa. 1526 Further, whilst at one point Lee offered Meneses a 40% share in Hanhwa Aus, the shares have never been issued and Lee does not intend to procure the issue of such shares to Meneses whether by allotment or the transfer of his own shares. 1527 There is in fact no evidence of acceptance of that offer by Meneses. Even if Meneses accepted the offer, the shares have not been issued or transferred to him. An executory promise to transfer property does not give rise to an interest in the property the subject of the promise. Even if it did, there is no entitlement on the part of Directed to the account of profits and/or damages it seeks. The fact that the terms of employment of an employee include a shareholding in the employer do not give rise to an entitlement on the part of Directed to the relief sought aside from nominal damages, even if Meneses' alleged 40% interest places him in breach of his post-employment non-competition covenants. Meneses' cross-claim 1528 In summary, Meneses' cross-claim alleges that there was an agreement between Meneses, Siolis and Tselepis that they would conduct the business of Directed, and share in the profits equally with Directed as the corporate entity through which the business was carried on by Meneses, Siolis and Tselepis, and further or alternatively, that there was a partnership for the purposes of the Partnership Act 1958 (Vic). 1529 It is also alleged that in August 2017, an exit agreement was reached in respect of Meneses' exit from the business and the valuation of and payment for his shares. 1530 The breaches alleged against Siolis and Tselepis concern their failure to pay Meneses his share of profits, their failure to issue shares to Meneses, and their failure to take the steps required by the exit agreement in respect of his shares. Breaches of contract and of fiduciary duty are alleged. A further knowing assistance breach is alleged against Directed. Further, an estoppel case and an equitable compensation case is brought against Siolis and Tselepis in respect of the same conduct. I should say upfront that these claims lack substance. 1531 Meneses alleges that in 2009 Siolis and Tselepis made representations to him and they entered an agreement that he and they would each hold equal shareholdings in Directed and that the profits of the Directed business were to be shared equally between. He alleges that he contributed $190,000 as his capital contribution. 1532 Tselepis and Siolis deny that they made any such representation or that any such agreement was reached. 1533 Siolis and Tselepis say that in or around May 2009 they had a meeting with Meneses and offered Meneses a job as General Manager of the new business and offered to employ the other three employees on their current salaries. They said that it will cost a lot of money to get the business up and running, upwards of two million dollars and if Meneses could lend the business some money that would help. Meneses agreed and said he would go away and work out how much he could lend. 1534 On 11 May 2009 Directed and Meneses executed the written employment agreement employing Meneses as its Business Development Manager and General Manager. In mid-June 2009 Meneses lent Directed $190,000. 1535 Siolis and Tselepis say that in the period from 2009 to 11 October 2017 Meneses never requested to be provided with the financial statements of Directed or any of the companies in the Directed group of companies, to be appointed as a director of Directed, to be issued with shares in Directed or to be paid any dividends or share of the profits of Directed. 1536 Directed, Tselepis and Siolis deny that the funds paid by Meneses to Directed were anything but a loan. Indeed they say that in about November 2012, Meneses requested that the loan be repaid. Siolis agreed to repay the loan in monthly instalments of $30,000 and that interest would be calculated and paid on the loan at the rate at which Meneses had paid his bank to borrow the monies to make the loan. Pursuant to that agreement the loan (as so described by Meneses) was repaid in 2013 plus interest as agreed. 1537 Meneses' also alleges that in or about August 2017, he verbally agreed with Siolis and Tselepis that he would consult to Directed until September 2017, and that Siolis and Tselepis agreed to obtain a valuation of his one-third share in Directed, to pay him immediately half of his one-third share, and to pay to him the remaining half of his one-third share within 3 years. But Siolis and Tselepis dispute that there was any such discussions or agreement reached as alleged. 1538 Further, Directed, Tselepis and Siolis say that even if I were to find that any of the agreements were entered into by Siolis and Tselepis, Meneses is estopped from relying upon it. Meneses' version of events 1539 It is convenient at this point to set out Meneses' version of events. 1540 Prior to his move from TechAudio to Directed, Meneses says that he agreed with Siolis and Tselepis that he would become a one-third shareholder or partner in Directed. He says that the relevant contemporaneous evidence is consistent with this agreement, including Meneses' actions at the time of joining Directed in mid-2009, the 2009 accounts of Directed and other entities, Meneses' communications in 2013, and Meneses' correspondence and discussions in mid-to-late-2017. 1541 Meneses says that Siolis' and Tselepis' denials must be assessed in light of the commercially bizarre outcome which would otherwise prevail, namely, Meneses having agreed to enter into a "loan" with Directed which comprised nearly two years' worth of his annual salary, had no fixed repayment date, was unsecured, without any discussion of the payment of interest, and having agreed to an employment arrangement which entitled Directed to terminate him on one week's notice, with no repayment arrangement in the event of such termination. 1542 They must also be assessed in light of the contemporaneous documents, both from 2009 and later, and Siolis' and Tselepis' responses to them, including documents which record the advance of funds, documents in which Meneses was held out a director of Directed, and documents in which Meneses asserted an ownership interest in Directed. 1543 Meneses has put the following chronology which he says supports his case. 1544 In the months leading up to May 2009, Meneses, Siolis and Tselepis met and discussed Meneses moving from TechAudio to join Siolis and Tselepis to establish an OEM AV unit distribution business. That business became Directed. 1545 Siolis' evidence was that Meneses expressed an interest in taking an interest in the new business, albeit that Siolis says that Meneses said he was unable to do so. Dane's evidence was that Meneses told him in 2009 that he was buying into the new business. 1546 In May 2009, Meneses agreed to advance $190,000 to Directed. Directed alleges that the funds were advanced by way of loan. Despite that assertion, Directed's witnesses conceded that at the time the funds were advanced there was no discussion about the repayment of the loan, whether the loan would attract interest, and whether Meneses would receive security for his loan. Meneses says because Siolis and Tselepis are experienced business people, their failure to agree or discuss such terms is a strong indication that the arrangement entered into was not a loan. 1547 The funds were advanced on 22 June 2009. As Directed did not have a bank account at that time, the funds were advanced to another company associated with the Directed group, namely STI. 1548 Now the accounts as at 30 June 2009 of a number of companies in the Directed group are in evidence, including STI and Directed. But none of those accounts shows any entry which reflects a liability owing to Meneses in respect of any alleged loan to Directed. 1549 Floudas, the CFO of the Directed group, said that he was not responsible for preparing the accounts, but he acknowledged that he had the responsibility for approving them and ensuring their accuracy. During his cross-examination, Floudas stated that any loan from Meneses would have been recorded in the accounts of STI. But when he was taken to that document, and specifically to the balance sheet, he acknowledged that there was no amount recorded as owing to Meneses. 1550 Meneses says that Floudas' attempt later in his cross-examination to assert that the "loan" would "be within these numbers [being the accounts of STI], but we can't see it because we can't get a granular break-up of the general ledger" should be rejected. The STI accounts show that as at 30 June 2009, leaving aside other irrelevant liabilities, there was one unsecured loan for $202,406. But that loan was owing to Directed Electronics Inc, not to Meneses. 1551 Ultimately, despite further attempts to assert that the "loan" was recorded in the accounts of Directed entities prior to 2012, Floudas accepted that the relevant accounting records did not show any loan payable to Meneses. 1552 Accordingly, Meneses says that I should find that from 2009 to 2012 there was no record in the relevant accounts of any amount owing to Meneses in respect of the $190,000 financial contribution he made in June 2009. 1553 In 2012, the position changed. At that time, Floudas created a loan account for Meneses in the accounts of Directed. That took place shortly before the periodical repayments of $200,000 to Meneses. The relevant document, and Floudas' evidence, establishes that the relevant accounting entry was created on 30 June 2012, and not at some earlier time contemporaneous with the relevant capital contribution. 1554 Meneses says that these post-contribution accounting manoeuvres do not change the fundamental character of the contribution, being an equity contribution. All that they establish is that Meneses was repaid funds in respect of that contribution, and that the accounting records were only created for that purpose. 1555 Now as I have said, Meneses signed his employment agreement in May 2009. It provided, inter alia, that he would commence work on 11 May 2009, he would receive an annual salary of $100,000 gross and certain allowances, and his employment was capable of being terminated on one week's notice with a further week's notice being provided if Meneses was over 45 years of age and had worked for the company for 5 years. 1556 Now Directed contends that Meneses had loaned $190,000 to a fledgling business, without any security, any agreement as to when the loan would be repaid, any agreement as to how the loan would be repaid, any agreement as to interest, or any written agreement, and Meneses had signed an employment agreement on a salary of $100,000, having loaned nearly twice that much to the business, which was capable of being terminated at a week's notice, with no provision concerning repayment of any loan. Meneses says that the uncommerciality of such an arrangement fortifies the conclusion which Meneses urges that there was no loan, and that Meneses' contribution was for a capital stake in the business of Directed or Directed itself. 1557 Further, Meneses points out that he held various titles throughout his time at Directed. One of those titles was "OE Director". Siolis was happy for him to have that title, and to represent that to the world at large. Meneses also signed documents as a director of Directed. One of those documents was an agreement with Volvo which was also co-signed by Siolis. Siolis conceded that Meneses was allowed to sign agreements from time to time. 1558 Meneses says that the only available inference from the documents is that Siolis knew that Meneses signed documents as a director of Directed, and there was no objection to that course because it was consistent with Meneses' ownership interest in Directed. 1559 Further, Meneses' status as a director within the business appears to have been understood by other employees in Directed. For example, on 20 September 2017, Dane wrote an email of resignation to Siolis (copying Tselepis and Meneses) in which he thanked Siolis "and the other Directors: Anthony [Tselepis] and Johnny [Meneses]". 1560 Further, Meneses says that on 10 May 2013, he sent an email calendar invitation to Siolis and Tselepis, which stated: Gents I think it's about time that we have another meeting to discuss the following: • Staff review • Current biz • New biz • Ongoing partnership (4–5th year) Thanks. Johnny 1561 He says that the fourth dot point, "ongoing partnership (4th-5th year)", is consistent with the ownership case advanced by Meneses. By the time the email was sent, it had been 4 years since Directed's business had commenced, and was thus the "4-5th year" of Meneses' partnership with Siolis and Tselepis. 1562 Neither Siolis nor Tselepis responded to this invitation. Neither Siolis nor Tselepis ever sought to correct the obvious assertion in Meneses' invitation that he was their "partner" in the business. 1563 When Siolis was asked whether he had responded to Meneses to tell him that there was no ongoing partnership, Siolis, first, asserted that "Many times, I would say, you know, 'You're not an owner'", then, when pressed, denied saying that he specifically told Meneses that he was not an owner, and instead said that "from time to time, people self-proclaim [what] they want", and finally, admitted that he was not sure if he said to Meneses "You're not an owner". Meneses says that the attempt by Siolis to suggest that he had many times told Meneses that he was not an owner ought be seen as an attempt to craft a narrative which best serves his, and Directed's purposes. 1564 Let me move to what Meneses says about his resignation in 2017. 1565 Meneses met with Siolis and Tselepis on 19 July 2017, and he says tendered his resignation. He handed Siolis a resignation letter that was in fact dated 17 July 2017, which read: Dear Steve & Anthony, This letter serves as my formal notice of resignation from 17th July with my last working day being 16th August 2017. Please be assured that I have thought much about my decision for the past 12 months in which it is purely a career-oriented one. I want to express my gratitude for a rewarding professional association during our partnership with 8 years which will be memorable for many years. I hope we can come up with a fair split of my share of Directed OE Pty Ltd and continue working together in many more OEM projects to come. Thank you again for the courtesy extended to me. Yours sincerely, Johnny Meneses 1566 He says that Siolis' evidence that he did not read the resignation letter that was handed to him when he met with Meneses and Tselepis in July 2017 is unconvincing. 1567 First, it is unlikely that a person, when handed a short letter which was self-evidently a resignation letter, as Meneses told him it was, would not read it. 1568 Second, Siolis gave oral evidence that he was handed a folded letter. Despite having sworn detailed affidavits in October 2017 and June 2019, that was the first time there was any mention of the letter having been folded. Indeed, Siolis' 25 October 2017 affidavit did not even refer to the letter at all, despite being prepared only 4 months after the meeting. 1569 Third, Siolis' affidavit evidence of 17 June 2019 makes no mention of him not having read the letter. Indeed, the affidavit says that the letter "purported" to tender Meneses' resignation, which leans strongly towards Siolis knowing its contents. 1570 Fourth, Siolis' affidavit evidence says that the resignation letter gave "one month's notice", which it did. But Meneses' employment contract provided for him to give one week's notice, and the only answer which Siolis gave when it was put to him that "in order to know that Meneses had given one month's notice, you in fact must have read the letter" was simply to deny reading the letter, rather than offering any other explanation for his knowledge of the one month's notice. 1571 Fifth, Siolis' own affidavit account of the meeting is inconsistent with the objective documents. For example, Siolis deposed that at the meeting Meneses said words to the effect that "I am having trouble with my knee and need to have an operation". He gave oral evidence that at the meeting Meneses said (in respect of his operation) "It's any day now. I'm hoping to get it in a couple of days". But on 4 July 2017 – roughly two weeks prior to the meeting – Meneses had emailed Siolis and Tselepis to tell them that he would be having a knee operation on 20 July 2017. 1572 Further, Meneses says that even if I do not reject the evidence of Siolis that he did not read the resignation letter, Siolis' and Tselepis' evidence to the effect that there was no mention of Meneses' share of Directed at the meeting in July 2017 is inherently unlikely. Self-evidently, Meneses' share in Directed was of significant value. The topic was referred to in his resignation letter. It is said that I can infer that the issue was in his mind at the time of the meeting. It is said to be unlikely that in the course of the discussion the highly significant issue (for all three of the attendees) of Meneses' share in the business was not raised. 1573 In any event, it is said that the events immediately following the July 2017 meeting are consistent with Siolis and Tselepis believing that Meneses had resigned. By his own admission, Tselepis couldn't sleep from worry. He sent various text messages to Meneses. Tselepis also had long telephone conversations with Meneses following the 19 July 2017 meeting: for about 20 minutes in the evening of 19 July 2017, for about 17 minutes on 2 August 2017, and for about 25 minutes on 8 August 2017. The urgency in Tselepis' text messages, including his insistence on talking to Meneses and the reference to "ideas" to address Meneses' concerns, is inconsistent with Siolis' assertion that he had convinced Meneses not to resign in the July 2017 meeting. So, too, are the lengthy telephone conversations which followed the meeting. If Meneses had withdrawn or somehow resiled from his 19 July 2017 resignation, the urgency of the text messages and the number and length of the telephone conversations would have been unnecessary. 1574 As a result of the foregoing, Meneses says that I should find that Meneses resigned at the meeting on 19 July 2017, Siolis read the resignation letter which was handed to him, Siolis and Tselepis understood that he had resigned, and by virtue of the letter and/or the discussion at the 19 July 2017 meeting, Directed knew that Meneses was intending to work for Hanhwa. 1575 Further, Meneses, Siolis and Tselepis met on a number of occasions between August and October 2017. 1576 Further, on 11 October 2017, Meneses emailed Siolis and Tselepis and stated: Gents, I hope you are both well.. As you know we have had another rocket month and still growing for October sales. This year we again will beat the [previous] years. With our new arrange[ment] in mind can you please arrange my share of 50% payment ASAP and balance of 50% within the next 3 years. I have now a new arrangement with Hanhwa in which I will ONLY look after OS markets, for the past 3 months they have another guy looking after AUST. I have also decided to buy into Joma Aust, which with take 30% of my time. (Hence Payout) Please let me know if you have come up with a figure. Also what is happening with the new sales guy or GM? 1577 I should note at this point two matters. First, Meneses' statement that he would only look after OS markets was false. Second, 5 days earlier Meneses had signed a supply agreement with IAL on behalf of the relevant Hanhwa entity. 1578 The email then went on to attach sales figures, which had been provided to Meneses by Jaffe on 2 October 2017. Tselepis' oral evidence was that he did not recall receiving the email. However, when he was then taken to his affidavit of 13 September 2019 (in which he deposed that "When I received that email I did not understand what the email meant"), he agreed that he "did get the email and [he] didn't raise any queries with Meneses about its content". Siolis' oral evidence was that he did not understand the email when he received it. However, his affidavit evidence was different. In his affidavit Siolis says that he considered the email to be a negotiating ploy by Meneses to obtain a higher salary. 1579 So, as Meneses contended, despite receiving an email from him in which he referred to a "new arrange[ment]" concerning certain payments to him, which was an email which Tselepis and Siolis profess they did not understand, neither Tselepis nor Siolis sent a single email or a single SMS, but Siolis may have made a single but unsuccessful phone call to Meneses about it at the time. And when Siolis did eventually send an email to Meneses a week later seeking to catch up, it made no reference to the matters in the 11 October 2017 email. 1580 Further, Siolis' affidavit of 25 October 2017 did not raise the issues contained in the 11 October 2017 email, despite Siolis' oral evidence that he was concerned about the email and wanted to speak to Meneses about it. 1581 The 25 October 2017 affidavit also stated that: [o]ver the last few weeks, [Mr Siolis had] tried to speak with Mr Meneses further about his working arrangements at Directed OE… However, each time I have seen him in the office and tried to speak with him he has left the office after he said he would come and talk to me later in the day. 1582 Meneses made two points. First, Siolis deposes to wanting to speak to Meneses about Meneses' "working arrangements at Directed OE", saying nothing about Meneses' claim to a share in the business. Second, the evidence is inconsistent with Siolis' oral evidence that he had not seen Meneses in the days after the 11 October 2017 email. 1583 Meneses says that the only tenable explanation for Siolis' and Tselepis' failure to question Meneses' claim to ownership in the 11 October 2017 email is that Meneses' email accurately reflected the understanding between the parties, and so did not need to be questioned or further addressed. In those circumstances, it is said that I should infer that Tselepis and Siolis understood the meaning of the 11 October 2017 email in so far as it related to Meneses' ownership interest in Directed, and Tselepis and Siolis were not truly concerned by the ownership claim in the 11 October 2017 email, because it reflected both Meneses' historical ownership interest and a more recent arrangement which they had made with Meneses concerning the payout of that interest. 1584 In summary, Meneses submits that I should find that in May 2009, he became a one-third owner in Directed or its business and that by reason of that ownership interest, he was entitled to profits and shares in the business, which he has not been paid. Further, he says that I should find that it was agreed upon his resignation that his shares would be valued and bought out by Siolis and Tselepis. In consequence of those findings, Meneses says that he is entitled to damages or equitable compensation in respect of the profits and to have his shares valued and bought out by Siolis and Tselepis. Analysis 1585 I would reject Meneses' claims. 1586 It is clear from various documents in evidence that Directed paid interest on the loan and ultimately repaid the loan; see for example Directed's NAB statements, an Account Balance internal schedule prepared by Directed and various emails passing between Meneses and Floudas from time to time. 1587 Now concerning Directed's claims against Meneses, he admits that he was employed by Directed from June 2009 and that during his employment he held the positions of OEM Director and Business Development Manager. He says that on 17 July 2017 he tendered his notice of resignation, although from the evidence it is clear he purported to tender his resignation on 19 July 2017 giving 4 weeks' notice. He otherwise claims the privileges against self-incrimination and exposure to a civil penalty. Moreover, he admits his employment agreement and its terms. 1588 Contrastingly, in his cross-claim Meneses alleges that in 2009 Siolis and Tselepis made representations to him and entered into an agreement with him that he and they would each hold equal shareholdings in Directed and that the profits of the business were to be shared equally. He alleges that he contributed $190,000 as his capital contribution. These matters are denied. In one sense, Meneses' cross-claim cuts across his admissions concerning Directed's claims. 1589 But in any event, in my view, there is no contemporaneous evidence of such an agreement having been reached. The contrary facts support Directed's position that the factual underpinning of the cross-claim must fail. Meneses was an employee. The $190,000 was a loan. And in 2012 Meneses called for the loan to be repaid, which it was, with interest. 1590 Now Meneses alleges that in about May 2009, he, Siolis and Tselepis agreed to conduct the business of Directed in common for their mutual profit. The agreement was said to be partly oral and partly to be inferred from conduct. The agreement was said to contain the following oral terms. First, Directed's business was to be conducted with the object of generating profits to be shared equally between Meneses, Siolis and Tselepis. Second, Meneses was to advance $190,000 to Directed, to be used to pay for the tooling of the DIR4800 to be supplied by Directed to IAL. Third, Directed was to be the corporate entity or instrument used for transactions. Fourth, Meneses, Siolis and Tselepis were to share profits equally between them. Fifth, Meneses, Siolis and Tselepis were to hold equal shareholdings, with Siolis and Tselepis to issue such shares to Meneses. 1591 The agreement was also said to contain an implied term, for reasons of business efficacy, by which Meneses, Siolis and Tselepis were to share equally between them the surplus of Directed's assets, being the value of those assets less the debts and liabilities. Further, it is alleged that the above agreement was a partnership. 1592 But as I say, in my view the evidence does not support such an agreement. 1593 The evidence supports the conclusion that the agreement Siolis and Tselepis entered into with Meneses in or about June 2009 was to the effect that they agreed that Directed would employ Meneses as its General Manager to help Directed design, market and sell in-vehicle electronic products and components to OEMs, and Meneses would loan Directed the sum of about $200,000 to facilitate Directed's engagement in that business. 1594 Now Meneses was not obliged to file a chronology or written opening because he had relied on the privilege against self-incrimination in relation to aspects of his defence. Nevertheless, he elected to file written opening submissions on 2 December 2019. 1595 Now Meneses filed two affidavits in support of his cross-claim on 2 July 2019 and on 6 November 2019. But he declined to give oral evidence, including with respect to his cross-claim. So his affidavits were not read. This was despite his knowledge of facts needed to establish central matters to his claim, going to the existence of an oral agreement with oral terms by which Meneses was to be concerned in the conduct of Directed's business, and share in its profits equally, the existence of a partnership to similar effect, the making of the representations he asserts were made, the asserted acts in reliance on those alleged representations, and the acts of Directed, Siolis and Tselepis which Meneses asserts support his contentions. 1596 Clearly, a Jones v Dunkel inference is available. It is to be inferred that his evidence would not have assisted his case. In any event, Meneses carried the legal and evidentiary onus. 1597 Now Meneses' counsel cross-examined upon and sought to tender various documents. But in my view they did not support him. I will address the relevant documents in the chronology that it is now convenient to set out and reflects my factual findings. I appreciate that there is some duplication of what I have already said. 1598 In around 2008, Meneses contacted Siolis and told him that he was the General Manager of TechAudio. Siolis knew Josie Hart of TechAudio personally, was owed money by TechAudio via a separate distribution arrangement, and so was aware that the business had lost money and was financially constrained. 1599 In about March 2009, Meneses contacted Siolis and told him that things at TechAudio were not going well such as that the staff were not being paid. He suggested to Siolis a discussion about potential opportunities. Meneses then met with Siolis and Tselepis and told them he had very good connections in the OEM industry in Australia and New Zealand, and with overseas manufacturers and suppliers. He told them of an opportunity to supply IAL with an AV unit. He said that TechAudio could not pursue it for financial reasons. He referred to a relationship with Hanhwa which could manufacture the unit, and that he could bring over a team of three other employees. 1600 After the meeting, Siolis telephoned Hart and asked her whether she was pursuing any new opportunities, as there were some things he had been told about new developments. She told him that Meneses had come to her with new opportunities, but she could not fund them or afford to continue to run the business. TechAudio was then placed into receivership and subsequently liquidated. 1601 From March to April 2009, Tselepis, Floudas and Siolis had several meetings and calls to work through the expected costs and projections for setting up a business to pursue the opportunity of supplying an AV unit to IAL, including the capital required, the cost of employing Meneses, three new employees and further employees (e.g. bench technicians), and development costs. 1602 During these communications, Meneses pressed for an answer to his proposal on the basis he might take it elsewhere. Siolis told him, "no problem you are welcome to go with them if you want". He said to Meneses that they were still working on the proposal, but it was clearly going to cost well over a million dollars to get it up and running. It was during one of these calls around this period that Meneses told Siolis he could assist by lending Directed some money if he and Tselepis agreed to set up the business and employ him as its General Manager. Meneses said he would like to take an interest in the new business, but that he was facing potential litigation in New Zealand from Hart in relation to the failure of TechAudio. Therefore, he needed to work as an employee, at least for now. He said he may seek to take an interest in the business in the future, but he did not want to do so at that time. To Siolis' recollection this was the only conversation he ever had with Meneses about him taking an equity position in Directed. 1603 The evidence of both Siolis and Tselepis is that throughout the ensuing years until receiving Meneses' email on 11 October 2017, Meneses did not seek to be paid any dividends or share of the profits from Directed, to be issued with any shares, to be appointed as a director or to be provided with Directed's financial statements. Moreover, there is no documentary evidence of any such requests. 1604 Now by April 2009, Tselepis, Floudas and Siolis had calculated that it would cost around two million dollars to get the business up and running. They decided to speak to IAL directly to satisfy themselves that there was a real supply opportunity. This led to a meeting in around April 2009 by Siolis with Shanks of IAL and Meneses. Shanks provided the necessary assurances. 1605 In around May 2009, Tselepis and Siolis met with Meneses at Directed. Meneses was offered a position of employment including $100,000 per annum plus super, plus allowances. Siolis told him they would match the current salaries of the other employees who would join him from TechAudio. Siolis also said that it would cost a lot of money to get the business up and running, upwards of two million dollars, and if Meneses could lend the business some money that would help. Meneses said words to the effect, "That's fine by me; I will go away and work out how much I can lend". A day or so later, Meneses told them that the three other TechAudio employees, Summers, Dane and Mills, had agreed to come on board. 1606 On 6 May 2009, Siolis and Tselepis changed the name of a shelf company they had to "Directed Electronics OE Pty Ltd" so it could conduct the contemplated business. 1607 Meneses then entered into his employment agreement with Directed. The commencement date was 11 May 2009. He was employed in the position of Business Development Manager. His salary was $100,000 gross per annum, and further it was agreed: The Employee's salary, together with the additional entitlements otherwise provided by this Agreement, is inclusive of and paid in full satisfaction of all payments and benefits that the Company is legally obliged to provide to the Employee (including any overtime payment or other payment for hours worked in excess of ordinary hours). The Employee's effective hourly rate of pay for hours worked is specifically off set against, applied to and absorbs any existing or newly introduced payments or benefits to which the Employee is or may become legally entitled unless specified otherwise. 1608 Further, Directed could terminate Meneses' employment with one week's notice in writing. Further, there was an entire agreement clause: This Agreement contains the entire understanding between the parties concerning the Employment and supersedes any prior agreements or communications between the parties. 1609 Directed also agreed to pay Meneses a vehicle allowance of $18,000 per year and his vehicle fuel, eTag and phone expenses. This would have been the equivalent of a further sum of approximately $25,000 on top of his base salary. 1610 Now Siolis does not dispute that from time to time Meneses also held the title of "OE Director". This reflected Meneses' position as a senior employee and the person responsible for managing the OEM business division. But he was not appointed a director of Directed and nor did he exercise the powers of a director under Directed's Constitution. 1611 Now in mid-June 2009, Meneses lent Directed $190,000. But Directed had not established a bank account or finance facilities at that time. So, the money was deposited into the account of STI. These became part of the funds advanced to Directed by Siolis' and Tselepis' related entities to fund the business operations of Directed, with their contribution exceeding $800,000. 1612 Floudas was cross-examined as to why STI's financial statements and other financial records of Directed did not refer expressly to the loan. But equally there is no evidence in the financial accounts which record or support any submission of an equity contribution by Meneses. In any event, Floudas explained that STI's accounts showed everything in condensed format, were prepared by external accountants, and some of the loan accounts could have been included in other figures. Floudas was confident that the loan would have been recorded in the Directed journals, but Directed no longer has the journals. His evidence was that that Directed was only required to retain them for 7 years and there was no call for them to be produced until shortly prior to the commencement of the trial in late 2019. Floudas did however have the 2013/14 journals recording the repayment of the advance which was clearly recorded as a loan. 1613 Meneses relies on copies of certain accounts. But without more, these are just documents in his possession at the time they were produced. Further, Tselepis says that he never agreed to nor authorised anyone to provide Meneses with the asserted financial statements or management accounts of any company in the Directed group of companies. And he does not know how they came to be in Meneses' possession. Floudas said that he did not provide them to Meneses either. His evidence was that the financial statements to which Meneses referred had not even been prepared by the time Meneses claimed they were given to him by Tselepis. In my view such material does not assist Meneses. 1614 In about November 2012, Meneses told Siolis that he needed the loan repaid because he was doing renovations to his house, and that he wanted it repaid with interest. To manage Directed's cash flow, Siolis told him that it might need to pay it off in instalments. In turn, Siolis spoke to Floudas who said it could be repaid at $30,000 per month. Siolis instructed Floudas to do this, and also to pay Meneses interest once it was repaid, calculated from the day it was lent at the rate Meneses had paid his own bank to borrow the money. This was conveyed to Meneses who said it was fine. 1615 Directed's bank statements record monthly repayments of $30,000 from Directed to Meneses from 3 December 2012 to 3 May 2013. In Directed's bank statements these were recorded as "loan repayment". 1616 On 10 May 2013, Meneses sent Siolis and Tselepis a calendar invite for a meeting in "Steve's office" under the subject "OE Meeting" which included an agenda which referred, at the fourth bullet point, "Ongoing partnership (4-5th Year"). I will say something further about this meeting invitation later. 1617 On 6 June 2013, Meneses emailed Floudas in the following terms: Hi Mate, Are you arranging the final payment of $20,000.00 for my loan? So far you have arranged $180,000.00 on the 3rd of every months. Thanks and speak soon. I would like to clear it ASAP. 1618 On 21 June 2013, Floudas paid $20,000 by way of electronic funds transfer from Directed to Meneses, thereby repaying the loan in full. 1619 On 26 July 2013, Meneses emailed Floudas under the heading, "Directed Loan": Hi Mate, I have the final interest for my Directed Loa[n] which is: • 2010 $11,169.54 • 2011 $13,632.07 • 2012 $13,246.26 • 2013 $7,991.72 Total $46,039.59 Thanks Johnny Meneses Business Development Manager OE 1620 In response that day, Floudas asked Meneses: Hi JM, Thanks for the figures below, can you please provide copies of the interest payments from the bank, as I require to have source documentation to substantiate the payments if there is ever an audit. 1621 On 9 August 2013, Meneses provided Floudas with copies of bank statements which confirmed this information. The description of the item recorded in the statements is "Deposit Directed OE DIR OE Loan". 1622 On 23 December 2013, Floudas caused $46,039.59 to be paid by way of electronic funds transfer from Directed to Meneses in payment of the interest on Meneses' loan. Directed's bank statement records this payment as "interest due loan". 1623 Accordingly, by December 2013, Meneses' loan to Directed had been discharged in full, with payment of interest. 1624 Let me now turn to the events of 2017. 1625 On 4 July 2017, Meneses informed Siolis and Tselepis by email that he had just received a call from his surgeon regarding a knee replacement. He was booked in for 20 July 2017. He added, "I will need some time of[f] work, they say around 3-4 weeks. I know maybe this is not great timing but when is? Anyway as you know I am on leave from this Thursday and return on Monday 17th July." Siolis responded, "So 3 weeks and then another 3-4 weeks???" Meneses replied, "I am taking 7 days plus 3-4 weeks?" 1626 On 17 July 2017, Meneses informed Siolis and Tselepis by email that he would be in the office tomorrow, "we had to delay our flight out of [Bali] due to Ashleigh having a asthma attack over the weekend and ended up in hospital". This email was put by Meneses' counsel to Tselepis challenging his account that the "resignation meeting" occurred on 17 July 2017. However, that date was put forward by Meneses himself. 1627 Meneses says that on 17 July 2017 he tendered his letter of resignation from his employment, saying that he gave one month's notice. However, an evaluation of the evidence suggests that the meeting occurred on 19 July 2017. 1628 It would seem that Meneses waited to resign until immediately after he received confirmation from Shanks at 1.35 pm on 19 July 2017 that the IAL PPC had formally approved Hanhwa Aus as the supplier of the HAU8000, and then sent a meeting request to Siolis and Tselepis, which meeting took place at about 4pm that day. 1629 So, it is curious that the resignation letter would bear the date 17 July 2017. Moreover, this was not the only letter of resignation. There was another letter of resignation Meneses sent from his personal address to his Directed email address on 19 July 2017. The second letter was dated 1 July 2017. Now whereas the first letter indicated that Meneses' last working day was to be 16 August 2017, the second letter indicated an earlier "last working day" of 31 July 2017. Which letter did Meneses hand to Siolis? I am unclear. 1630 Now Siolis agrees he was handed a letter of resignation, but says he handed it back without reading it. And the fact that Directed did not have a copy of the letter to discover and yet Meneses discovered a copy with his signature in colour suggests that Meneses did retain the letter following the conclusion of the meeting. The inference from the evidence is that Meneses described it to Siolis as a letter of resignation, hence Siolis' evidence in describing it as such. He said under cross-examination: I never saw the letter. It was folded, he handed it to me. He verbally said to me, "I want to resign". I said "Are you joking" or actually a bit exclamatory than that. Walked him into Mr Tselepis' office. He sat down and retained the letter. I never had possession of the letter. 1631 The inference to be drawn is that Siolis' evidence that the document was a letter of resignation, is just a conclusion he drew from Meneses' conduct. The contents of the document itself are unknown. Siolis further said that "he started telling me and I exploded". Siolis' conduct is consistent with a person who reacted to a valued senior employee saying he planned to leave and handing over what was apparently a letter of resignation. He did not pause to read the letter. Rather, he engaged with the individual, to try to understand their reasoning, and to try to talk them out of it by seeking to address their concerns. 1632 Tselepis confirmed that Meneses took back the letter of resignation. According to Siolis and Tselepis, after a discussion with Meneses that was, on the part of Meneses, emotional at times, Meneses did not resign from Directed. He did not say anything at all about "coming up with a fair split of his share of Directed OE". Siolis said, "he was telling us all the things that were bothering him and why he wanted to resign". He indicated he was considering working for Hanhwa, but only in relation to international projects. Now had that been the case, it would not have concerned Siolis. 1633 Siolis said further that there was a lot of discussion around Meneses being under-resourced and feeling overwhelmed and his mother and then the meeting ended with him going away to think about it. 1634 As for the prospect of Meneses resigning, Tselepis said under cross-examination, "It didn't conclude, because he said he would go away and think about it, so we didn't have an answer." Further, "We left the meeting open in the sense that he would get back to us". Tselepis was concerned about him leaving, "He was a key employee". 1635 Now Meneses says that by virtue of the letter and/or the discussion at the 19 July 2017 meeting, Directed knew that Meneses was intending to work for Hanhwa. But there is no evidence from Meneses to such effect. The letter of resignation, if it was the letter he had in his hand that day, includes nothing to that effect. The evidence of Siolis and Tselepis is that Meneses told them during the meeting on 19 July 2017 that he was considering working for Hanhwa, but only in relation to projects not in Australia. In any event, it is not credible that Meneses told Siolis and Tselepis during that meeting that he had accepted a position with Hanhwa as its Sales Director. That would require me to accept that, notwithstanding this knowledge, Siolis and Tselepis took no action to quarantine Meneses from further contact with Directed's customers until the expiration of his notice period, and that they did not take other steps to protect Directed's business. This is against their evidence as to what they would have done if they had been told. 1636 Moreover, the contrary occurred, in that between 17 July 2017 and 27 October 2017, Meneses had no further discussions and had no further communications with Siolis or Tselepis advising that he wished to resign, he attended the business premises of Directed and performed his normal duties on a full time basis as a senior employee of Directed with management responsibility, and he received his salary and superannuation from Directed as previously. Indeed he travelled and incurred expenses, and claimed and received reimbursement from Directed of expenses which he claimed were incurred in furthering the business of Directed. 1637 Further, consistently with the fact that Meneses did not resign from Directed even if that had been his intention, on 26 July 2017, he provided Siolis, Floudas and Tselepis with a medical certificate, stating that he was suffering from a medical condition as a result of major surgery, and that he would be unfit to perform work for Directed from 20 July 2017 to 8 September 2017. The cover email had the subject, "JM Sick Leave cert July 2017". The email stated: Gents, As you might know by now I am at home after this knee replacement operation. The amount of pain it is unbelievable. I am taking 28 different tablets a day. It is very painful. Anyway please find attached certificate. I will be on email and on phone if anyone needs anything. Speak soon. 1638 Further, immediately after the meeting on 19 July 2017 and until about 12 September 2017, Tselepis and Meneses had a series of text messages. After the meeting, Tselepis said, "Eh can you talk?". There was no response. On 21 July 2017, Tselepis asked Meneses how the operation went. He was told it was painful. On 28 July 2017, Tselepis said, "Dude your killing me by not replying… We want you to stay and we have a few ideas to address any concerns you have. You can't sleep from pain but I can't sleep from worry". This is consistent with Tselepis' evidence that there had not been closure after the 19 July 2017 meeting and that the prospect of Meneses resigning remained. Conversations held between Tselepis and Meneses during this period are consistent with Tselepis seeking to talk Meneses out of resigning. 1639 Further, as to Meneses' continued employment at Directed, Meneses took a trip to New Zealand in October 2017 for which he claimed reimbursement from Directed. 1640 Further, Siolis recalls that Meneses returned to the office in early September 2017 consistent with the medical certificate he provided to Directed. Meneses made decisions, spoke to suppliers, spoke to customers, had customer meetings and went to conferences. Floudas also confirmed that Meneses continued to do everything he had done previously. 1641 Now as I have already indicated, Meneses says that he resigned his employment with Directed on 17 or 19 July 2017. 1642 But I agree with Directed that there is significant other evidence to the effect that Meneses was still carrying out employment duties beyond 17 July 2017 and through to November 2017, receiving salary and expenses, providing a medical certificate, and sending various emails attending to Directed's business (or at least purporting to do so) to Siolis and Tselepis including advising that he would be in New Zealand between 3 and 5 October 2017 on Directed's business. Further, Meneses continued to use his security pass at Directed. 1643 To the extent that Meneses says that he only used his security pass 19 times between 26 July 2017 and late October 2017, he was purportedly on sick leave until 8 September 2017, however, he travelled with Lee and Shanks to South Korea between 21 and 25 August 2017 to facilitate the audit of Hanhwa's manufacturing and supply facilities for the benefit of the Hanhwa parties, then apparently was in New Zealand from 3 to 5 October 2017; he made expense claims on Directed for this trip; he was in Japan on 26 and 27 October 2017. 1644 Clearly, he was still employed by Directed and Lee knew that. Now at this point I should deal with another aspect. 1645 Meneses alleges that in or about August 2017, he verbally entered into an agreement with Siolis and Tselepis that Meneses would consult to Directed until September 2017 and Siolis and Tselepis agreed to immediately obtain a valuation of his one-third share in Directed and to pay him half of his one-third share, and to pay to him the remaining half of his one-third share within 3 years. Siolis and Tselepis dispute that there was any such discussion or agreement. 1646 Further, on 11 October 2017, Siolis and Tselepis both received and read the email from Meneses ("…we've had another rocket month and still growing for October sales"). This was the email which asked Siolis and Tselepis to "please arrange my share of 50% payment ASAP and balance of 50% within the next 3 years". They were surprised by this language and considered it a negotiating ploy. I will say something further about this in a moment. 1647 On the same day that Meneses sent this email to Siolis and Tselepis, he flew out with Lee to Hong Kong, China and Japan. Siolis was unsuccessful in tracking him down. They exchanged text messages whilst Meneses was overseas. On 18 October 2017, Siolis emailed Meneses, copied to Tselepis, asking him, "When are you back, so we can catch up?". Siolis said he wanted to sit down face-to-face and talk with him about it so that it could be explained. 1648 Further and by way of context, Tselepis and Siolis are business partners. Neither of them at any time had been paid a salary, superannuation or the other benefits conferred on Meneses pursuant to his employment agreement. Tselepis and Siolis each received 50% of Directed's profits, without any guarantee that there would be such profits. Further, as business partners, Siolis and Tselepis either in their own right or via their wives and other companies had been guarantors for all of Directed's finance facilities. They also mortgaged their properties to secure Directed's finance facilities. 1649 In addition, Siolis and Tselepis as business partners injected $800,000 of capital into the new Directed business in its first three months. They also provided capital and guaranteed borrowings to purchase and build new premises for Directed. 1650 Meneses was not obliged to do any of these things. Had he been a one third business owner as he suggests, he would not have been an employee. He would have been required to accept the same risks and make the same commitments as Siolis and Tselepis, which he did not do nor was he required to do. For example, Meneses was not a director of Directed and exposed to the liabilities of being a director. Further, when Meneses was repaid his loan progressively from late 2012, this was done with interest. Siolis and Tselepis would not have agreed to this if Meneses had revealed any expectation at that time of an entitlement to one third of Directed's profits and capital value. 1651 Let me make some concluding remarks and in this respect I should begin with the paucity of documentary evidence in favour of Meneses. 1652 First, one has Meneses' meeting invitation in May 2013 which referred to, "Ongoing partnership (4-5th year)". But neither Tselepis nor Siolis could recall the invitation or whether the meeting occurred. The term "partnership" is incapable of having any legal characterisation without Meneses being prepared to give evidence about it. In its shorthand usage in this instance, it is inherently ambiguous. It might have been a suggestion that Meneses wanted to discuss the future prospect of him having an interest in Directed, a matter he had alluded to with Siolis once before. Equally, it could have been a reference to the Directed / Gridtraq JV. It should be noted that the Directed/Gridtraq JV was consummated in February 2010. By the date of the meeting invitation, the JV was in its 3rd year. The meeting invitation could equally have been referring to planning for the 4-5th year of that "partnership". There is no proof that the discussion ever occurred, or what it entailed. 1653 Second, one has the contested letters of resignation dated 1 July 2017 and 17 July 2017 respectively. But these do not support Meneses. 1654 Third, one has the 11 October 2017 email from Meneses to Siolis and Tselepis. But the email is further evidence that Meneses was still working for Directed — "Year to date sales figures. Gents, hope you are both well. As you know, we've had another rocket month and still growing for October sales. This year, we again will beat the previous year". This is despite his assertions that he resigned in July 2017 and was legitimately working for Hanhwa Aus from 16 August 2017. Further, it also contained incorrect statements that Meneses had "a new arrangement with Hanhwa in which I will ONLY look after OS markets" and "for the past 3 months they have another guy looking after AUST". Further, the timing of the email was self-serving. The email was contrived to pursue a windfall gain in negotiating an exit from Directed. It is not probative evidence of any agreement with Siolis and Tselepis allegedly reached in 2009. 1655 Fourth, there are a series of documents that provide direct evidence of the parties' intentions that the $190,000 paid by Meneses to Directed (indirectly via STI) was made by way of a loan. The documents exchanged in relation to the repayment of Meneses' loan in 2013 make clear that both parties considered the sum to have been a loan. This is probative contemporaneous evidence manifesting the parties' intentions. Bank statements and journal entries corroborate that this was how the payment was characterised. The loan was repaid with interest. 1656 Let me deal with some other matters. 1657 First, Meneses' acceptance of a salary of $100,000 per annum terminable on one week's notice was not uncommercial. In 2009 a salary of $100,000 was not a pittance. Meneses had the benefit of salary, superannuation, a substantial motor vehicle allowance and additional entitlements under his employment agreement. He also travelled a great deal. Directed reimbursed Meneses for all his business expenses. 1658 Second, Meneses says that the only available inference from the fact that he was allowed to sign agreements from time to time on behalf of Directed is that he was a director of that company. That is not correct. Meneses signed documents for other companies of which he was not a director. Such an inference cannot arise. 1659 Third, the express terms of his employment agreement are in tension with the alleged oral collateral agreement. There are terms which do not fit with the possibility of a preceding oral collateral agreement struck as Meneses alleged. So, it was provided that Meneses' salary was inclusive of and paid in full satisfaction of all payments and benefits that Directed was legally obliged to provide to Meneses. And it was provided that "This Agreement … supersedes any prior agreements or communications between the parties". 1660 Fourth, Meneses conducted himself consistently with the terms of his express employment agreement. The supply of a medical certificate when seeking to take leave is a case in point. The seeking of reimbursement of business-related expenses by providing receipts or other verification is another such example. This is the conduct of an employee. 1661 Finally, the 2009 collateral agreement as alleged by Meneses would have had greater significance than his employment agreement. Yet there is nothing in writing. What is alleged is vague. The terms are unclear. How was "splitting the business three ways" intended to work in practice? Siolis and Tselepis have pointed to a range of matters governing their relationship with each other. To bring in someone new without any form of documentary evidence recording the arrangement, in circumstances where there is an express employment agreement, is problematic. And who were the precise parties to this so-called collateral agreement? Tselepis? Siolis? Shareholder entities? 1662 I will dismiss Meneses' cross-claim given that there was no agreement of the type that he alleges or indeed any other basis for his assertion of what amounts to a form of equity interest or an entitlement to the sharing of profits. 1663 Given my principal conclusion, it is unnecessary to deal with the other arguments raised by way of defence to the cross-claim such as estoppel. 1664 Let me now turn to the claims against Mills. The case against Mills 1665 Directed's principal claims against Mills involve both primary and accessorial liability. It is said that he is primarily liable for breaches of the terms of his employment agreement, his fiduciary duties and ss 182 and 183 of the Corporations Act. In my view these claims are clearly made out. 1666 In my view, Mills played a significant part in the misuse of Directed's confidential information. Further, within his restraint period, Mills provided information and advice to Oh and other members of the Hanhwa team about the carriage of Directed's business, thereby enabling Hanhwa Aus to compete for such business. These claims of Directed have been made out. 1667 Further, there is little doubt that Mills knowingly assisted Meneses' breaches of duty as well as committing the tort of inducing breaches of Meneses' employment agreement. But as to Directed's case that Mills induced breaches of the Hanhwa Enterprise and Hanhwa Korea Agreements by his conduct, I should say now that this latter claim has no substance to it. 1668 Now Mills did not give evidence and asserted the privilege against self-incrimination. 1669 Let me begin by saying something briefly about Mills' employment with Directed, although I have set out relevant terms of Mills' employment agreement earlier. 1670 Mills commenced employment with Directed on 1 June 2009 pursuant to an employment agreement of the same date. He was employed in the position of project manager, reporting directly to Meneses. 1671 Mills joined Directed along with Dane and Summers. Mills, Dane and Summers had all previously worked under Meneses at TechAudio, a former supplier of AV units and accessories to IAL, before TechAudio's financial demise in about 2009. 1672 Mills was a full time, salaried employee of Directed. He was paid a gross annual starting salary of $60,000, subject to annual review. He was also provided with a mobile phone to be paid for by Directed. 1673 Mills was required to perform the duties set out in Schedule 1 of his employment agreement. Schedule 1, headed "Employee Job Description", provided as follows: Assist the Business Development Manager – OE Division [Mr Meneses] • Assist the Business Development Manager – OE Division with account management of his customers on a project basis Printing/Artwork/Media • Use Adobe Creative suite to design and produce required desktop publishing, handbooks and graphic design as per project requirements • Conceptualise and provide concept drawings using digital sources • Modify and complete CAD type drawings used in Directed OE products. General documents • Complete documents and spreadsheets as per Business Development Manager – OE Division requirements • Prepare PowerPoint presentations as per Business Development Manager – OE Division requirements Service Department • Assist the service department at times as per requirements • Help introduce Toll IPEC shipping into the service changeover system • Administrate Toll IPEC changeover shipments until alternative staffing is introduced Quality Assurance Department • Ensure timely Quality testing is performed on the products shipped for the OE customer projects • Liaise with the Quality Assurance Manager to complete Product part approval process (PPAP) documents to gain business. Scheduling • Assisting the Business Development Manager – OE Division with scheduling and forecasting to ensure the timely delivery of product to customers as per their forecasts. Product Testing • Assist with product testing of new product when required. Providing Evaluation reporting as per requirements. 1674 Mills accepts that he was employed pursuant to, and obliged to comply with the terms of, the employment agreement as pleaded against him. He also accepts that from the commencement of his employment to 8 March 2017 he owed fiduciary duties to Directed to act with good faith and fidelity in the performance of his duties as an employee, not to misuse confidential information of Directed, and not to infringe Directed's copyright. 1675 Now Mills has sought to limit the scope of his obligations on the basis that he was a "relatively junior employee of Directed". And he has asserted that he did not owe fiduciary duties to Directed commensurate with those owed by Meneses. 1676 Of course he was a more junior employee than Meneses. But as Mills' employee job description makes clear, he was required to have ongoing customer contact. He was required to "modify and complete CAD type drawings used in Directed OE products", to "liaise with the Quality Assurance Manager to complete Product part approval process (PPAP) documents to gain business", and to "assist with product testing of new product when required". 1677 Now Mills' second proposition is that the scope of his duties to Directed were more limited than Meneses. In one sense that is incorrect. Mills admitted that he owed duties to Directed to act in good faith and with fidelity in the performance of his duties from time to time. He admitted that he owed obligations to Directed pursuant to ss 182 and 183 of the Corporations Act. The fact that he was more junior than Meneses does not alleviate or minimise those obligations. Pursuant to his role, he was in a position of trust. 1678 Now Mills' employment was terminable by either party on one week's notice. Directed could also terminate Mills' employment immediately without notice if he failed or refused to comply with a reasonable, lawful directive given to him by Directed or Directed's representative. 1679 Mills gave notice of his resignation from Directed, effective 22 February 2017, in a letter addressed and sent to Meneses at Directed on 15 February 2017. So, Mills terminated his employment under the employment agreement on 22 February 2017, having given the requisite notice of one week. Nevertheless, Mills continued to work at Directed until 8 March 2017. 1680 Following his departure from Directed, Mills commenced employment with Hanhwa Aus from 14 March 2017 in the position of production and IT manager. His role involved placing job orders with the Production Team at Hanhwa Korea to supply customers in Australia, forecasting sales, logistics and IT matters such as maintaining the server and cloud database. 1681 Now Directed asserts that Mills' role was the equivalent of a chief operating officer for Hanhwa Aus. But Mills' letter of employment at Hanhwa Aus dated 9 February 2017 describes his role as production manager and with a salary of $80,000; there is also an unsigned, incomplete Hanhwa Aus employment agreement with no position description, salary or list of duties. Directed's characterisation is over-stated. OE Solutions/Meneses conduct 1682 As I have already indicated, Directed alleges that between 2010 and 2017, Meneses and OE Solutions dishonestly engaged in conduct whereby Meneses represented to Directed that OE Solutions was an independent supplier of products and components at reasonable and competitive prices. 1683 OE Solutions placed orders for components and products required by Directed with Kenmarco Industries Pty Ltd, which was a supplier from which Directed purchased other products directly. 1684 Kenmarco supplied components or products to OE Solutions in accordance with its orders. OE Solutions then on-sold the components and products to Directed at prices higher than it purchased the products from Kenmarco. 1685 It is alleged, which I have accepted, that OE Solutions was not an independent supplier and was owned or controlled by Meneses and the prices at which OE Solutions supplied products to Directed were not reasonable and competitive prices for such products because Directed could have purchased the products directly from Kenmarco at a lesser price. 1686 Now as I have already indicated, these allegations have been made out against Meneses and OE Solutions. 1687 But Directed also alleges that Mills was aware of and assisted Meneses in engaging in such conduct. Directed alleges that by reason of his participation in such conduct, Mills breached relevant terms of his employment agreement, his fiduciary obligations and his duties under ss 182 and 183. I accept Directed's case in this respect. 1688 Further, it is alleged that Mills knew of Meneses' employment agreement with Directed or the substance of its terms, and knew that Meneses owed fiduciary obligations and duties under ss 182 and 183 and that by participating in such conduct, Mills with such knowledge was directly or indirectly knowingly concerned in or party to Meneses' breaches or contraventions of ss 182 and 183. I agree. Further, it is said that Mills was thereby a person involved in those contraventions for the purpose of s 79. I also agree. 1689 Further, it is said that he participated in and assisted Meneses in his dishonest breaches of his fiduciary obligations with knowledge of the conduct which constituted those breaches of fiduciary duty in circumstances which would have indicated the dishonest and fraudulent nature of that conduct to an honest and reasonable person. Further, it is said that Mills with the relevant intention and in the knowledge that it would cause a breach of contract, induced Meneses to breach relevant clauses of his employment agreement. I do not accept Directed's case against Mills in this last respect. There was no such intention. 1690 Now Mills says that his role at Directed was to assist Meneses in carrying out Meneses' functions, including with respect to account management of Meneses' customers, completion of documents, and scheduling and forecasting to ensure timely delivery of product to customers. Further, Mills says that he was contractually obliged to follow all lawful orders and instructions of Meneses. So, Mills says that he was merely carrying out his employment obligations when directed by Meneses to engage in the relevant conduct, and that he had no reason to suppose that the conduct was untoward. But I do not accept his self-justification or so called lack of awareness. 1691 Let me deal in more detail with Mills' arguments and self-serving excuses concerning the OE Solutions conduct. 1692 Now between 2010 and 2017, OE Solutions supplied electronic products to Directed for supply to customers. So, Directed's dealings with OE Solutions fell within the scope of Mills' employment. Accordingly, for Mills to be liable, he says that Directed must show that his acts of assistance occurred in circumstances where he had relevant knowledge of the alleged dishonesty inherent in the OE Solutions conduct at a time when he was otherwise carrying out his functions as Project Manager. 1693 Now clearly Mills was involved in aspects of and with knowledge of the invoicing to OE Solutions by Kenmarco and Meneses' desire to hide relevant aspects from Directed; see for example the emails between Meneses and Mills on 6 March 2014 and 18 October 2016. But nevertheless, Mills persists in saying that Directed has failed to establish that case. 1694 First, he says that there is no evidence that he was aware or could or should reasonably have been aware of the terms of Meneses' employment agreement. Meneses' employment agreement, which provided for a commencement date of 11 May 2009, bears the date of March 2009, some three months before Mills commenced employment on 1 June 2009. He says that there is no reason to suggest that a subsequent employee such as Mills should be taken to have had notice of the terms of employment of existing employees. There is an air of unreality to this assertion. In my view he can be taken to have known what I would describe as the standard terms or duties applicable to the type of role Meneses was carrying out. 1695 Second, he says that it was a notorious fact at Directed that Meneses was, ostensibly at least, a director of the Directed business. Now Meneses used the title of "OE Director" during his time at Directed, referring to the original equipment division of the broader Directed group. Meneses also co-signed with Siolis various business documents. Dane gave evidence that Meneses told him he was a director of Directed, and that his role as "OE Director" was printed on all of the documentation that Dane saw over the years. Summers likewise understood that Meneses was a director of the Directed business. Further, Mills says that contemporaneous records show that Meneses considered himself to be an owner of the Directed business. Mills says that in those circumstances, it cannot be said that an employee in his position ought reasonably to have understood that what Meneses was doing was wrong and in breach of his duties. I disagree. 1696 Third, the evidence relied upon by Directed indicated that Mills from time to time assisted Meneses with the provision by Meneses of OE Solutions invoices to Directed. But the earliest evidence of Mills doing so was on 8 February 2012, some two years into the OE Solutions–Directed supply relationship. Furthermore, each such instance of assistance by Mills involved the use by Mills of his Directed email address. Mills says that whilst these matters suggest that he may have been aware of an association between Meneses and OE Solutions, they are inconsistent with any active participation by Mills in the concealment of such an association from Directed. Mills says that if he were consciously involved in a scheme to conceal from Directed the association between OE Solutions and Meneses, it is unlikely that he would have done so from his Directed email address, and at a point in time well after the supply relationship had commenced. But I have little doubt that Mills was aware of Meneses' suspect behaviour to say the least. 1697 Fourth, Mills says that the evidence shows that related party dealings were common within the Directed group. Moreover, in Floudas' time as chief financial officer, entities associated with Floudas had invoiced Directed for his services. In those circumstances, from the perspective of any reasonable Directed employee in the position of Mills, there was not necessarily anything untoward in the fact that an entity associated with an apparent director and owner of Directed was engaged in supplying products to Directed, including by way of on-supply from Kenmarco, and invoicing accordingly. But it seems to me that Meneses' behaviour as known to Mills was clearly far more egregious. 1698 Fifth, Mills says that the fact that invoices from OE Solutions were received by Directed via Meneses was not unusual, as invoices from Hanhwa Korea were provided to Directed in a similar manner. But this point conveys an incomplete picture of what Mills knew. 1699 Sixth, Mills says that when Directed accounts staff made payments to OE Solutions, the person they notified was Meneses, and Floudas accepted that employees of Directed would have understood that there was a close association between Meneses and OE Solutions. Floudas gave evidence that Meneses was the person that was responsible for OE Solutions. Floudas said that Meneses made it clear that no one was to have contact with them other than himself. An email Mills sent Meneses on 19 May 2015 supports this. In that email, Mills stated, "Johnny, can you please forward this to OE Solutions. It is for stock." Mills' earlier email to Meneses of 6 March 2014, in which he stated, "…[b]eware of Kon chasing the supplier for the HDIR100 / HDIR101 quantity stuff up. The supplier needs to provide a new invoice asap…", is to be understood in this context. Properly understood, Mills' email suggests no more than that he was attempting to give effect to the stated wishes of his boss, Meneses, that all dealings with OE Solutions be directed through Meneses, in light of his understanding that Floudas intended to "chase" the supplier for a "quantity stuff up". Were it otherwise, there would have been no need for Mills to draw a distinction between Meneses and OE Solutions in such communications. Again, this argument is tissue-thin. 1700 Seventh, Mills says that the evidence indicates that he was not privy to pricing information passing between Kenmarco and OE Solutions, and therefore was not aware of the extent or nature of any mark up on goods ultimately supplied by OE Solutions to Directed. Indeed, he says that Meneses sought to actively exclude employees such as Mills from these communications. In an email dated 15 June 2015 from Meneses to representatives of Kenmarco, copied to Summers, Meneses stated: Can you please make sure that you ONLY supply cost to me or Mark please! If any of me [sic] team ask for any pricing just say speak to me! 1701 On 30 January 2017, a representative of Kenmarco sent an email to Meneses as follows: Hi Johnny Just noticed on Craig's schedule that HDIR141 is now a Directed part. We have in our system a cost of $20.84 ex gst. Do I get an order from Craig and give him this price? 1702 On 14 February 2017, Meneses sent an email to a representative of Kenmarco, Jacinta Martin, in response to a query from the latter about whether Kenmarco should invoice Directed or OE Solutions, advising, "[a]ll invoices now to Directed". Meneses' decision to cease supply through OE Solutions was preceded by a requirement imposed by Tselepis that all harness pricing be sent to him for review and sign off in advance. 1703 The next day, 15 February 2017, Mills sent an email to Meneses stating that Floudas had advised that Tselepis wanted all harness pricing signed off by him, and that he had not managed to get the attached signed off until this was done. The email attached a Directed purchase requisition dated 10 February 2012 for the supply of harnesses to Directed from Kenmarco. 1704 Against that backdrop, in essence the following exchange occurred between Martin of Kenmarco and Meneses on 21 and 22 February 2017: Kenmarco: Hi Johnny, I am getting asked for prices and I have more goods to send Thursday. What would you like me to do? Meneses: Please send the last invoices with the correct cost as per the OE sheet. Kenmarco: Hi Johnny, Sorry can you clarify please "OE Sheet" I have Directed order number prices from Craig…with the strange prices or The sheet I sent you has: Current Craigs (directed) New I don't have an OE sheet as I do not know what you charged. 1705 The reference to "order number prices from Craig…with the strange prices" appears to be a reference to a Directed purchase order addressed to Kenmarco and dated 15 February 2017, which reflected the pricing in the Directed Purchase Requestion attached to Mills' email to Meneses of 15 February 2017. This is because on 24 February 2017, Martin sent Meneses such a Directed purchase order by email, containing Kenmarco's handwritten proposed "adjusted prices" recorded over the top. Further, the "sheet" that Martin sent Meneses as referenced above, or a version of it, appears to have been sent by email from Martin to Meneses on 24 February 2017. It may be inferred from these documents that the "adjusted" or "new" prices were prices that Kenmarco and/or Meneses had arrived at, in light of Meneses' decision to cease supply through OE Solutions. 1706 Mills says that the above emails indicate that, consistent with Meneses' request of Kenmarco of 15 June 2015, Mills was actively excluded from pricing matters between Kenmarco and OE Solutions, as distinct from the pricing that Directed ultimately paid for harnesses from one or other of those suppliers. This is also consistent with evidence given by Pieries that all pricing information for OE Solutions and Kenmarco was done through Meneses. 1707 Accordingly, Mills says that the evidence does not support a finding that either Mills, or a reasonable employee in his position, would have had knowledge of the essential features of the OE Solutions conduct that gave rise to the alleged dishonesty, namely the marking up of Kenmarco goods by OE Solutions and the nature and extent of it. 1708 Again, there is an air of unreality to Mills' arguments. In my view he either well knew or at the least was recklessly indifferent to such a scenario. 1709 Eighth, OE Solutions' prices were substantially cheaper than Hanhwa Korea's prices for the equivalent products, and so it made commercial sense to source harnesses locally between 2010 and February 2017. So, Mills says that a reasonable employee in his position, responsible for assisting with the sourcing of harnesses for supply to customers, would have understood that there were substantial commercial benefits to Directed associated with the supply of harnesses from OE Solutions. 1710 Moreover, Siolis gave evidence that he trusted Meneses' judgment on such matters as the local sourcing of harnesses. Siolis assumed Meneses had good reasons for doing things the way he did on the original equipment side of the business. Siolis also accepted that he would have required good reason to question Meneses' judgment on original equipment matters. 1711 Separately, when Floudas asked questions of Meneses about OE Solutions, he trusted the responses Meneses gave him and on that basis did not look further into the matter. Further, Mills says that Meneses' influence was illustrated by the following evidence given by Summers: Well, with the Meneses thing, he is a director of a company. You don't sort of question what's going on. … It's not my place to question him. He is my supervisor. He is the director. I am not going to question him. 1712 In these circumstances, Mills says that the evidence does not provide a sufficient basis to conclude that either Mills or a reasonable employee in his position would have thought otherwise than that there were cogent commercial reasons for Directed's supply arrangements with OE Solutions, as coordinated by Meneses, and would not have felt the need to question those arrangements. Again, I do not accept this, particularly in the absence of Mills giving evidence. 1713 Ninth, Mills says that there is no evidence that he derived any benefit from the alleged OE Solutions conduct. But that is no sufficient answer to Directed's case. 1714 Generally, Mills says that I cannot be satisfied that he relevantly participated at any stage in the alleged OE Solutions conduct of Meneses and OE Solutions, in circumstances where he was aware, or a reasonable employee in his position would have been aware, of the dishonest and fraudulent nature of that conduct. Neither can it be said that he was aware that Meneses was making improper use of his position or information to gain an advantage for himself. Further, it cannot be said that Mills intentionally procured any relevant breach of Meneses' employment agreement in respect of the alleged conduct. 1715 I would reject Mills' defence of these claims in relevant respects save as to the last matter where I would reject Directed's assertion concerning the tort of inducing breach of contract. 1716 Mills had relevant knowledge of the alleged dishonesty inherent in the OE Solutions conduct and actively participated in it. 1717 On 11 July 2013, Mills informed Meneses that Meneses needed to change the email address that was sending OE Solutions' invoices to Directed, because at that point it was evident that they were coming from Meneses' personal email address. I agree with Directed that by this email Mills advised Meneses to change the email address so that it would not be apparent to Directed that OE Solutions invoices had any connection to Meneses. Mills was aware that OE Solutions was an entity owned by Meneses, that it (and thereby Meneses) was supplying products to Directed, and that this connection had to be kept hidden from Directed. 1718 On 6 March 2014, Mills informed Floudas of an error between the quantities of two products invoiced by OE Solutions and the quantities delivered to Directed. Mills said he would "attempt to get a replacement invoice tomorrow". Mills blind copied Meneses to this email. Now Mills reported to Meneses. In the ordinary course, Mills should have copied Meneses into the email openly. That he blind copied him suggests a mutual need for secrecy. 1719 Further, immediately after sending this email, Mills sent an email to Meneses stating "Beware of Kon chasing the supplier for the HDIR100/HDIR101 quantity stuff up. The supplier needs to provide a new invoice asap". Attached to the email were a bundle of invoices. In addition to the incorrect invoice from OE Solutions to Directed, there were a number of invoices from Kenmarco to OE Solutions. Mills asked Meneses "Could you please catch up with these tonight". 1720 In December 2015, Mills advised his wife that she should only contact Meneses using jm@oesolutions.net.au in order to keep discussions off Directed's servers. 1721 On 13 October 2016, Meneses received two invoices from Kenmarco, one addressed to Directed and the other addressed to OE Solutions. On 18 October 2016, Meneses forwarded the email and attached invoices to Mills requesting him to "Delete the OE invoice!". 1722 Mills' knowledge and involvement was hardly above board. 1723 Now Mills submits that the use of his Directed email address is evidence that he was not consciously involved in a scheme to conceal from Directed the association between Meneses and OE Solutions. But this is contradicted by various emails and other evidence of wrongful conduct by both Meneses and Mills using their Directed email addresses. 1724 Further, I agree with Directed that Mills has attempted to draw a false analogy to the directors of Directed and its CFO having separate entities that supplied products and services to Directed. But those commercial arrangements were disclosed and consented to by the directors and owners of Directed. Contrastingly, the OE Solutions conduct was not disclosed to Directed and lacked Directed's authority and consent. Mills knew this. 1725 Further, Mills' contention that an employee in his position would not have thought the OE Solutions conduct to be untoward could not be tested. In any event the test is not that of an employee in his position. The test is whether Mills advanced evidence to displace the obvious inference that he was well aware of the dishonest conduct. He did not do so. 1726 Further, I agree with Directed that the OE Solutions' invoicing process was convoluted and commercially unusual. And as is apparent from Mills' conduct, it can be inferred that Mills knew that its unusual nature was constructed so as to disguise Meneses' and Mills' involvement on behalf of OE Solutions. 1727 Meneses would send an invoice from his personal email address to his Directed email address, and then forward the email and attached invoice to Mills, deleting all evidence that it originated from his personal email address. Later, Meneses established an Invoice2Go account which automated the sending of invoices to Meneses' Directed email address. However, those emails identified the "Reply-To" email address as being Meneses' personal email address. Mills was involved in setting up the OE Solutions email addresses and other business software applications used to conduct the OE Solutions business. 1728 Further, Mills or other employees of Directed would send purchase orders and remittance advices addressed to OE Solutions to Meneses, who would then forward them to his personal email address. This conduct, by which ordinary stock supply documents should be sent first to the general manager of a company to personally forward them on to the supplier, is a further indication that Mills was well aware of the dishonest conduct. 1729 Now Mills submits that there was nothing unusual in the fact that invoices from OE Solutions were received by Directed via Meneses. But the evidence of Floudas was that he found it to be unusual and frustrating. 1730 Now Mills submits that he was not privy to pricing information between Kenmarco and OE Solutions and that he did not have knowledge of the nature and extent of the marking up of Kenmarco goods by OE Solutions. But Mills was acquainted with the price that OE Solutions charged Directed for products and he was in possession of invoices from Kenmarco to OE Solutions. One example in evidence was the invoices attached to Mills' email to Meneses on 6 March 2014 warning Meneses that Floudas was "chasing the supplier". There was an invoice from Kenmarco to OE Solutions for a particular product at one price and an invoice from OE Solutions to Directed for the same product substantially marked up. 1731 Further, whether for breach of contract or fiduciary or statutory duties, there is no requirement to show any benefit to the wrongdoer. That can be assumed in favour of Mills, but it is no answer. 1732 In my view Directed has made out its claims against Mills concerning the OE Solutions conduct, save and except in this context the tort of inducing breach of Meneses' employment agreement, Misuse of confidential information 1733 The allegations of misuse of confidential information against Mills principally focus on the period following his departure from Directed on 13 March 2017 and the commencement of his employment with Hanhwa Aus thereafter. Directed alleges that throughout that period, Mills misused confidential information obtained in the course of his employment with Directed for purposes connected to his employment with Hanhwa Aus. 1734 Now under the terms of his employment agreement, Mills owed a duty to Directed to keep confidential all confidential information of Directed obtained in the course of his employment. Further, he owed an equitable duty of confidence. In my view, these contractual and equitable duties of confidence applied to Mills both during and after his employment with Directed, in respect of any confidential information of Directed obtained by Mills throughout the course of that employment. 1735 I have little doubt that Mills misused Directed's confidential information. 1736 Now Mills has made the following preliminary observations. 1737 First, Mills says that it was not, without more, a breach of the duty of confidence for him to have been in possession of confidential information of Directed at the time of execution of the search order. He says that he was a salaried employee of Directed, required to work such reasonable additional hours as was necessary to fulfil his duties. He says that he routinely sent work-related documents to his personal email address throughout the course of his employment with Directed, and that it may be inferred that he likewise brought work-related information home with him from time to time in connection with his employment. 1738 Now Mills accepts that Directed had a right under the employment agreement to request the delivery up of confidential information at any time, but he says that there is no evidence that it sought to exercise that right at any stage during or after Mills' employment. So Mills says that the mere fact of possession by him, as a former employee of Directed, of Directed's confidential information does not give rise to an inference that any such information was necessarily misused. But in my view, at the time of execution of the search order Mills should not have had much of this material in his possession. I will return to the detail later. 1739 Second, Mills says that Directed cannot legitimately complain about the use by him at Hanhwa Aus of general know-how and experience built up by him over many years at Directed unless that application involves something that is unlikely to be ascertained by independent inquiry or experience. He says that the law does not require an ex-employee to engage in an artificial exercise of trial and error to ascertain information that forms part of the ex-employee's general experience and know-how. He says that without more, complaint cannot be made of a former employee's decision to ply his trade in the service of a competitor. Now that is all very well, but Mills did much more than this. His conduct and use was egregious and flagrantly disregarded his obligations. 1740 Third, Mills says that it is not necessarily a breach of duty for an employee, during the course of employment, to prepare to compete with his or her employer once the employment comes to an end. Rather, it is necessary to pay close attention to each step taken by the employee in preparing to compete to determine whether such a step involved any breach of duty. Accepting this sentiment, there is an air of unreality to Mills' assertion in this context given the overall conduct he engaged in. 1741 Fourth, Mills says that when he left Directed, he commenced employment with the Australian subsidiary of the Hanhwa group, which had been in a commercial supply relationship with Directed for many years and which would continue to be in a commercial supply relationship for the foreseeable future. In that context, information was routinely shared between such parties for the purpose of that supply relationship. Mills says that it could reasonably be expected that he might be called upon to make use of information and know-how obtained at Directed to further the supply relationship, albeit from the other side of that relationship. Where that occurred, there was no misuse of confidential information. 1742 Mills says that a considerable amount of the conduct said by Directed to amount to a misuse by Mills of Directed's confidential information in fact involved the use by Mills of relevant information for the purposes of the supply of products by Hanhwa to Directed. 1743 So for example, on 4 April 2017, some three weeks into his role at Hanhwa Aus, Mills sent an Excel spreadsheet by email to Oh entitled "Directed OE Forecast 03042017". Relevantly, Mills' spreadsheet included a tab, "Hanhwa forecasting", which was headed "Directed Electronics Forecast for Suppliers – Hanhwa and Leemen". 1744 On 11 April 2017, Oh sent an email to various Hanhwa Korea representatives, attaching the spreadsheet earlier sent to her by Mills on 4 April 2017. Oh's email included the following: …In relation to FORECAST on the Australian market for the April-August 2017 period, I am sending you a file containing up-to-date information. Currently, we are requesting Directed's logistics person to share with us inventory quantity of Multimedia radio units and Forecast information, but no exact data has been received yet. This is not the latest data, however our analysis based on information held by Craig Mills who used to work for Directed, suggests that we should start shipping DIR6110 from late July or early August to prevent Shortage issues… 1745 When asked about this email in cross-examination, Oh explained that she had been unable to obtain forecasting information from Directed and therefore asked Mills to assist, so as to help Directed avoid a shortage. Lee also gave evidence that the spreadsheet (or similar sheets) was used by Hanhwa to make orders for Directed, because Proghios (who assumed Mills' role at Directed ) failed to give Hanhwa forecasting orders for six months and therefore Hanhwa used the information to determine long term orders itself. When asked why another similar hardcopy version of the "Hanhwa forecasting" spreadsheet was in Hanhwa's possession, namely a version containing quantities of units sold between October 2016 and November 2016 and forecasted quantities for December 2016 to June 2017, Lee was firm that Mills and Hanhwa Aus, on behalf of the Hanhwa group, needed such information to generate long term forecasts for supply to Directed, because Directed had failed to provide that information. 1746 So, Mills says that this evidence illustrates that he was using relevant forecasting information maintained by him in his previous role at Directed for the legitimate purpose of assisting with the Hanhwa-Directed supply arrangement, in circumstances where Directed had failed to provide the necessary information itself. In so far as that information might have been confidential, it was not a misuse of such information to share it with Hanhwa in these circumstances, and nor was it necessary or even possible for Mills to engage in an artificial exercise of seeking to obtain from Directed the very information already in his possession, so as to assist both Hanhwa and Directed in meeting anticipated supply. I disagree with all of this. He should not have had it and not used it without Directed's permission. 1747 Now Mills has drawn my attention to other examples which were more in his favour, but they do not carry the day. I accept, as Mills has said, that there are some examples that show that the fact that Mills may have been in possession of Directed stock lists or forecasting information, being material obtained from his time at Directed, does not lead to an inference of any misuse of such information to the detriment of Directed. But they do not carry the day. He should not have had much of this information. Further, and strictly, it was used without permission. Moreover, for the moment, detriment to Directed is not the issue. 1748 Let me now turn to some specific matters. Privilege affidavits, red hard drive and USB conduct 1749 Directed tendered two affidavits of Mills, referred to in these proceedings and in my reasons as the so-called privilege affidavits embodying various claims invoking privilege against self-incrimination; such claims did not prevent their tender before me in the light of how the case was conducted; objection was only taken as to the delay in tender. It is appropriate that I set out some aspects which are damaging to Mills' defence to say the least concerning his behaviour and what he did and had possession of concerning Directed's confidential information. 1750 In Mills' affidavit of 14 November 2017 he deposed to the following: I refer to the ten categories of 'Listed Things' contained in Schedule A of the Search Order. This affidavit adopts the definition of 'Listed Things' contained in Schedule A, as varied by paragraph 1 of the orders made by his Honour on 27 October 2017, subject to the definition of 'Confidential Information' being that contained in the orders of the Honourable Justice Beach dated 10 November 2017. … (a) Listed Things are located on the following electronic devices: (i) Toshiba Satellite L750 (Serial Number 8B073168W); (ii) Intel NUC, Model NUC6i5SYH (seized from Unit 33, Brooklyn Business Park, 650 Geelong Road, Brooklyn); (iii) Red external hard drive (serial number NA7SS45G) (seized from Unit 33, Brooklyn Business Park, 650 Geelong Road, Brooklyn) (the Hard Drive); (iv) Samsung Tab, Model SM-P585Y (Serial Number: R52J30GGTLF); and (v) Samsung S7 mobile phone. (b) Listed Things are located in the following cloud storage: (i) DropBox (Hanhwa Australia) (ii) OneDrive - Hanhwa Australia (c) Apart from the two emails listed in paragraphs 14 and 15 of my disclosure affidavit, Listed Things are located in emails at the following email addresses: (i) checkun1@gmail.com (ii) checkun1@optusnet.com.au (This account was closed in or about May 2012) (iii) cm@leemen.net (iv) cm@directed.com.au (I do not have access to emails sent from or received by this address since January 2017) (v) millscj@hanhwa.com.au (d) Listed Things are located in the bundle of hard copy documents seized from the Hoppers Crossing Property on 27 October 2017. (e) In about February or March 2017, whilst I was employed by Directed Electronics OE Pty Ltd (Directed), before I gave Directed notice of my resignation in mid-February 2017, Johnny Meneses (Mr Meneses) asked me to copy electronic files from Directed's server onto a hard drive. (f) After the request identified in paragraph 7(e) above, I copied Listed Things onto the Hard Drive. (g) I refer to the report of Benjamin Wilson dated 3 November 2017, being exhibit "KC-3" to the affidavit of Kenneth Chai dated 8 November 2017 (the Wilson Report), which states that the Hard Drive was seized from the office of Hanhwa Aus Pty Ltd (Hanhwa Aus), located at Unit 33, 650 Geelong Road, Brooklyn, Victoria (Hanhwa Aus' Office) on 27 October 2017 in accordance with the Search Order. (h) I took the Hard Drive to Hanhwa Aus' Office in about April 2017, after I began working for Hanhwa Aus. The Hard Drive has been predominantly stored at Hanhwa Aus' Office since I began working for Hanhwa Aus. The Hard Drive has also been occasionally transported by me between Hanhwa Aus' Office and my property at [ … ]. (i) I uploaded Listed Things stored on the Hard Drive to the following cloud storage locations owned by Hanhwa Aus: (i) DropBox (Hanhwa Australia) - uploaded in about August 2017 (DropBox) (ii) OneDrive - Hanhwa Australia - uploaded in about March 2017 (OneDrive) (j) I believe that only I have access to my own cloud storage location on OneDrive. I do not know which, if any, specific employees (apart from me) have accessed the Listed Things stored on the DropBox. (k) In the course of my employment: (i) firstly, with Directed between 1 July 2009 and March 2017; and (ii) subsequently, with Hanhwa Aus, I have sent or received numerous emails and participated in meetings or conversations where Listed Things have been, or are likely to have been, supplied by email as follows: (iii) emails passing between my personal email address (checkun1@gmail.com) to jm@directed.com.au between 24 June 2009 and 23 December 2016; (iv) email from cm@leemen.net to hjoh@leemen.net on 21 June 2017 sent at 12:32pm; (v) email from jm@directed.com.au to cm@leemen.net dated 2 December 2016 sent at 3:00pm; (vi) emails passing between cm@directed.com.au and ryan@leemen.net between 4 February 2010 and 20 December 2016; (vii) emails from millscj@hanhwa.com.au to email addresses ending in "@isuzu.net.au" between 10 April 2017 and 26 October 2017; (viii) email from jm@hanhwa.com.au to cm@leemen.net dated 12 April 2017 sent at 3:04pm; (ix) emails passing between millscj@hanhwa.com.au and email addresses of other Hanhwa employees in the course of my employment with Hanhwa; (x) emails from cm@directed.com.au to sue@suemills.com.au between 21 December 2015 and 8 April 2016. (l) In the course of my employment: (i) firstly, with Directed between 1 July 2009 and March 2017; and (ii) subsequently, with Hanhwa Aus, I have participated in meetings or conversations where Listed Things have been, or may have been, supplied verbally: (iii) Meetings or conversations with Johnny Meneses; (iv) Meetings or conversations with Kichang (Ryan) Lee in the course of my employment with Hanhwa and in the course of my employment with Directed for the purpose of dealing with Hanhwa (and its associated entities) as a supplier to Directed. (m) In the course of my employment: (i) firstly, with Directed between 1 July 2009 and March 2017; and (ii) subsequently, with Hanhwa Aus, I have supplied, or offered to supply, a Listed Thing to the following persons: Name Address Mr Meneses [ … ], Aspendale Gardens, Victoria. I have sourced this address from Mr Menses' affidavit filed in this proceeding dated 9 November 2017. Mr Lee [ … ], Point Cook, Victoria. I have sourced this address from Mr Lee's affidavit filed in this proceeding dated 9 November 2017. Employees of Isuzu in the course of my employment with Hanhwa Aus unknown Employees of Hanhwa Aus in the course of my employment with Hanhwa Aus unknown (n) email from ryan@hanhwa.com.au to cm@leemen.net and jm@ hanhwa.com.au dated 8 February 2017. 1751 Further, in Mills' affidavit of 11 July 2018 he deposed to the following: … (a) Listed Things are located on the following electronic devices: (i) A USB storage device (the USB). (ii) Lenovo Thinkpad x230 (Ferrier Hodgson image no. M154-HC-PC01-Sue_Mills). (b) In or about April or May 2017, whilst I was employed by Hanhwa Aus Pty Ltd (Hanhwa Aus), Johnny Meneses (Mr Meneses) handed me the USB. Mr Meneses asked me to upload the contents of the USB to my Hanhwa Aus PC, being the Intel NUC identified in paragraph 7(a)(ii) of my first privilege affidavit (Work PC). I uploaded the contents of the USB (which totalled approximately 10Mb of data), which included Listed Things, to my Work PC and saved the files in a folder labelled 'Directed' on the desktop. After I uploaded the contents of the USB to my Work PC, I returned the USB to Mr Meneses. I am unaware of the current location of the USB. (c) Listed Things are located in a personal Google Drive cloud storage location linked to checkun1@gmail.com. This cloud storage is linked to a folder stored locally on the PC from which the cloud storage is accessed. For example, when I accessed my Google Drive on my Toshiba Satellite L750 (Serial Number 8B073168W) (Toshiba), any changes I made to the documents stored on Google Drive would have been reflected in the same set of documents stored in a local folder on my Toshiba. (d) I have already identified: (i) my Toshiba; and (ii) other devices on which I accessed my Google Drive as devices on which Listed Things are located in paragraph 7(a) of my first privilege affidavit. (e) I have identified the Lenovo Thinkpad x230 as a device on which Listed Things are located in paragraph 6(a)(ii) solely because I believe it has a local folder stored on it which is linked to the Google Drive cloud storage location. (f) I refer to paragraph 7(i)i. of my first privilege affidavit. I have also uploaded Listed Things stored on the Hard Drive to Microsoft Groups, a cloud based file sharing system within Outlook. The two specific 'Groups' that the Listed Things were uploaded to were labelled: (i) 'HANHWA AUS'; and (ii) 'HAU8000 Project'. (g) Access to the HANHWA AUS Group was restricted to me and to the following Hanhwa Aus and Hanhwa Hightech Co. Ltd employees: (i) Chloe Jeon; (ii) Chris Kim; (i) Erin Kim (no longer employed by Hanhwa Hightech Co. Ltd); (ii) Irene Oh; (iii) Mr Meneses; (iv) Ryan Lee; (v) Thomas Shin; and (vi) Tim Kim. (h) I do not know whether every above listed member of the 'HANHWA AUS' Group accessed files stored within the Group, however I am aware that Erin Kim, Chris Kim and I were the last three people to modify files within the Group. (i) Access to the 'HAU8000 Project' Group was restricted to me and to the following Hanhwa Aus and Hanhwa Hightech Co. Ltd employees: (i) Irene Oh; and (ii) Ryan Lee. (j) I do not know whether every above listed member of the HAU8000 Project' Group accessed files stored within the Group, however I am aware that Irene Oh and I were the last people to modify files within the Group. 1752 Now it must be accepted that such evidence is only admissible against Mills, and not against Meneses or the Hanhwa parties. Further, given that Mills did not give evidence on his own behalf, various adverse inferences can be drawn against him. 1753 Let me at this point say something about the evidence of Pieries which is unhelpful to Mills to say the least. 1754 Pieries deposed that Justin Geri, the independent computer expert, provided Pieries with a hard drive containing a copy of a red hard drive, a listing of file names and file paths on the red hard drive and copies of documents retrieved from an Intel NUC computer in a folder named "Directed". 1755 Pieries deposed that the folder entitled "Directed" from the Intel NUC computer contained Directed forecasting and stock information from Proghios, which had been modified by Mills in May 2017, as well as a folder entitled "QA" containing 10 items from May 2017 relating to Directed's policies and guidelines. 1756 But Mills said that other evidence shows that the forecasting and stock information described by Pieries was information of the kind used by Hanhwa employees including Mills for the purposes of the Hanhwa–Directed supply arrangement. So the fact that the information was in a folder entitled "Directed" is consistent with this. 1757 Now this is a slick submission but unconvincing in my view. Mills had no right to use any of this information. 1758 Further, in relation to the red hard drive, Pieries deposed that the red hard drive appeared to contain a back up of Mills' Directed Outlook email account for the period 1 June 2009 to 11 January 2017, created on 11 January 2017 and copied to the red hard drive on 3 February 2017. 1759 But Mills says that there is no evidence that the contents of the red hard drive, being the back up of Mills' Directed Outlook email account, appeared or were uploaded in wholesale form elsewhere than on the red hard drive, including in particular on any of Hanhwa's computer systems. 1760 But I must say that none of this is a complete answer to Directed's case. In my view Mills inappropriately engaged in a wholesale recording or backing up of Directed information. And he seems to have later used this information when working for Hanhwa Aus. That possession and misuse has been made out by Directed as detailed in annexures E and F to my reasons. Seagate 2TB drive, K drive 1761 Let me deal with another topic. Mills says that there is no evidence linking him to the Seagate 2TB drive located at Meneses' house and that I should reject the allegation that he may have been involved in the copying of information to that hard drive, including in respect of the K drive. I agree with Mills on at least this aspect, save concerning the use of Directed's PPAPs and line drawings of parts. General 1762 Let me deal with various other points. Mills says that in so far as it might be said that he was using information concerning Directed for the purposes of the Hanhwa parties, then the allegations concerning misuse of such information suffer at least two difficulties. 1763 First, Mills says that the relevant information was either not confidential or otherwise not capable of protection under the law of confidence. 1764 Second, Mills says that any use of such information was not causative, in any material sense, of any of the loss the subject of complaint by Directed in this proceeding. Of course, this second point touches on matters that I do not need to finally decide at this stage. 1765 Let me deal with the first point. Mills made submissions by reference to various examples. 1766 Directed made complaint about an email chain involving Mills and Lee on 11 July 2017, in which Mills made reference to Directed's price of a reverse camera kit. The earlier emails in the chain reveal that Lee, in response to a request from Shanks of IAL, had that day asked Mills to send him the price of new accessories for the new unit (i.e. the HAU8000). In so doing, Lee instructed Mills, "[w]e need 10% or 15% more for the margin". Accordingly, Mills sent Lee a series of IAL cost breakdown quotation spreadsheets noting, "[m]ark ups increased as requested (no changes to HAU8000 and standard fit Nav)". But the prices of the HAU8000 head unit and navigation were not altered in the attached spreadsheets. Further, according to Mills, the pricing of accessories for the HAU8000 in the attached spreadsheets was already set by Lee's pre-determined margin of 10 to 15 per cent referred to in his earlier email. Mills says that this is consistent with evidence given by Lee to the effect that he instructed Mills to apply a margin of 10 or 15 per cent or sometimes 20 or 30 per cent to the Hanhwa Aus cost price from Hanhwa Korea, and that Mills made a pricing calculation on that basis. 1767 Further, in Mills' email of 11 July 2017, he went on to state that the cameras were basically the same price as Directed's price at AUD 160 plus GST. Mills added, "[w]here our advantage lies is with complete single camera digital reverse kit sell price compared to Directed's". Mills then went on to note that Directed were selling an 8 metre camera kit to IAL at AUD 250 with a total landed cost of AUD 171.07, resulting in a 46% mark-up (i.e. total sale price divided by input cost) or 31.5% gross profit (i.e. sale price less 10% GST divided by input cost). Mills then recorded that Hanhwa could sell a similar kit, being an eight metre digital camera kit, with a lower total landed cost (AUD 140.07) and therefore lower sale price to IAL (AUD 198.90) at broadly similar margins (42% mark, 30% gross profit). 1768 Clearly, in my view Mills provided Lee by email Directed's cost prices for 50 or so products with his recommended mark-ups to Directed's pricing to give Hanhwa Aus a competitive advantage over Directed. The misuse is apparent on the face of the email. It stated in part, "Where our advantage lies with complete digital reverse kit sell price compared to Directed's. They are selling as per below". Lee accepted that this was Directed's prices for products to IAL. He acknowledged that Mills and Oh were using Directed's pricing and profit information. 1769 On 13 July 2017, Lee responded to Shanks' request for accessory pricing the subject of the Hanhwa internal emails above. Relevantly, Lee attached cost breakdown quotations for five accessories for the new unit, including a digital camera, but not including any reverse camera kit. Consistently with Lee's earlier request of Mills, each of the attachments revealed a profit margin applied to the cost of the goods of between 10 to 15 per cent. Moreover, in the case of the camera, the cost proposed to IAL was AUD 174.49, being a figure in excess of the Directed price to IAL of AUD 160.00 for its camera that Mills had noted in his email to Lee. 1770 Mills says that this exchange illustrates that the observations as to Directed's pricing that Mills had volunteered in his earlier email to Lee were of no moment to Lee's determination of the pricing of accessories for the HAU8000. Those prices were set in accordance with Lee's pre-determined margins. 1771 Further, Mills' observations about the potential to supply a digital reverse camera kit for the HAU8000 at a cheaper price than Directed's reverse camera kit went nowhere. Lee gave evidence that this was not a package that they offered to IAL and there is no mention of any such package in the parts list subsequently provided to IAL on 29 August 2017. 1772 But in my view, what this all shows is misconduct and misuse on the part of Mills. I will return to this later. 1773 Further, Mills asserts that any such Directed pricing information was not properly confidential to Directed. The landed cost of Hanhwa accessories provided to Directed was known to Hanhwa. On the other side of the supply equation, the evidence showed that Directed shared with IAL the price it proposed to charge for units and accessories, together with its input costs and profit margin. Such information was shared on IAL branded forms, as part of IAL's requirements. There was no evidence that IAL received such information in circumstances importing an obligation of confidence in favour of Directed. In the circumstances, it could not be said that any such pricing information of Directed had the necessary character of confidentiality. For the same reason, Mills' email of 12 July 2017 to himself attaching a copy of Directed's November 2016 IAL cost breakdown quotation sheets for the proposed DIR8000 did not constitute the use of any confidential information. In my view, these submissions have an air of unreality to them. 1774 Let me turn to another example given by Mills. In relation to the prospective supply by Hanhwa of accessories to ICL in Japan, complaint is made by Directed of two emails involving Mills which included reference to Directed's prices. 1775 Now representatives of Hanhwa Korea had met with representatives of ICL in Tokyo on 11 July 2017. Prior to the meeting, ICL had flagged that Hanhwa's DRLs were being reviewed by ICL for the Japanese domestic market, and ICL was seeking a quote for the DRL package and the provision of a sample. 1776 The first email concerning Mills was an email of Oh to Lee, copied to Mills, of 11 July 2017, which made reference to Directed's price to IAL for DRLs and associated harnesses. By reply email to Lee, copied to Oh, Mills observed that there would be profit problems involved with meeting the pricing set out in Oh's email, because of the cost of the harnesses. Mills also observed that base model N series trucks without current fog lights fitted would need a relay and Isuzu fog switch, and may need other parts. 1777 Later that day, Mills sent an email to Lee, copied to Oh, noting that he had found an email and forwarding it, being an email of 23 September 2016 from Mills to Meneses at Directed with the subject "Isuzu DRL project". The earlier email listed the cost price and sell price of IAL DRLs and associated harnesses, the gross profit on those items, and the quantities in stock. It also included an observation that additional parts would be required for N series trucks without standard fog lights. Attached to the email were line drawings for the DRL kits and harnesses, as well as an IAL advertisement for DRL kits which included retail pricing. 1778 So, on 11 July 2017 Mills sent to Lee Directed's product sheet and pricing for its DRLs. Lee accepted that Mills and Oh then used this pricing and profit information. 1779 On 17 July 2017, Lee sent an email to Meneses stating that he needed the price for DRL relay and fog switch. Lee went on to note that they needed to submit the quotation to ICL within the week. He stated what he thought the DRL price would be and what the harness price would be, and asked what Meneses thought. Meneses replied later that day stating that he would send cost and part numbers that week. 1780 On 19 July 2017, Hanhwa Aus prepared a cost breakdown quotation for ICL for DRLs for N and F series trucks. The material cost for the DRLs and harness was listed. Incorporating other costs and a 9.5% profit mark up, the total cost proposed to ICL was set out. 1781 Lee sent the quote to ICL on 19 July 2017, noting that it did not include the fog switch and relay that would be advised further. Lee also noted that the DRL harness cost on the sheet was different to the DRL harness that Hanhwa Korea had sent to ICL by way of sample that day, because the sample harness was designed for the Australian market and therefore would need to be corrected for ICL's purposes. The representative of ICL replied the next day stating that he understood and that ICL would need another quotation for its required specification. 1782 By reference to the context, Mills made a number of submissions about his two related emails of 11 July 2017. 1783 First, he says that the information that Mills volunteered about pricing and profitability of DRL kits was of no interest to Lee. The proposed pricing in Lee's email to Meneses of 17 July 2017, and the pricing and profit mark-up outlined in the quotation that Lee provided to ICL on 19 July 2017, bear no resemblance to any information that Mills had volunteered in his earlier emails. The only information that Mills volunteered that was of any moment to Lee in his dealings with ICL was the fact that base model N series trucks without fitted fog lights would need a relay and Isuzu fog switch. That was a matter of Mills' general know how and experience about which no complaint can be made. But however valuable to Lee or not, Mills should not have used or disclosed any of this. 1784 Second, and more generally, Mills says that the information provided by him went nowhere because Hanhwa never supplied any products to ICL. But in my view this is no answer. 1785 Third, Mills says that even if any use of the information had been made of material relevance to these proceedings, then in relation to Mills' email in mid-July 2017 concerning the reverse camera kit, any such Directed pricing information was not properly confidential to Directed. I disagree. 1786 Further, in July 2017, in response to costing information provided to him, Mills provided Oh and Lee with the prices Directed charged for its cables for the steering wheel control. I agree with Directed that the specificity with which Mills reported the information supports the inference that he had Directed's pricing in front of him. 1787 Let me turn to another example focused on by the parties. 1788 Directed has made reference to an email exchange between Lee and Mills of 30 August 2017, in which Lee asked Mills for sales figures for a "low mount kit at Directed". Mills replied shortly thereafter outlining the number of high mount and low mounts kits ever sold until February 2017 (which was 426 in total). When asked about this exchange, Lee stated that he was seeking such figures for forecasting purposes, and that Directed had always provided sales figures to Hanhwa for that purpose. Mills says that in these circumstances, there was no misuse of information, certainly not confidential information, or at least information of a kind that would attract protection under the law of confidence, as it would require Hanhwa Aus representatives to engage in an artificial exercise of ignoring that which was necessarily known to them by reason of the Hanhwa–Directed supply relationship. But again, these submissions do not negate Mills' misuse. 1789 Directed has made reference to an email exchange between Lee and Mills of 5 October 2017 which included reference to a "Directed price". In the first email, from Lee to Mills and with the subject "CAM", Lee stated, "still waiting the price mate. Only need CAM extension cable with Directed price." Mills replied shortly thereafter, attaching a spreadsheet and stating, "let me know if this is suitable". The attached spreadsheet listed eight products, being a digital main camera with IR and microphone, five camera extension harnesses, an analogue second camera and a reverse trigger harness. Adjacent to each product was a column "Hanhwa price to Isuzu plus GST" and a column "Comparable price + gst", with pricing in each, save for the digital main camera and the reverse trigger harness where the "comparable" price fields were marked as not applicable. It is not in doubt that Lee received the email and file. 1790 But by the time this email exchange took place on 5 October 2017, Mills says that Hanhwa Aus had already provided its proposed pricing of the HAU8000 and accessories, including these products, to IAL on 29 August 2017. 1791 Accordingly, so Mills says, assuming the reference to comparable prices was a reference to Directed's prices to IAL, this email reveals that, consistently with Lee's evidence, regard was not had to any pricing information of Directed when Hanhwa Aus pitched its pricing of accessories to IAL. By the time of this email, the pricing information was of no use to Hanhwa Aus in any relevant sense. Consistently, Lee gave evidence that he did not forward the information in Mills' email to IAL. And again, Mills says that Directed's prices to IAL (assuming they were shared) were not properly confidential to Directed. 1792 Again I reject Mills' assertions that this does not show misuse by him. 1793 Generally, Mills says that much of the information used by him at Hanhwa Aus following his departure from Directed was used for legitimate purposes connected with the Hanhwa-Directed supply relationship. And on the handful of occasions on which Mills had recourse to Directed information for purposes unconnected with that supply relationship, Mills says that such information was not properly confidential to Directed. But I do not accept any of these "confess and avoid" type assertions. 1794 Consequently, I reject Mills' assertion that there was no breach of any duty of confidence (whether contractual or equitable), and by necessary extension, any duty under ss 182 and 183 of the Corporations Act or any other contractual or fiduciary duty applying during or after the course of his employment concerning his possession and use of Directed's confidential information. Let me elaborate further. 1795 Mills says that it was not a breach of his employment agreement or his duty of confidence to have been in possession of confidential information of Directed at the time of execution of the search orders because he regularly sent work-related documents to his personal email address and he regularly took work-related information home with him from time to time in connection with his employment. Further, Mills says that the mere fact of his possession 8 months after he ceased employment by Directed does not give rise to an inference of misuse. But of course there is more than just this. 1796 The documents and information taken by Mills as identified by Directed were used by Mills for unauthorised purposes to benefit Hanhwa Aus. The evidence shows that he had possession of and used a vast array of Directed's documents for the business of Hanhwa Aus. This is evidenced by the unauthorised downloads he made and received and uploaded to Hanhwa Aus' computers. 1797 Further, and not unimportantly, Mills has not filed any evidence and was not willing to be cross-examined as to the allegations that he obtained, retained and used the documents that comprised confidential information of Directed for the benefit of Hanhwa Aus. 1798 Now Mills asserts that in some instances the Directed documents containing its confidential information was used for the benefit of Directed. The examples identified by Mills were used by him to assert that they were used by Hanhwa Aus to assist Hanhwa Korea to plan for future ordering of products by Directed. But he did not file evidence or make himself available for cross-examination to establish such a case. 1799 Further, although Mills has presented some examples in an apparent attempt to support some of his points, he has not satisfactorily addressed the other voluminous documents he copied without authorisation from Directed's servers shortly before he left Directed, and which he then took with him to Hanhwa Aus. 1800 Now Hanhwa Aus was a company not known to Directed, and with which it had no relationship. Hanhwa Korea was its supplier. As far as Directed knew, it was not in competition with Hanhwa Korea in relation to the supply of any products, let alone in competition for the supply of products to OEMs in Australia and New Zealand. But unbeknown to Directed, Hanhwa Aus was in business in competition with Directed for the supply of products to OEMs in Australia and New Zealand. Clearly, Directed did not want its competitor to have access to its documents revealing pricing and gross profit information for all of its products sold to OEMs in Australia and New Zealand, including for products not supplied by Hanhwa Aus. 1801 Moreover, Directed did not want Hanhwa Korea to have such documents or information appropriated by Mills. Directed had not disclosed such documents or information to Hanhwa Korea. And there was no need for Hanhwa Korea to have this information to plan its future ordering of products from Hanhwa Korea. They had managed supply adequately for the previous 8 years by Directed providing forecasts. 1802 I agree with Directed that it is clear that the documents appropriated and misused by Mills, which contained Directed's pricing, gross profit, stock holding and other sensitive information, were circulated, reviewed and worked on within Hanhwa Aus. These documents and information were being used to assist and plan Hanhwa Aus' attempts to win away from Directed the supply of products to OEMs in Australia and New Zealand and to determine its pricing. Hanhwa Aus used such documents and information for that purpose. 1803 Further, this was not just a case of a former employee leaving one workplace and commencing in the workplace of a stranger. This is a case of a former employee leaving to commence in the workplace of a direct competitor to his prior employer. 1804 Moreover, Hanhwa Aus was established in secret with the assistance of Mills, who, upon resignation, falsely told Directed that he was going to work in his wife's PR and marketing business. 1805 Let me deal with some other matters. 1806 First, Mills says that Directed's cost breakdown sheets for the DIR8000 and its accessories were not confidential information of Directed because they were shared with IAL. This is misconceived. Directed's cost breakdown sheets for the DIR8000 and its accessories were obtained or imparted to Mills in circumstances importing an obligation of confidence. They were received by Mills in his capacity as Directed's employee. They were prepared for submission by Directed to IAL. Meneses did submit them to IAL on or about 8 December 2016. Mills subsequently sent them to his private email address. 1807 Now having regard to the timing of this conduct, that is, where Hanhwa Aus was engaged in an attempt to exploit the DIR8000 for itself, I agree with Directed that the inference is that Mills sent them to his own email address so as to have access to them to use in Hanhwa Aus' business to supply the same products to IAL. And they were used by Mills and Hanhwa Aus to create the corresponding Hanhwa Aus versions of the cost breakdown sheets for the HAU8000 and its accessories. 1808 In my view, Directed's cost breakdown sheets for the DIR8000 and its accessories had the necessary quality of confidence. The nature of the information in them and the circumstances under which they were provided by Directed to IAL make that out. Further, there is no evidence that IAL ever disclosed them to any third party or made them publicly available before they were taken and used by Mills and Hanhwa Aus to create the corresponding Hanhwa Aus versions for the HAU8000 and its accessories. 1809 Now Mills asserts that Lee did not use Directed's pricing information which Mills provided to him. But to the extent that this submission relies on Lee's evidence, I agree with Directed that such evidence was not reliable. 1810 Mills says that even if he used Directed's pricing information for the DIR8000 and its accessories, the pricing of the accessories for the HAU8000 was not a material factor in IAL's decision making. But the email from Meneses to which Mills refers to support that assertion does not make out that proposition and it is also contradicted by the email sent by Humphries to Meneses on 15 November 2016. Humphries told Meneses that the mid-2017 start date for the SuperDAVE was in jeopardy due to the lack of relevant information. Directed then provided the costings requested on 8 December 2016 and then they were copied by Mills and those same costings were submitted by Hanhwa Aus in June 2017. 1811 Further, on 29 June 2017, the day before their presentation to IAL, Mills emailed Lee and Meneses about Hanhwa's proposed pricing to IAL for the HAU8000 and its accessories. Mills asked Lee and Meneses to review the sell prices he had prepared "so that we are all on the same page tomorrow". Plainly, Mills, was involved in pricing. Lee accepted that this was about Hanhwa's business, not Directed's business. 1812 Second, I should deal with another point made by Mills concerning Lee just applying a margin. Even if Lee simply fixed Hanhwa Aus prices with a margin added, he did so in the knowledge of how that price sat in competition with Directed's price. 1813 I largely accept Directed's case concerning the misuse of its confidential information by Mills. I have set out more detail as to my findings in annexures E and F to these reasons. Copyright 1814 Let me at this point say something briefly about infringement of copyright insofar as it concerns the case against Mills. The principal infringement of copyright allegations concerning Mills relates to alleged infringement concerning the PPAP documents including its constituent parts and line drawings of parts. 1815 Mills says that those claims fail for the following reasons. 1816 First, he says that the aspects of the PPAPs that Directed claimed to have created including the overall structure or template, were material reproductions of documents created by Mills and his colleagues during their employment with TechAudio. He says that by materially reproducing those documents, Directed did not create any original artistic or literary work capable of attracting copyright. Any copyright in those documents, if it subsisted at all, vested in TechAudio. Further, there was no evidence that TechAudio assigned such copyright to Directed at any stage. I will address such points later when dealing with the claims against other parties. 1817 Second, so far as other aspects of the PPAP are concerned, he says that those documents were created by Hanhwa Korea, most notably, the design records and graphical user interface, in circumstances where there is no evidence of any assignment of copyright to Directed and the documents otherwise record technical and engineering data which is necessarily different across the different units, as a comparison between the DIR6200 PPAP and the draft HAU8000 PPAP reveals. So even if copyright subsisted in such records of information and inured to the benefit of Directed as distinct from Hanhwa, there was no relevant infringement of copyright. Again, I will address that point later. 1818 Third, he says that any broad similarity in the overall structure and form of the documents is merely reflective of the fact that PPAP documents are standardised, generic documents utilised in the automotive supply chain industry. I will address that point later. 1819 I should say at this point that none of Mills' assertions are a sufficient answer to Directed's claims. 1820 Fourth, he says that the PPAP infringement of copyright claims face the difficulty that the intellectual property rights in IAL branded documents inured to the benefit of IAL, not Directed. Mills asserts that IAL branded documents in the PPAP inure to the benefit of IAL pursuant to the terms of Directed's supply agreement with IAL. But in my view the provisions referred to do not have the effect asserted by Mills. 1821 Fifth, as to the line drawings, and assuming copyright subsisted in such drawings in favour of Directed, Mills says that it is not clear how there could be said to have been any relevant act of infringement by any representative of Hanhwa Aus, including Mills. Each of the line drawings relate to a product supplied by Hanhwa to Directed for on-supply to OEM customers. Each bears the Directed logo and the name of a Directed employee. Whoever created or modified these documents on the dates which they bear apparently did so for purposes connected with Directed. In so far as representatives of Hanhwa Aus may have been in possession of such documents, Mills says that the most likely inference is that this was as a result of the ongoing Hanhwa-Directed supply relationship. 1822 Further, he says that in respect of the allegations of copyright infringement with respect to Directed's line drawings, there is no sufficient basis for Directed's inferences that may be drawn from his mere possession of these Directed branded documents. He says that there is no evidence of any substantial reproduction of these documents by Mills or any Hanhwa representatives. 1823 But in my view, the evidence establishes that Directed's line drawings were reproduced by the Hanhwa parties, apparently by Mills, in the period July 2017 to September 2017. Those drawings created by Directed in or before May 2017 were stored in the K drive, which was downloaded by Summers at the direction of Meneses in around May 2017, and apparently subsequently loaded on to the Hanhwa Aus computer systems by Mills. In the period July to September 2017 Mills made modifications to these Directed drawings for the benefit of Hanhwa Aus. There was nothing being done at the time that required any modification of these drawings on behalf of Directed. 1824 Further, the creation date of the Hanhwa reproductions of these drawings, which were in the period July to September 2017 apparently by Mills, indicates it is likely they were used or proposed to be used in relation to the Hanhwa parties' offerings of AV units and accessories and telematics units to IAL, Mercedes, Fuso and Hino, including for marketing purposes with OEMs and for inclusion in Hanhwa Aus PPAP documents to be provided to OEMs. 1825 In my view, Mills' defence to Directed's copyright infringement case has no substance concerning the PPAP material or line drawings. Alleged diversion of opportunities 1826 Let me now deal with the allegations against Mills for alleged diversion of business opportunities. In my view this is only made out concerning the SuperDAVE and the D-MAX aspects. Now at Hanhwa Aus, Mills may have worked with other supply proposals, but such conduct, although it may have been a breach of his post-employment restraint or involved the misuse of confidential information, may not have been diversion conduct as such. The diversion conduct case of Directed against Mills more relates to the period when he was employed by Directed, and not later behaviour when an employee of Hanhwa Aus. 1827 First, let me address the SuperDAVE conduct. In my view Mills is an accessory in part for the alleged SuperDAVE conduct. I have addressed the relevant evidence and my factual findings elsewhere. Now by way of defence, Mills made a number of points. 1828 He says that he did not breach any relevant duty, at least in any material, causative sense relevant to these proceedings. The decision of Hanhwa to pursue the sale of the HAU8000 in Australia was not one that he had any material participation in, involving as it did factors beyond his control, such as the management of the Hanhwa–Directed relationship at the executive level, and having on any view crystallised well before any conduct of Mills sought to be impugned in respect of these allegations. But most of these statements are inaccurate. I have set out Mills' conduct and its timing elsewhere. 1829 Moreover, Mills says that on no view could it be said that any participation by Mills, who was not replaced when he left Directed, materially contributed to the decision of IAL to enter into a long-term supply agreement with Hanhwa Aus as distinct from Directed. That is no answer. His conduct prior to leaving Directed partly facilitated this. 1830 But I do agree with Mills that there is no basis to conclude that he knowingly procured a breach by Hanhwa of the then unknown, impliedly novated Hanhwa Enterprise Agreement, or the unwritten but to be implied Hanhwa Korea Agreement. 1831 Second, let me address the RA7000 conduct. Mills says that there was no evidence to suggest that he was relevantly involved in the alleged RA7000 conduct in any way. Further, each of Lee, Allen Hartley and Dylan Hartley gave evidence that Mills was not involved in that project. There is no basis to suggest that he is liable for the alleged conduct. I agree. 1832 Now from approximately July 2016, Sue Mills assisted Lee and Hanhwa Aus with marketing services in anticipation of Hanhwa Aus' registration and commencement of operations. The evidence suggests she commenced her engagement from at least early December 2015. The work included all things necessary to commence a start-up: a corporate logo, business cards, social media pages, promotional videos, marketing materials, and corporate uniforms. 1833 From 2 August 2016, Mills had a "Leemen" email address. Mills (from his personal email address) informed Meneses (to his Leemen email address): "Johnny, This is dangerous setting up this email on my directed phone. I need a personal phone or a leemen phone. Best regards Craig Mills". 1834 Further, Mills was involved in the establishment of Hanhwa Aus' business at the Brooklyn premises whilst still employed at Directed. Further, Mills has worked for Hanhwa Aus at the Brooklyn premises since 14 March 2017. 1835 But none of this makes out Directed's case concerning the RA7000 diversion conduct. 1836 Now Mills was involved in ordering, purchasing and receiving delivery of the RA7000, its samples and component parts on behalf of Hanhwa Aus during the period of his restraint. But such conduct of Mills was after he left Directed and I am not prepared to find that he engaged or participated in the diversion as such from Directed of any relevant opportunity. His conduct after he left Directed is to be assessed more in terms of other causes of action, such as a breach of his restraint. 1837 Third, let me address the D-MAX conduct. Mills says that he had no relevant involvement in it. More generally, he says that there is no credible evidence to suggest that this was a maturing business opportunity that Directed were actively pursuing at any relevant stage. Further, he says that Lee gave evidence that Hanhwa Aus had not supplied AV units in respect of the Isuzu D-MAX. 1838 But in my view there is sufficient evidence to show that he participated in the relevant diversion conduct. 1839 On 23 August 2016, whilst he and Meneses were both employed by Directed, Meneses (from his Leemen email address) forwarded to Mills (at his Leemen email address) a draft powerpoint presentation for a unit proposed to be supplied to Isuzu Utes in Australia that Meneses had received that day from Lee. Meneses asked Mills to call him. They had a 5 minute conversation approximately 1.5 hours later. 1840 On 25 August 2016, Mills forwarded the presentation to his personal email address. 1841 On 14 November 2016, Meneses sent an email to Mills under the subject line "Isuzu UTE Presen" saying "I need this preso ASAP". 1842 On 15 January 2017, Mills' wife, Sue Mills, sent to Meneses, copied to Mills, at their Leemen email addresses, "the updated Isuzu preso". It is clear that Mills worked on the presentation and he sought and obtained marketing assistance of his wife. 1843 Further, when a sample D-MAX unit (HAU8100) was to be sent to Australia from Hanhwa Korea in October 2016, it was to be sent to Mills at Directed. Meneses requested that Mills "hold on to the DMax unit" and to "Give it to MS", being Summers. 1844 In my view, Mills participated in the diversion conduct and breached his employment agreement and his fiduciary duties owed to Directed. 1845 Further, the fact that Hanhwa has not supplied AV units to Isuzu Utes is irrelevant. It was a commercial opportunity identified by Directed and the opportunity was lost through Meneses', the Hanhwa parties' and Mills' misconduct. 1846 Fourth, let me address the HAU6160 and Hino conduct. Mills says that he had no relevant involvement in the alleged conduct, including in particular at any stage prior to the termination of his employment with Directed. 1847 The Hino conduct is alleged to have commenced in about April 2017, approximately one month after Mills had commenced employment with Hanhwa Aus. Further and in any event, both Hanhwa Aus and Directed tendered for the supply of AV units to Hino, and Directed was successful. 1848 Now I am prepared to accept that during the period of 6 months following 8 March 2017 and in breach of his restraint, Mills was aware of, and was actively involved in, conduct to assist Hanhwa Aus to supply or offer to supply the HAU8000, its accessories and the Polstar navigation software to IAL, a new AV unit to replace Directed's DIR6160 unit and accessories to Mercedes and a new AV unit to replace Directed's DIR6110 unit and accessories to Hino. 1849 And more specifically in relation to the Hino conduct, Mills received emails in relation to the development of the HAU8200. This was an AV unit offered by Hanhwa Aus to Hino to meet an opportunity that was originally identified by Directed. 1850 But all of this is relevant to showing that he breached his employment restraint, but it does not show any intimate involvement in any diversion conduct as such, save as I have said for the SuperDAVE and D-MAX opportunities. 1851 Let me move to another dimension of Directed's case against Mills. Dual employment 1852 The claims against Mills for breach of duty arising out of alleged dual employment primarily concern the period between August 2016 and the termination of his employment on 8 March 2017. Let me first deal with Mills' responses and how he characterised the matter. 1853 The first complaint in this regard is that on 2 August 2016 Lee attempted to set up a Leemen email address for Mills, which Mills thought would be dangerous to set up on his Directed phone. Two days later, Mills sent Lee a text on a personal mobile phone number advising that he was having difficulty setting up the Leemen email address, and Lee asked for Mills' personal email address to explain how to set it up. Lee sent Mills an email the next day and Mills replied that evening stating that the Leemen email did not work, which prompted Lee to ask Oh to fix the issue. 1854 The next complaint is that on 15 December 2016, Mills sent an email to his personal email address attaching Directed's recruitment request form, recruitment process map and a letter of offer of employment. Mills sent himself a similar email on 7 February 2017, attaching two job descriptions, an employment contract and a schedule of duties. 1855 Finally, complaint is made that Mills purchased Microsoft products for Hanhwa Aus in the period December 2016 to February 2017, for which he later sought reimbursement from Hanhwa Aus upon the commencement of his employment with Hanhwa Aus on 14 March 2017. But Mills said that there is no suggestion that he was ever employed by Hanhwa Aus or any other Hanhwa entity, or that he derived any remuneration from any such entity, at any time prior to the commencement of his employment on 14 March 2017. He was not engaged in any alternative employment with any third party, let alone a competitor. Further, he says that there was no evidence to suggest that any of the alleged dual employment conduct undertaken during the course of his employment hindered or otherwise interfered with the performance of his duties as a Directed employee, or otherwise adversely affected Directed during the course of that employment. Mills said that likewise there is no tenable basis to suggest that he was a knowing participant in any alleged dual employment conduct of Meneses. 1856 Now Directed submits that the origins of Hanhwa Aus' plan to set up in Australia can be traced back to the date of an email sent by Mills in the afternoon of Friday, 4 December 2015, from his personal email address, to his wife, Sue Mills, with the subject line "Email to deal with Johnny". In that email, Mills requested that Ms Mills only use the email address jm@oesolutions.net.au to reply to Meneses, so as to keep discussions off Directed's servers. He also suggested that, because Meneses was not good at typing, it was best cornering him on his mobile or keeping discussions vague if using email. But Mills says that when the email is assessed in its proper context, it had nothing to do with any relevant plan for Hanhwa to establish operations in Australia in rivalry with Directed. That context is as follows. 1857 On 2 December 2015, Meneses sent an email to Mills attaching images of a Leemen logo. 1858 Subsequently, on 3 December 2015 and again on the morning of 4 December 2015, Mills sent two emails to Meneses attaching images of a Leemen DAB (Digital Audio Broadcasting) mock up website in development. 1859 The website images included the Leemen logo previously sent by Meneses to Mills on 2 December 2015, and depicted a mock-up, online shop for the sale of a Leemen DAB+ portable radio receiver. The product was described as follows: Now any vehicle can have the improved features, more stations and better quality of Digital Audio Broadcasting without listening to the ads of commercial radio, or static where no stations are being broadcast when on the road. 1860 Product descriptions on the mock up website also included that the receiver could be "charged through USB port" and was "easily installed: just fix it to the windscreen". The associated images are consistent with those descriptions, being images of a small, portable Leemen branded radio that could be temporarily affixed to a vehicle windscreen. 1861 Mills says that it is clear from these images that the product in question was not an original equipment product of the kind that either Directed (or Hanhwa) were in the business of supplying to OEMs. 1862 Mills said that viewed in its proper context, a number of points can be made about Mills' subsequent email to Ms Mills in the afternoon of 4 December 2015. 1863 First, it may be inferred from the timing and sequence of the above emails that Ms Mills, through her business Sassy Marketing, had been commissioned by Meneses to produce a Leemen branded website for prospective retail sales of a Leemen portable radio receiver. Accordingly, Mills' email to Ms Mills took place in that context, and not in the context of any plan by Hanhwa to set up a distribution outlet in Australia in competition with Directed. 1864 Second, there is no complaint that Directed was deprived of the opportunity to sell Leemen branded portable radios direct to the public online, which was no part of its business. So, Mills says that he was not by this conduct engaging in any act of subterfuge or secrecy relevant to these proceedings. 1865 But in my view there is an air of unreality to Mills' submissions. 1866 In my view Mills breached his statutory, contractual and fiduciary obligations owed to Directed and was a knowing assister or involved in Meneses' breaches. 1867 Mills was Meneses' right-hand person with knowledge of his affairs. This is clearly evidenced by his participation in the OE Solutions conduct. Mills was a participant in the wrongdoing. And Mills' role was important. 1868 Mills' knowledge of his own wrongdoing goes back as far as 4 December 2015, when he encouraged his wife to be "vague" when talking to Meneses on emails, and for her to send emails to Meneses' personal email address to "keep discussions off Directed's servers". 1869 From late 2015, Mills engaged in a range of tasks to assist in the establishment of Hanwa Aus' business and to divert Directed's business to it. This conduct was a breach of his contractual obligations, fiduciary obligations and statutory obligations. 1870 From approximately July 2016, Sue Mills assisted Lee and Hanhwa Aus with marketing services in anticipation of Hanhwa Aus' registration and commencement of operations. She commenced her engagement from at least early December 2015. I have already set out details of her work. Mills and Meneses sent and received emails for the same purpose, which included the period when they were employees of Directed. 1871 Further, from 2 August 2016, Mills had a "Leemen" email address. As I have already set out, Mills from his personal email address informed Meneses (to his Leemen email address): "Johnny, This is dangerous setting up this email on my directed phone. I need a personal phone or a leemen phone. Best regards Craig Mills". Meneses and Mills were intimately involved in the establishment of Hanhwa Aus' business at the Brooklyn premises whilst still employed at Directed. 1872 Further, from mid-2016 Lee communicated with Mills and Meneses at their Hanhwa/Leemen email addresses, and their Directed email addresses. And Meneses and Mills worked on tracking the cost and expenditure in relation to the setup of Hanhwa Aus. 1873 Further, in early 2017 and prior to his departure from Directed to join Hanhwa Aus, Mills in conjunction with Meneses facilitated the wholesale misappropriation of Directed's confidential documents and information. 1874 Now Mills asserts that it is not necessarily a breach of his contractual or fiduciary obligations for an employee to prepare to set up a new business. That is true. But this does not take into account the quality of Mills' conduct, the secrecy, Mills' awareness of the impropriety in warning Meneses, and of the improper taking of confidential information just prior to leaving. Further, if Mills found himself in a conflict of interest he was bound to report it. He did not do so. 1875 Now as to the question of secrecy more generally, Mills says that he and others wanted to keep the fact that Hanhwa planned to set up operations in Australia secret from Directed. But he says that in the context of an employee preparing to compete, which is not without more a breach of duty, that is unsurprising. He says that it is readily conceivable why a prospective competitor would not want to tip off the incumbent. But this submission seems to me to smack of a plea in mitigation of sentence and is not a defence. 1876 There is an air of unreality to Mills' assertions. There is a difference between preparing to compete and doing things to further the business of a competing business whilst still an employee. In the present case, the fact that Hanhwa Aus was being set up in Australia to compete with Directed was not a matter that had been disclosed to Siolis or Tselepis. At the very least, Mills' duty of fidelity obliged him to inform his employer of this activity. 1877 In my view Directed has made good its claims against Mills concerning the dual employment conduct. Let me now turn to the restraint of trade question. Restraint of trade 1878 Mills says that the claims against him for breach of his restraint of trade clause in respect of the alleged post employment conduct must fail. 1879 He says that the restraints are prima facie void, and Directed led no evidence to demonstrate that they were reasonable, in the sense of affording no more protection than was reasonably necessary to protect Directed's legitimate business interests. He therefore says that there is no basis to conclude that either the territorial or temporal restraints sought to be imposed by Directed on his liberty of action were reasonably necessary for Directed's business. 1880 Now Siolis gave evidence about the circumstances that existed when Mills' employment agreement was entered into, Directed's business at the time and what was anticipated, the OE market generally at the time, the capital that Directed would inject to establish the business, and Mills' intended role at Directed and the terms of his contract. I agree with Directed that this is sufficient to establish the reasonableness of the restraint having regard to the legitimate interests of Directed. 1881 Further, reasonableness is to be assessed at the time the agreement was entered into and also assessed in terms of any unreasonable impact on Mills' ability to work at the end. Mills joined as part of a 4 man team from TechAudio that Meneses represented could bring OEM clients to Directed. The business was dependent on that at the beginning. Further, it was envisaged in his employment agreement that he would have direct dealings with customers. Further, Mills did have direct dealings with OEM customers. 1882 Further, the restraint when it was entered into did not deprive Mills of the ability to earn a living in his field of expertise. He was a purchasing officer and could work for any company in any such role. But if he worked for a company in the same business as Directed, for 6 months he could not assist it to try to win business from Directed's customers with whom he had direct dealings in the previous 12 months. Such a restraint was not unreasonably restrictive on him if he complied with it. 1883 Further, as to the suggestion that Mills had to move interstate to work in his field and avoid breaching the restraints, the restraint relied upon, namely soliciting or enticing away (or endeavouring to do so) customers with whom he had contact in the prior relevant period, did not depend on geography. 1884 I would reject his assertion of unenforceability. The restraint is not unreasonable or invalid, but rather appropriately narrow. The restraint was reasonable. 1885 Now Mills says that from the commencement of his employment with Directed in mid-2009 until March 2017 he was a relatively junior employee with "back office functions". However, Mills regularly met with employees of IAL, Mercedes, Fuso, Hino and UD and had telephone and email communications with them during the course of his employment. Mills' role at Directed necessarily involved communicating with those customers in relation to the pricing, ordering and delivery of Directed's products. 1886 Further, the evidence reveals that Mills had constant and frequent direct dealings with each of IAL, Mercedes, Fuso, Hino and UD in the 12 months prior to his resignation. Examples of emails sent directly by Mills to representatives of OEMs or by representatives of OEMs to him were all found on the red hard drive such as relating to IAL, Mercedes, Fuso, Hino and UD. 1887 Now Mills' contention that the restraint sought to deprive him of the ability to earn a living in his field of expertise is untenable. Mills was a project, production, distribution and purchasing manager. His skillset was transferable and was not industry sector specific. He could have undertaken a similar role for any business, provided that business did not want him in the first 6 months of his employment to solicit, entice away or interfere with existing or past clients or customers of Directed with whom Mills had direct dealings in the previous 12 months prior to his resignation. 1888 Now when Mills resigned from Directed, he told Siolis that he was intending to start working in his wife's business. This was untrue. Mills was already and thereafter continued working with Hanhwa Aus seeking to solicit, entice away or interfere with existing or past clients or customers of Directed in breach of his restraint. 1889 Now as I have said, Mills had regular direct dealings with each of Directed's OEM customers on behalf of Directed, including IAL, Daimler group (Mercedes and Fuso), UD and Hino. Mills' role at Directed necessarily involved communicating with those customers in relation to the pricing, ordering and delivery of Directed's products. Mills had constant and frequent direct dealings with each of IAL, Mercedes, Fuso, Hino and UD in the 12 months prior to his resignation. 1890 Further, as I have said, during the period of 6 months following 8 March 2017 and in breach of his restraint, Mills was aware of and was actively involved in conduct to assist Hanhwa Aus to supply or offer to supply the HAU8000 and its accessories to IAL, a new AV unit and accessories to Mercedes and a new AV unit and accessories to Hino. 1891 I agree with Directed that this was interference with Directed's relationships with its customers with whom he had direct dealings within the previous 12 months. 1892 Now Mills asserts that it cannot be said that he solicited, enticed away or interfered with any clients or customers of Directed. But the restraint is also on him endeavouring to solicit customers away from Directed. As Directed correctly submitted, it does not need to be shown that Mills was required to deliver the winning pitch personally. He was engaged in many activities during the restraint period for Hanhwa Aus to assist it to successfully win the business of supplying AV units and accessories to IAL away from Directed. And IAL was a customer with whom he had contact in the prior 12 months. 1893 In my view Mills has breached his restraint and Meneses and the Hanhwa parties induced those breaches. 1894 Let me now turn to the case against the Hanhwa parties. The claims against the Hanhwa parties 1895 Directed's claims against the Hanhwa parties including for the diversion of opportunities are a combination of primary and accessorial liability. Let me make a number of preliminary points. 1896 Generally, it is said that Hanhwa Korea and Leemen Korea are primarily liable for breaches of either a novated form of the Hanhwa Enterprise Agreement or of the Hanhwa Korea Agreement. 1897 It is said that the evidence establishes a longstanding supply agreement in the form of either the novated Hanhwa Enterprise Agreement or the Hanhwa Korea Agreement between Directed and Hanhwa Korea / Leemen Korea. It is said that there were deliberate breaches of such an agreement by Hanhwa Korea and Leemen Korea. 1898 Further, it is said that Lee and Hanhwa Aus induced breaches of either the novated Hanhwa Enterprise Agreement or of the Hanhwa Korea Agreement by their conduct. It is said that the knowledge of Lee as to such agreements should, in addition to his personal liability, be imputed to Hanhwa Aus which he managed and controlled. 1899 Further, it is said that the Hanhwa parties including Lee are liable as knowing assisters of Meneses' and Mills' conduct, as well as the tort of inducing breaches of Meneses' and Mills' employment agreements. 1900 Now the Hanhwa parties' liability as knowing assisters requires that the anterior breach of fiduciary duty by the relevant fiduciary, Meneses, must be part of a dishonest and fraudulent design, and that the particular Hanhwa party must have had knowledge of that dishonest and fraudulent design and with that knowledge assisted the fiduciary in the execution of that dishonest and fraudulent design. Directed says that these elements have been made out. I have discussed the relevant law earlier in my reasons. 1901 Further, it is said that the Hanhwa parties had actual or constructive knowledge of Meneses' and Mills' contractual duties to Directed. In this regard it is said that YS Lee was Meneses' long-time friend and knew of Meneses' move to Directed. Further, Lee co-located with Meneses and Mills at Directed for a number of years with day-to-day exposure to their work activities. In any event, it is said that from early 2017, Lee was on express notice of the terms of their agreements with Directed after being provided with Directed's standard employment agreement which he used to create Mills' Hanhwa Aus employment agreement. 1902 Further, it is said that the diversion of opportunities conduct should be assessed through the lens of the secret commission agreements in place between Meneses and the Hanhwa parties. And in this context, it is said that Meneses, with Lee's knowledge, inducement and participation, diverted to the Hanhwa parties opportunities that should have or might have been exploited by Directed. 1903 Now it is implicit within Directed's case that Hanhwa Korea remained obliged to design new products for Directed to continue to supply to Directed's existing customers or in some cases future customers. 1904 Further, it is a feature of Directed's case that Directed and Hanhwa Korea were relevantly competitors as and from June 2006, and that it is this competitive relationship between them which underscored the alleged fiduciary breaches by Meneses and Mills of the conflict rule applicable to a fiduciary relationship. 1905 Now the Hanhwa parties challenge this characterisation. 1906 They say that Lee and YS Lee had for their own reasons determined in mid 2016 that Hanhwa Korea was not going to design new products for Directed to supply to end customers, being customers who had to that point bought Hanhwa Korea designed and manufactured products. They had determined that they would design new products and distribute them themselves, via a new entity which became Hanhwa Aus. And absent a fiduciary relationship or a contractual restriction, they say that they were entitled to make that decision. 1907 Relatedly, they say that they decided to ask Meneses to leave Directed and to join the new Australian distribution arm. Meneses accepted, but said that his commencement date would be delayed by the need to negotiate his exit from Directed. Lee wanted him to start as soon as possible. The Hanhwa parties say that absent any contractual impediment and/or a fiduciary relationship, they honestly and reasonably believed that they were entitled to approach Meneses and that Meneses was lawfully able to join them. 1908 Further, they say that they intended that Hanhwa Korea would continue to supply Directed with existing products, but they believed that Hanhwa Korea was entitled to design, manufacture and supply new product itself or via another entity. But notwithstanding the decision in respect of the design, manufacture and supply of new products, the position with respect to the supply of existing products would remain the same, that is, Hanhwa Korea would continue to supply Directed with those products, for on supply by Directed to the end user customers. 1909 So, the Hanhwa parties say that the assessment of Meneses' conduct and to a lesser extent Mills' conduct, and the Hanhwa parties' alleged involvement with respect to that conduct in the context of the breaches of fiduciary duties alleged which arose from July 2016 must be assessed through this prism, being a prism whereby Directed's business as and from July 2016 was confined to the distribution of existing Hanhwa designed and manufactured products and accessories. 1910 The Hanhwa parties say that Directed was not a competitor of Hanhwa Korea or Hanhwa Aus with respect to the supply of new Hanhwa Korea designed products. Hanhwa Korea had chosen not to supply the same to Directed. Directed was out of that picture. 1911 So, according to the Hanhwa parties there was no real or sensible possibility of conflict between Directed and the Hanhwa parties because in the market for the supply of existing product, their interests were complementary. Further, only Hanhwa Aus was playing in the market for the supply of new Hanhwa Korea designed and manufactured products. 1912 The Hanhwa parties also say that there was no contractual obligation on the part of Hanhwa Korea or Leemen Korea that obliged either of them to design new AV units or accessories for Directed exclusively or at all or to distribute any new products that Hanhwa Korea designed via Directed, whether the supply was to existing customers of Directed or to customers that Directed had never supplied to. So, they say that it was open to Hanhwa Korea and Leemen Korea to design new products and accompanying accessories and to supply those products to customers directly or via another distributor, here, Hanhwa Aus. They say that that commercial freedom extended to Directed as well, which was able to acquire products from other designers and manufacturers, and to seek to acquire products from those who were able to design and manufacture the products at a cheaper price, such as Chinese manufacturers. 1913 Further, the Hanhwa parties said that whoever paid for the tooling to manufacture the AV unit acquired exclusive distribution rights over the manufactured unit. They say that absent payment for the tooling to manufacture the DIR8000, and agreement on the unit price that Directed would pay Hanhwa Korea for the unit, Hanhwa Korea was entitled to finalise the design and then the manufacture of the unit originally described as the DIR8000 and then to distribute the same unit itself or via another distributor, Hanhwa Aus. They say that they were entitled to produce and distribute a unit to IAL in the same form as that the subject of the working mock ups of the DIR8000 which had been supplied to Directed. But in any event they say that the units designed and then manufactured and sold to IAL, first the HAU8000 and then the LM18I, were not the same. 1914 Further, they say that Hanhwa Korea had become dis-satisfied with Directed's failure to pay for the tooling expenses which Hanhwa Korea had incurred in connection with the manufacture of working samples for the DIR8000 and for the contemplated manufacture of production units, and with Directed's failure to pay for products supplied in accordance agreed terms and the renegotiations of those terms in favour of Directed. The situation arose where Hanhwa Korea was shipping stock to Australia to meet the end-customer's needs, without even a deposit having been paid. 1915 They say that in the result, and for the purpose of using the tooling paid for to manufacture the fascia of the DIR8000 and then supply a new unit to IAL and potentially units to be designed in the future otherwise than via Directed, in mid-2016 Lee approached Meneses and invited him to join the new Australian operation. 1916 Further, the Hanhwa parties say that because Hanhwa Korea had the design and manufacturing capability and because of the obvious shared economic interest between Hanhwa Korea on the one hand and Hanhwa Aus on the other hand, Hanhwa Aus had competitive advantages over Directed. Hanhwa Aus was able to draw upon the established design and manufacturing expertise of Hanhwa Korea, which had previously designed and manufactured the AV units supplied by Directed to customers, and to enjoy favourable supply prices. 1917 Further, the Hanhwa parties say that because Hanhwa Korea and Leemen Korea had supplied Directed with the DIR6200 and variations of those units for supply to other customers, and accompanying accessories, Hanhwa Korea knew the prices that it had charged Directed and was aware of the quantities and part numbers of those parts supplied. Necessarily, Directed's customers were well aware of the prices that Directed had charged. Accordingly, they say that Directed's cost price and sales price were therefore not confidential information of Directed. Further, they say that the margin between the two was also not confidential information. 1918 In any event, they say that Hanhwa Aus did not use any pricing information of Directed, whether the prices charged by Hanhwa Korea or Leemen Korea to Directed, or the prices charged by Directed to customers including IAL. It was distributing newly designed AV units, not those that Hanhwa Korea had supplied to Directed. In any event, it was able to acquire product at a cheaper supply price than that which Hanhwa Korea was willing to supply Directed. 1919 Further, the Hanhwa parties say that whether Meneses' or Mills' conduct was in breach of their employment agreements with Directed or a breach of fiduciary or statutory obligations owed by them to Directed, there was no liability on the part of any of the Hanhwa parties. They say that the Hanhwa parties were not aware of the terms of Meneses' and Mills' extant contractual obligations and nor did any of their breaches amount to breaches of a dishonest and fraudulent nature. 1920 Further, they say that even if Meneses and Mills were in breach and the breaches were dishonest and fraudulent, the Hanhwa parties did not contribute or were not otherwise involved in a significant way in such dishonest breaches, and lacked the relevant knowledge. 1921 Let me say something about the Hanhwa parties' position on the commission payments. 1922 First, they accept that Min and Hanhwa Enterprise made commission payments to OE Solutions or Meneses from 2009 to 21 May 2012. They also accept that Hanhwa Korea made payments to Meneses between 3 July 2012 to 30 November 2016. Further, they accept that Hanhwa Aus made payments to OE Solutions in 2017 for services provided to Hanhwa Aus. But the Hanhwa parties say that Min and Hanhwa Enterprise are not parties to this proceeding and the Hanhwa parties are not liable for any payments made by them. As I have already said, I agree with their position. 1923 Second, in the case of the payments made by Hanhwa Korea to Meneses or OE Solutions, liability is said by Directed to arise by reason of Lee's knowledge apparently dating from the receipt by him of an email from Meneses on 21 May 2012 and from Lee's role in allegedly directing the payments. But they say that Lee's knowledge cannot be imputed to Hanhwa Korea and he did not direct the making of the payments. Further, they say that in any event, the knowledge allegedly acquired by Lee following the receipt of the email of 21 May 2012 is not sufficient to impose upon Hanhwa Korea liability for making the payments. I have rejected this submission. 1924 Third, they say that there can be no liability for the payments made in 2017. They say that at the relevant time in 2017, Meneses had ceased to be an employee of Directed or in any event was believed by Lee to no longer be an employee of Directed. I have also rejected this submission. 1925 Let me make a number of points at the outset concerning the claims against the Hanhwa parties and some of their responses to Directed's principal themes. My underlying reasoning appears in the following detailed sections. 1926 First, in my view Hanhwa Korea was entitled to make a decision in 2016 that rather than supply new products through Directed, it would supply directly to end customers. There were no contractual exclusivity arrangements with Directed that precluded such a course. I will discuss the relevant contractual relations later. 1927 But if Hanhwa Korea or its Australian arm, Hanhwa Aus did supply new products directly, it was not entitled to do so using Directed's confidential information or in infringement of Directed's intellectual property rights. Further, it could not do so in breach of any contractual obligations as between Directed and Hanhwa Korea and/or Leemen Korea concerning the use of confidential information or such intellectual property rights. 1928 Further, if Hanhwa Korea or Hanhwa Aus did supply new products directly, they could not do so in circumstances where they were being advantaged or facilitated because: (a) they were knowing participants in Meneses' or Mills' breaches of fiduciary or statutory duties owed by the latter to Directed; (b) they had induced Meneses or Mills to breach their contractual obligations to Directed; or (c) they were using Directed's confidential information in breach of any equitable duties of confidence or misusing Directed's intellectual property. 1929 Second, and related to the previous point, I reject the Hanhwa parties' assertion that they acted honestly and reasonably in believing that they were entitled to approach Meneses and utilise his services in the way they did. In my view, they were well aware of Meneses' fraudulent and dishonest breaches of fiduciary duty and were clearly knowingly involved in his conduct and accessories to his breaches of statutory duties. Similar points can be made concerning their behaviour vis-a-vis Mills and the utilisation of his services. 1930 Third, and as relevant context, the payment to Meneses of secret commissions and the clear conflict of interest that Meneses was placed in, facilitated by and known to the Hanhwa parties, supports a characterisation of the Hanhwa parties' behaviour as being reprehensible. 1931 Fourth, the Hanhwa parties have asserted that they did not know of the terms of the employment agreements of Meneses and Mills with Directed at the relevant times. Now I do not accept this. But in any event they can be taken to have known at all relevant times of what I would describe as the standard duties owed by an employee to an employer in terms of confidential information and more generally acting in their employer's interests. 1932 Fifth, the Hanhwa parties have made much of the assertion that Directed did not pay for relevant tooling costs. They have used this excuse as both a motivation in part as to why they set up Hanhwa Aus, and also as a justification for saying that Directed somehow had lesser rights concerning inter-alia the DIR8000 or the HAU8000. But in my view they have exaggerated the significance of this question even assuming, for the sake of argument, their factual propositions to be correct. None of what they have asserted would deny the force of Directed's causes of action based upon the scenarios that I have just outlined in the second to sixth points. More particularly, whether or not Directed had paid or agreed to pay tooling costs for the DIR8000, the Hanhwa parties were not entitled to misuse Directed's confidential information or infringe its intellectual property rights by leveraging off the DIR8000 (or indeed the earlier DIR6200) to supply similar products to their own financial advantage. 1933 In summary and for the reasons that I will now explain in more detail, Directed has made out the following causes of action against the Hanhwa parties. 1934 First, the Hanhwa parties were knowingly involved in and accessories to Meneses' and Mills' breaches of fiduciary and statutory duties owed to Directed. 1935 Second, the Hanhwa parties breached equitable and contractual duties owed to Directed concerning Directed's confidential information. 1936 Third, the Hanhwa parties infringed Directed's copyright in various materials. 1937 Fourth, the Hanhwa parties committed the tort of inducing Meneses and Mills to breach the terms of their employment agreements with Directed. 1938 Fifth, and for completeness, I should say that I do not accept the other causes of action pleaded, including the assertion that Lee or Hanhwa Aus somehow induced breaches of the novated Hanhwa Enterprise Agreement. But I do accept that Lee induced a breach of the Hanhwa Korea Agreement. 1939 Let me begin by returning to some facts. Specific facts concerning the Hanhwa parties 1940 Let me at this point set out a Hanhwa-specific chronology so that the factual context within which the relevant claims are to be considered has been exposed. I appreciate that there is some overlap with my previous discussion. 1941 In the late 1990s, YS Lee met Meneses. At that time YS Lee had set up Hanhwa Enterprise. 1942 By an agreement that took effect from 1 August 2005, evidenced in a letter under the letterhead of Hanhwa Enterprise Company, Hanhwa Enterprise engaged OE Solutions to provide services to Hanhwa Enterprise on the terms set out in the letter, in return for payment of 3% of the shipped order per shipment to Eurotech. At the time, Meneses was involved with TechAudio, which was owned or otherwise affiliated with a New Zealand company called Eurotech. 1943 In mid-2008, YS Lee became involved with the development of an AV unit with a 4.8 inch screen for installation in trucks for sale in the Australian market. So far as Hanhwa was concerned, this became known as the HS 4.8 project. 1944 By December 2008, Hanhwa Enterprise had been working on the HS 4.8 project for about 3 months and had finished preliminary drafts of its GUI, its rendering and its mechanical design. Meneses suggested that they approach IAL with the design. The project changed its name in around December 2008. 1945 Meneses' fellow employees at TechAudio included Mills, Summers and Dane. In order to facilitate the sale of product by TechAudio to IAL, these employees prepared various documents including the Parts Submission Warrant, a document with various quality assurances, a document headed "Production Part Approval Dimensional Results", a PCP flow diagram prepared for the model number TAR.224F, a bill of materials, Compound Changeover Request Form and a PPAP submission template for model number TAR6000. Each of these documents were created by the then employees of TechAudio/Eurotech. When those employees moved across to Directed with Meneses in about 2009 they subsequently adapted those forms or "Directedised" them, by inserting Directed's name into the forms, for example, when Directed prepared PPAPs for IAL. 1946 In March 2009, Meneses told Lee that TechAudio or its New Zealand parent company was going bankrupt and he was taking his business to a new organisation being the Directed group and bringing with him his existing employees Mills, Dane and Summers. Meneses said that the Directed group was the sole distributor of Sony consumer products in Australia but did not have any business distributing original equipment. Meneses told Lee that he was going to use his existing relationship with Hanhwa Enterprise on the production side and with car and truck manufacturers on the sales side to create a new business. He said that he was going to buy-in into the Directed group and become a director and co-owner. Now Directed has challenged Lee's evidence on this aspect and in my view there is cause to doubt it. 1947 Meneses and his team moved across to Directed in mid 2009. 1948 In June 2009, Directed paid for and became the owner of the tooling necessary to manufacture the unit which became known as the DIR4800. Subsequently, Directed made payment for the tooling for the DIR6100 unit for Mercedes, the DIR6200 unit for IAL, the DIR4850 unit for UD, and the Orion unit. Once paid for, Directed tagged the tooling, brought the tooling to account in its balance sheet and depreciated it. 1949 From July 2009 onwards, Hanhwa Enterprise began supplying the DIR4800 to Directed which in turn on-supplied the product to IAL. 1950 By letter dated 1 July 2009, on the letterhead of Hanhwa Enterprise, Hanhwa Enterprise engaged OE Solutions effective 1 July 2009 to provide services to Hanhwa Enterprise. In effect, the 2009 secret commissions agreement, which related to Directed, was on the same terms and replaced the 2005 secret commissions agreement, which related to TechAudio. 1951 Between 21 July 2009 and 26 November 2009, Min on behalf of Hanhwa Enterprise paid commissions totalling USD 52,600 to OE Solutions. 1952 In 2010, the Hanhwa Enterprise Agreement was entered into. The signatures of YS Lee on behalf of Hanhwa Enterprise and Siolis appeared on the written document entitled "Manufacturing and Supply Agreement" dated 27 July 2010. YS Lee said that his level of comprehension of written English was not sufficient for him to read and fully understand the Hanhwa Enterprise Agreement. YS Lee spoke only basic English. He could not read or understood the document properly. I will discuss the relevant terms of the Hanhwa Enterprise Agreement later. 1953 Now although the hard copy or copies of the Hanhwa Enterprise Agreement seem to have been misplaced and only located after these proceedings commenced, Directed says that both Hanhwa Enterprise and Directed largely conducted the development, purchase and supply of products in accordance with terms of the Hanhwa Enterprise Agreement. Meneses was Directed's Project Manager and initially YS Lee and then Lee became Hanhwa's Project Manager. The MFLs, rendering and GUI clearly became the product specification. Directed requested changes to them. Hanhwa Enterprise made prototypes based on the specification and tests were undertaken on those prototypes. Products were made in accordance with the specification. Bills of materials were prepared. Forecasts were provided. Purchase orders were issued. Products were delivered. Products were packed and shipped. 1954 The process followed by Directed in the placement of orders was that Directed's customers would provide Directed with rolling orders three months in advance, which would vary depending to its own forward supply requirements. Directed would then place orders with the relevant Hanhwa entity on a back to back basis, after orders had been received from Directed's customers. Directed did undertake some forward planning and did provide the Hanhwa entity with estimated forward ordering forecasts to assist them with planning and managing their manufacturing, but these were not binding commitments. 1955 I will discuss the novation question and the unwritten Hanhwa Korea Agreement later. 1956 Let me continue with the specific chronology. 1957 On 26 September 2011, Lee emailed Meneses, Summers, Mills and Palone attaching the IAL GUI Design for the DIR6200. The attachment represented the DIR6200 GUI Design as at 23 September 2011 and recorded that it had been designed by Hanhwa Enterprise. Mills on-forwarded the email on the same day to his personal email address chekun1@gmail.com. 1958 On 7 February 2012, Hanhwa Hightech Co Ltd, which I have identified as Hanhwa Korea, was registered as a Korean company and Hanhwa Enterprise ceased carrying on business. Hanhwa Korea carries on the same business formerly carried on by Hanhwa Enterprise, although it is a separate legal entity. 1959 From 22 December 2009 to 21 May 2012, Hanhwa Enterprise paid commissions to OE Solutions totalling USD 279,171, although the payments appear to have gone into an account in the name of Meneses and his wife. 1960 It would seem that Lee first became aware of the payment of commissions between 2009 and 2012 when his father said to him words to the effect that Hanhwa paid commissions to Meneses and there were agreements in place to that effect, although Directed contended that he first became aware by other means. YS Lee asked Lee to on-forward a signed version of the 2012 secret commissions agreement which needed to be entered into when the shift was made from Hanhwa Enterprise to Hanhwa Korea. Lee sent it to Meneses' Directed email address. In response Lee received an email from Meneses stating "Please ONLY send this info to my home email only". 1961 On 4 June 2012, Lee emailed Directed's chief financial officer Floudas and copied Meneses, with the subject line "Notice of Change to Account Number" and giving details of a new bank account number. Relatedly, on 11 June 2012, Oh from Hanhwa Korea emailed Meneses: Hi, Johnny This is Irene of HANHWA HIGHTECH., in KOREA. I beg to inform you that there is a change about the incorporation of our business. Please check the point as below. ------------------------------------------------------------------------------------------------------- *CHANGES! – The name of the company: After => HANHWA HIGHTECH Co., Ltd. … ------------------------------------------------------------------------------------------------------- We have incorporated our business from the June 1st. Of course Ryan must have informed this issue to you, but I just send it to make sure. PLEASE send back products, issue the documents and pay into HANHWA HIGHTECH. (NOT HANHWA COMPANY). If you send back products, issue documents and pay into the HANHWA COMPANY as usual, then we might have problems to get them. We would be very grateful for your cooperation. 1962 The sending of these documents coincided with the incorporation of Hanhwa Korea. Employees of Hanhwa Enterprise resigned and became employees of Hanhwa Korea. 1963 Lee acknowledged that Hanhwa Korea took over and fulfilled all obligations that Hanhwa Enterprise had to any other party including any outstanding obligations under the 2009 secret commissions agreement. Lee acknowledged that Hanhwa Korea took over all of the assets that were used by Hanhwa Enterprise, took over the employment of all of the employees who had to resign and then join Hanhwa Korea and all of their accrued entitlements. Hanhwa Korea also took over the responsibility of fulfilling all orders that were still to be delivered by Hanhwa Enterprise. 1964 From 3 July 2012 to 30 November 2016, Hanhwa Korea paid commissions to OE Solutions totalling some AUD 814,830.52. 1965 On 12 October 2012, Lee emailed Mills and Summers with PPAP data for the DIR6200 and later attached what was described as a GPS drawing in connection with the DIR6200 PPAP. Also on 12 October 2012, Lee emailed Mills, Meneses and Summers telling them that within the next week he would send the DIR6200 label DIR Service Manual, harness drawings and pin out description. 1966 On 15 October 2012, Lee emailed Mills and Summers of Directed attaching DIR6200 PPAP data. In documents accompanying the 15 October 2012 email, Lee enclosed copies of drawings that were included in the design record section of the DIR6200, a DIR6200 IAL mechanical BOM document, and a DIR6200 inner design label. On 26 October 2012, Lee emailed the final DIR6200 grommet harness drawing. 1967 Lee said that from 2013 he commenced using a desk at Directed's Keilor Park premises about 2–3 days a week for about 2–4 hours each day. Lee's desk was located next to Meneses. Lee said that he was happy to do so as he thought it would be an efficient way to help with forecasting, checking supply levels, helping Directed's employees with debugging and making sure that the units conformed to local requirements. 1968 But the evidence of Siolis is that Lee commenced working from Directed's premises from around 2012 and had a dedicated desk in Directed's office. Siolis' evidence was that throughout the period 2013 to April 2017, Lee worked frequently from Directed's premises and sat in on meetings with employees and directors of Directed and IAL and was kept up-to-date on matters concerning Directed's development of new products for IAL and its current and likely future ordering of current products. Lee was introduced to IAL representatives and Lee and other Hanhwa employees who worked from within Directed's premises were provided with Directed documents and information in relation to its business affairs and products which it was developing. 1969 In my view, Siolis' evidence is more detailed and accurate. Let me return to the chronology. 1970 In 2013, and to assist Directed, Lee arranged for Hanhwa Korea to provide original equipment manufacturing support to Directed via the services of a qualified engineer, Shin, who provided OEM service support to Directed. Shin did so from 2013 to May 2017. From about October 2016 onwards Shin was employed by Hanhwa Aus. 1971 On 21 February 2013, Lee emailed Meneses, Summers and Mills a copy of the DIR6200 service manual. 1972 From June 2013, Hanhwa Korea supplied Directed with an AV unit known as the DIR6200, which Directed on-supplied to IAL. Directed had paid for the tooling for the unit. Directed provided IAL with a PPAP submission. 1973 In September 2013, Hanhwa Korea began the design and subsequent development and production of an AV unit known as the NSV7000, for a company based in the United Arab Emirates called NSV. The NSV7000 was a unit proposed to be installed into Toyota land cruisers in the Middle Eastern market. This unit was subsequently shipped to NSV in June 2014. 1974 The design for the NSV7000 included a screen that rose up out of the main chassis of the vehicle, as was the case with the design of the subsequent proposed DIR8000 and later the HAU8000. The NSV7000 was the first AV unit manufactured by Hanhwa Korea designed in this way. The design feature was arrived at following discussions between Hanhwa Korea's Kim and Lee based upon their review of market trends and what they considered would be appealing to customers as something more unique and luxurious than the ordinary design of AV units. 1975 On 17 February 2014, Hanhwa Korea sent an email to Directed with respect to the tooling costs for one of the units in the amount of USD 118,000. I also note that Hanhwa Korea had sent an invoice to Directed for the tooling costs associated with another unit. Directed paid those invoices. 1976 Lee said that it was never the practice of Hanhwa Korea to amortise the tooling cost of the head units. But it did so on occasions for the much lesser prices of tooling for accessories. Contrastingly, Directed said that it did not pay upfront for tooling after 2014. 1977 On 26 February 2014, Lee emailed Meneses attaching what was described as the latest comparison sheet for the CAM9050. The attachment bore the logo and address of Hanhwa Korea and contained product specifications for the two products and drawings for the two versions of the camera. 1978 On 27 February 2014, Meneses emailed the CAM9050 data sheet and costing, which had been sent to him by Lee, to Mills and Summers with the instruction that he needed the document to be "Directedized" and the part number to be added. This meant that he wanted the Hanhwa logo to be removed and a Directed logo inserted instead. Tselepis confirmed that Directed had a PDF application which enabled this to occur. 1979 In March 2014, following a visit to tour the Hanhwa factory in Korea, Quantam and Hanhwa Korea started working together on a joint project to develop a unit with an option of being either stand alone or marketed with a telematics interface and tyre pressuring monitoring functionality (the safety screen). The safety screen was not intended to be an OEM unit built into vehicles. Rather it is an after-market unit capable of being bought separately and then used in vehicles. But nevertheless it was designed to be mounted in a cradle on the dashboard of vehicles. It is a stand-alone unit which can operate independently of a telematics unit, but it is also capable of connecting with a telematics unit with an appropriate serial port. 1980 On 8 May 2014, Tselepis emailed Lee and copied Meneses with the subject line "Radio Specification [Draft 1]" and attached a document headed "DE01 Radio Specification Rev 0.1.pdf". The email read: Here is copy of the radio specification communications protocol between the GSM unit and the radio via RS485. Please forward to your software engineer to start implementing into radio. If any problems please come back to us ASAP. Please confirm that you have implemented the RS485 interface into the radio hardware. ***Please Note that this document is Confidential and should only be between Me and You and Johnny. NO ONE ELSE!*** 1981 What has been described in these proceedings as the Directed Specification was a radio specification. The radio specification was a communication protocol written by Vardon, a contractor to Directed, which facilitated communication between the Hanhwa manufactured DIR6200 and a Directed supplied telematics unit. The communication involved the implementation of an RS485 chip into the hardware of the unit and necessitated Hanhwa Korea's software engineers to develop and implement firmware and software to be incorporated into the unit so as to enable connectivity. 1982 On 9 August 2014, Leemen Korea was registered in South Korea and commenced operation. 1983 In August 2014, Meneses called Lee and told him that IAL was releasing a new model truck which was expected to be coming to Australia the following year and ready for launch in around August 2015. He said that IAL was looking for an updated AV unit to install in the new truck model and that this was an opportunity for Hanhwa Korea to supply products to Directed for on-supply to IAL. 1984 In August 2014, Hanhwa Korea began the design and subsequently the part development of an upgraded version of the NSV7000 which was known as the NSV7000 second version. The second version of the NSV7000 had a different and faster CPU being an Exynos4412 instead of the CLM7700, included mirroring functionality, and utilised an updated Android operating system as opposed to a Windows CE operating system. 1985 In October 2014, Lee says that he commenced conducting research into design trends and came up with some preliminary designs for the new Isuzu unit which he sent to Hanhwa Korea's head of design Seyoon Kim. Siolis' evidence is that tablet style protruding AV units were appearing in the car passenger market. The Directed design team including Siolis discussed the concept of developing such a screen for IAL and the Directed design team resolved to proceed with such a design and to brief Hanhwa with such a proposed design. The initial screen size proposed was 6.5 inches and the name given to the proposed unit was, as a consequence, the DIR6500. I accept Siolis' evidence. 1986 In October 2014, Allen Hartley and Davidson introduced Hanhwa Korea to some of their industry contacts in South Australia and to IAL in South Africa. 1987 On 28 November 2014, Hanhwa Korea provided Directed with a document headed Isuzu 2015 Project Engineering Feature List, which listed the proposed features of the new unit for IAL. 1988 In December 2014, Lee decided to increase the screen size to 8 inches. But mock up samples of a 6.5 inch, 7 inch and 8 inch AV unit were provided by Hanhwa to Directed. Directed engaged in discussions with IAL in relation to the proposed designs and IAL chose an 8 inch design which decision Meneses conveyed to Lee. As was the case with the NSV7000 unit and the 13.3 inch super audio that Hanhwa Korea had supplied into the Middle Eastern market, the design for the new unit had a screen that extended up and out of the main chassis, unlike earlier units supplied by Hanhwa Korea to Directed such as the DIR4800 and the DIR6200. 1989 During 2015, Lee appears to have assumed the role of managing director of Hanhwa Korea although its sole director remained YS Lee. 1990 In early 2015, Hanhwa Korea introduced Quantam to Hirschmann Automotive based in Germany. In January 2015, Webhouse and Hanhwa Korea executed a non-disclosure and confidentiality agreement. 1991 On 22 January 2015, a Mr Tsukano from ICL emailed Meneses at his Directed address, subject line "Your Product DAVE", being a reference to the DIR6200. He introduced himself saying that they were aware of the product DAVE through their sister company IAL and introduced ICL. Directed had not previously had commercial dealings with ICL. 1992 On 23 January 2015, Dylan Hartley produced presentation documents with the filename Quantam Technology Hirschmann collaboration. Quantam hoped to supply its telematics unit, referred to by it as the CPU. 1993 On 6 February 2015, Meneses emailed YS Lee in relation to the enquiry from Tsukano from ICL, in essence telling him not to approach ICL at that stage. Lee said that Meneses did not want Hanhwa Korea to send a sample of a unit (the DIR6200) to ICL before Meneses had met with ICL. Meneses later met with ICL representatives in October 2015. 1994 On 9 February 2015, Lee sent an email to Meneses, "Subject: Isuzu Presentation". There were also emails sent by Lee to Meneses attaching proposed renderings for the DIR8000. 1995 On 13 February 2015, Meneses sent an email to Lee which stated: 1. The concept idea is ok for now so please starting working on a Prototype. 2. They [IAL] do NOT want to drill on top of the dash!! 3. I will send you the back dash panel once we receive it from IAL. 4. Can you get Rio to create drawing of new panel on top of dash using the picture attached. They are worried about the screen covering up viewing area. 5. We really need to discuss other mounting options in more details. 1996 On 13 February 2015, Lee sent an email to Meneses informing him that he would get back to him regarding tooling cost and unit cost. On 16 February 2015, Lee informed Meneses that Hanhwa would make a non-functional prototype sample by the end of March, emphasising that they had to press the start button as soon as possible. 1997 On 17 February 2015, Hanhwa Korea forwarded a quotation to Directed for the tooling for the Isuzu 8 inch multimedia digital audio unit of USD 225,300. 1998 On 12 March 2015, Oh from Hanhwa Korea emailed Meneses and advised that Hanhwa Korea had on that day sent samples to Directed of a 6.5 inch design mock-up sample, a 7 inch design mock-up sample, an 8 inch design mock-up sample and telematics case sample. The design mock up samples were created using a 3D printer. They were not functional. 1999 On 25 March 2015, Lee emailed Meneses and Summers attaching what were said to be the latest ideas for the new Isuzu project and advising that the design mock-up had been sent that day. 2000 On 26 March 2015, the Hanhwa Korea design, purchasing and sales and support teams discussed the design for the new Isuzu product. The minutes of the meeting recorded that a design mock-up sample for an 8 inch unit had been sent to the client on 25 March 2015 and that it was anticipated that design confirmation would be received early the following week. It was noted that design confirmation would follow discussion with the client. The minutes set out various matters that had to be attended to by each of the relevant teams. It would seem that the changes required were as a result of directions or requests received from Directed. 2001 On 31 March 2015, Lee on behalf of Hanhwa Korea sent an email to Meneses providing notification of change of company. This notification related, inter alia, to Leemen, and in substance provided that from 1 April 2015 accessory products would be supplied by Leemen Co and the AV units would be supplied by Hanhwa Korea. 2002 From 1 April 2015, Leemen Korea has supplied the AV accessories which work in conjunction with the AV units designed and manufactured by Hanhwa Korea. Lee's mother is the sole shareholder of Leemen Korea. 2003 In April 2015, Hanhwa Korea invited Quantam and Webhouse to join them in presenting a combined telematics solution to Hanhwa Korea's German client Hirschmann. The joint proposal involved the safety screen or RA7000 unit, which was to be designed and manufactured by Hanhwa Korea, and a telematics unit designed by Quantam/Webhouse known as the CPU. 2004 On 6 April 2015, a further meeting was held at Hanhwa Korea's offices attended by representatives of the research team, the production management team, the design team, the business support team and the purchasing team. The meeting minutes record the objective of the meeting as being "DIR6500" new Isuzu, schedule change and requests by Directed and related consultation. The changes required were as a result of directions received and requests made by Directed. 2005 The matters discussed included a schedule change, with shipment now scheduled for November 2015. It was requested that the instrumental mock-up sample be produced by May 2015 and a working sample by June 2015. The minutes record various other suggested changes to the design of the unit from Directed. 2006 An MFL for the proposed unit which was dated 6 April 2015 set out revised features of the proposed unit from the earlier version of 28 November 2014. It noted a change in the CPU for the proposed unit from the Freescale iM6 1.5GHZ QUAD core cortex A9 unit to the 1.4GHz Cortex-a9 Quad Exynos 4412, being the Samsung Exynos CPU. 2007 On 20 May 2015, Lee emailed Meneses and attached a quotation for the tooling and a quotation for the supply price to Directed of the Isuzu 8 inch unit. The email read in part: As per our discussion at the truck show, please see attached the latest Isuzu unit cost and tooling cost. The tooling would take 50 days and we can make a working sample as tooling on July. I will send a new design of Isuzu as we discussed soon. Please let me know what you think. 2008 The minutes of the Hanhwa Korea design engineering team meeting of 20 May 2015 record that the testing of the design mock up sample on a truck in Australia was in progress and there were various customer requests to be actioned. By the end of May 2015, Hanhwa Korea had prepared a GUI concept design for the new Isuzu unit. 2009 On 15 June 2015, Lee emailed Meneses with the subject line "New Isuzu Project 2016 Items". The email referred to their conversation and then listed details of what had been discussed, including: New Isuzu Project 1. Start to supply from End of Oct or Early of Nov. 2. First order would be 500 per month. 3. DIR6200 is being supplied until Apr 2016 for N Series. …. 5. Hanhwa sent a new mock up sample on 5th June 6. Hanhwa will advise a wireless charger pocket/Phone holder on end of June 2010 Under the sub heading "Items that still need to be confirmed are as follows:" included the "1. Tooling costs ($210k). 2. Piece price ($712). 3. Confirmed a mock-up sample to start a tooling. 4. Two working sample on End July or Early of Aug." 2011 On 23 June 2015, Lee emailed Meneses a quotation for the 8-inch unit in the amount of USD 713, excluding any external options. 2012 On 27 July 2015, Lee authorised the manufacture of tooling for the DIR8000 for IAL. The mould necessary for the manufacture of the product was priced at 201,000,000 Won. 2013 By August 2015, and following various payments made by Hanhwa Korea to third parties who manufactured the tooling, Hanhwa Korea had incurred approximately USD 230,000 in connection with the tooling. The tooling was necessary to make the working sample, which was anticipated to be sent to Directed at the end of July/early August 2015 with anticipated full production and supply from the end of October or early November 2015. 2014 On 11 August 2015, and for the purposes of the safety screen project, Hanhwa Korea and Quantam entered into a Heads of Agreement. I have dealt with this elsewhere and do not need to elaborate further here. 2015 On 17 August 2015 there was a Hanhwa engineering team meeting. The minutes of that meeting headed "DIR8000 New Isuzu, Working Sample preparation status and schedule negotiation" list a range of completed and pending actions by the various design teams but in addition note that it was proposed to ship two working samples to Directed on 8 September 2015 and noted that if issues were found on actual vehicle installation testing they would be dealt with by the use of open and close lists. 2016 On 27 August 2015, Meneses emailed Lee asking him whether he could get Meneses a new cost of USD 650, referring to the proposed price at which Hanhwa Korea would supply the unit to Directed, which had previously been quoted at USD 713. Meneses' email continued: Based on this cost I think we will be a lot closer to their target. So our base cost is: • $650USD / 0.70AUD = $928.58 X 1.15% for freight and Insurance • Total Landed Cost $1,067.86 Plus Tooling amortisation $30.00 over 10,000 units • Total Cost $1,097.86AUD Based on the above Directed will charge IAL $1290.00 which is a profit of $192.40AUD per unit which we have to cover warranty and delivery around Australia. As you can see we are only making 10% which is not a lot when you think we have to pay up front tooling and stock. Let me know ASAP about the new cost of $650USD. Sorry to do this but I know you and created a lot of work so far and the current exchange AUD is not helping anyone. 2017 There is a reference to Directed paying for the tooling upfront. 2018 In response, Lee emailed Meneses stating that based on the proposed price of USD 650, Hanhwa Korea's margin had reduced to only USD 68. Lee then set out his material cost for the project which was USD 582. He concluded by offering a new price, which was not as low as that sought by Meneses, saying "My new price for this project would be USD 672.00 and hopefully, we also have an opportunity with lots of accessory business which has good margin between us I think…". 2019 By an exchange of emails between 8 September 2015 and 6 November 2015, Lee provided Summers with a movie of the DIR8000 crash test which had been conducted in Korea. Summers asked for the impact parameters of the crash test, the test results and asked whether the test met industry standards. Lee responded with the information sought. 2020 On 17 September 2015, Lee emailed Meneses with a tooling quotation in the amount of USD 210,000. Lee's email advised "Please create a PO when you can." Lee forwarded a further quotation for the unit price as of 6 November 2015 in the amount of USD 670. Lee emailed Meneses with the latest tooling quotation which was in the amount of USD 210. 2021 The minutes of meeting of the Hanhwa engineering team meeting of 21 September 2015 titled "Post DIR-8000 Field Test Requests by Client and Improvements" noted a range of matters to be addressed including the addition of a home button, apparently needed following the field testing of the DIR8000 sample unit. 2022 The minutes of meeting of the Hanhwa engineering team of 19 October 2015 noted the production of a further working sample on 20 November 2015. 2023 On 26 October 2015, Palone sent Lee an attached open and close list document and requested that Lee update him as new software/firmware samples became available. The open and close list detailed issues identified by Directed in relation to the samples of the DIR8000 and its request for changes or for various issues to be addressed. 2024 On 27 October 2015, Lee emailed Summers and Meneses and advised them that he had uploaded the latest software for the DIR8000 at his FTP site. 2025 On 27 October 2015, Meneses emailed Floudas, Siolis and Tselepis. The email read: Please come to me regarding outstanding payments for Hanhwa! As you know they have shipped over $500K USD of stock that we have not paid. … Hanhwa are about to stop sending any further stock unless we pay for it. We have had 6 years to get payments right and we still can't get on top of this issue. 2026 On 6 November 2015, Lee emailed Meneses with the latest quotations for the DIR8000 project, comprising the latest quotation for the unit itself being USD 670 for the basic unit excluding various external options, along with the tooling quotation which remained in the form previously sent. 2027 On 11 November 2015, Andrea of Directed conducted a "tear down" of the working sample of the DIR8000 that had been supplied by Hanhwa Korea. 2028 Siolis said that the "tear down" document was prepared by Directed in order to test the sample units and the findings were then provided to Hanhwa Korea. Directed's Andrea similarly said that the report contained an evaluation of the working sample from an electronics perspective. The "tear down" identified the CPU as the Samsung Exynos CPU. This confirmed that the CPU in the working sample sent to and broken down by Directed was that model of the CPU. 2029 There is a second version of the "tear down" which contains a right hand column which contained the pricing for each part of the unit, which was not provided to Hanhwa Korea. Andrea said that he did the pricing work at the request of Tselepis or Siolis, but that he could not recall why. The work done by Andrea including the pricing took 4 to 5 days. The second version of the "tear down" document priced the estimated parts of the unit to be manufactured by Hanhwa Korea. Siolis said that Directed did this in order to evaluate the reasonableness of the price at which Hanhwa Korea proposed to provide the unit to Siolis. 2030 On 13 November 2015, Summers emailed Lee with the latest open and close list. The open and close list contained various items and columns including Directed comments and Hanhwa comments. 2031 On 19 November 2015, Hanhwa Korea registered the design of the DIR8000 product with IP Australia. The design recorded the name of the designer as Hanhwa Korea employee Kim. Lee said that he obtained the registration because he had been told by Meneses that Siolis was seeking to manufacture the unit in China at a cheaper price, and wanted to protect Hanhwa Korea's rights. Directed disputes Lee's evidence. Despite it being Lee's evidence that he was told by Summers and Meneses that Siolis was looking at having the DIR8000 made by a cheaper Chinese supplier, that proposition was never put to Summers. Lee in cross-examination acknowledged that as at April 2016 Directed's conduct did not suggest to him that Directed was considering or intending to seek supply from any other supplier and that Directed intended to purchase the product from Hanhwa. Further, Directed says that the evidence reveals that since at least December 2015, Meneses and Lee had agreed to set up a Hanhwa entity in Australia and that they would seek to divert Directed opportunities to that entity and to seek to move Directed's customers and business to that new entity. In that regard, any emails sent by Meneses after December 2015 should be viewed through a prism of Meneses seeking to achieve that objective, rather than necessarily acting in the genuine commercial interests of Directed. I tend to agree. 2032 Summers sent the version of the "tear down" without the pricing information to Lee on 9 December 2015. Lee sent it back on the same day under cover of an email providing his answers and marked up changes. Lee had added in a reference to an additional CPU, which I will describe as the Nexel CPU. Lee agreed that from this point on, it was proposed to use the Nexel CPU in the DIR8000, had it moved into production. Lee maintained however that the only working samples made for the DIR8000 were those that contained the Samsung CPU. 2033 The head of design, Kim, also maintained that the changes to the GUI planned from November 2015 were not implemented into a new working sample. Similarly, he said that the changes to the GUI of the unit set out in a later document were not in fact incorporated into any working sample for the DIR8000. The Hanhwa parties say that necessarily, and because the DIR8000 did not move into production, neither the Nexel CPU not the changes to the GUI found their way into a production model DIR8000. But the evidence from Girgis was that the DIR8000 December 2015 bill of materials records that the CPU would be Nexcell S5P6818, the MFL for the DIR8000 as at December 2016 specified the Nexcell S5P6818, and the comparison table which was prepared by Hanhwa for IAL dated April 2017 comparing the DIR8000 and the HAU8000 records that both units had the Nexcell S5P6818. Girgis accepted that without the ability to inspect working sample units he could not ascertain whether sample units were sent which contained the Nexcell S5P6818. Girgis noted that the sample DIR8000 shipped on 21 July 2016 was described as a working sample with the latest software and that this unit was at an advanced stage of development. The effect of Girgis' evidence lead to the conclusion that the sample DIR8000s did in fact contain the Nexcell S5P6818. Girgis concluded that the final working sample which was ready to be shown to IAL as at February 2017 would have had the Nexcell S5P6818. I note that the evidence suggests that the unit as at that stage of development at the end of 2016 was a unit that would have been supplied by Hanhwa to Directed if it had placed a purchase order for the tooling. 2034 The MFL for the unit shows a copy of the rendering as at December 2015. Although the unit name is DIR6500, the feature list suggests that the screen would be 8-inch in dimension. The CPU listed in the MFL is the Android CP OS Automotive 4.4 version 1.4 GHZ OCTA core chip CPU. This is not the Samsung Exynos CPU, but a new CPU, the Nexcell S5P6818 or the OCTA Core Chip 2035 I should just note at this point that Lee said it was planned to change the CPU in the DIR8000 from the Samsung. The same applied in relation to the operating system, following the release of a new operating system known as the Linux/Android Rollipop 5.1.1 GCC Complier Open JD5 or version 5. Lee maintained that both these changes were never actually incorporated into the mock up samples provided to Directed, and that the updated features were therefore only conceptual in nature. Lee said that the work involved in incorporating the new CPU and the new operating system was substantial including new schematic drawings and firmware applications which he did not authorise for the DIR8000. But this is disputed by Directed. I have already touched on the dispute and will return to this later. 2036 In December 2015, Hanhwa Korea submitted a quotation to Directed for the 8-inch unit in the amount of USD 660 excluding external options. 2037 On 7 January 2016, Lee emailed Allen Hartley, Davidson and Dylan Hartley with an engineering MFL, engineering specifications and tooling quotation for the safety screen. 2038 On 15 January 2016, Floudas emailed Lee and copied to Meneses concerning a tooling quote. The email asked for a more detailed breakdown of the tooling the subject of the USD 230,000 quote. Lee responded the next day providing the detail sought and noting that this was a normal tooling quotation as a new project and he attached the detailed breakdown list of tooling that they had made. 2039 On 18 January 2016, Lee emailed Floudas chasing up payments due to Hanhwa and Leemen for units and accessories that had been supplied. 2040 On 20 January 2016, Lee followed up the tooling email of 15 January 2016 with an email which read: "If you need anything in regard to the tooling of invoice, please ask me. We need a PO to go further as I discussed with Johnny.". 2041 On 24 January 2016, Lee emailed Meneses referring to proposed Australian field testing between 13 February 2016 and 23 February 2016 and a production date at the end of April or early May 2016, and concluded "How did you go with PO.. You said the PO should be raised before you go???". The email makes it plain that the proposed dates for testing and production were Lee's plan concerning the DIR8000 project. 2042 On 25 January 2016, Meneses responded saying that the latest information from IAL was that the new model would be delayed and saying that he did not think it would get to market until August 2016, which would allow for further testing in April/May 2016. He promised to find out what was happening with the PO. On 25 January 2016, Floudas emailed Lee, passing on a list of questions that Tselepis had raised in relation to the tooling. An item of the email on-forwarded to Lee noted that once tools were paid for and made they would be visiting the factories and asset tagging all the tooling. Further, there was a need to take photos for taxation purposes and a need for the serializing of all tools. 2043 At no point during any of these exchanges concerning Directed's need to pay for the tooling for the DIR8000 did anyone make any reference to such payment being amortised, in so far as moneys needed to pass from Directed to Hanhwa Korea. However the email which Meneses sent to Lee on 27 August 2015 in relation to the request for pricing for supply of the DIR8000 at USD 650 referred to the fact that Directed's pricing of its landed cost included "tooling amortisation $30 over 10,000 units", which Lee accepted was Meneses trying to persuade him to provide the unit at USD 650 with the cost of the tooling being amortised at $30 per unit over 10,000 units. 2044 On 27 January 2016, Meneses emailed Floudas passing on complaints from Lee regarding late payment. Meneses informed Floudas that Hanhwa would not send or make stock any more until Directed caught up with payments for stock that had been sent without payment. Query whether in fact that was Hanhwa's actual position. 2045 On 16 February 2016, Lee emailed Meneses "Hi Johnny, Please see attached the presentation of HINO new Audio project.". Meneses responded "Send it to my Directed email. Isuzu DMax was for me." Lee said that he had made a mistake in sending the email to Meneses' personal email and that the reference to the new Hino project was meant for Directed. He said that the Isuzu D-MAX was something that they could do themselves because it was a new project for Isuzu Utes, which was not an existing customer of Directed. But this was contradicted by another email which revealed that the plan of Meneses and Lee was to try and land Isuzu D-MAX or another customer before they revealed their hand and in the meantime they needed Directed to keep ordering all the current products until they moved them after one year to Hanhwa Aus. 2046 On 18 February 2016, Pieries emailed Summers, Palone, Jaffe, Meneses, Mills and Lee and set out what was said to be minutes of a meeting attended by some of them earlier. The email noted the existing supply arrangements with customers including IAL, UD, Hino, Western Star, Mercedes and Fuso and potential supply opportunities with Hino and Mercedes in 2016. The minutes were marked up by Lee. In relation to the DIR8000, the minutes noted that two old samples of the DIR8000 were to be sent back with two new ones to be sent out and listed a range of matters in connection with the DIR8000 unit and some of the accessories which were to be attended to by Lee. 2047 On 2 March 2016, Hanhwa Korea sent further samples of the DIR8000, and a further sample with new software on 21 July 2016. 2048 On 8 April 2016, Meneses emailed Siolis and Tselepis, advising that IAL had found a truck that they could buy; he asked that they get back to him as soon as possible. 2049 On the same day, Oh emailed the Korean engineers requesting the commencement of the D-MAX 8 inch audio visual unit project. Lee denied that the reference to the Australian client was Hanhwa Aus; he said it just referred to Isuzu Utes. 2050 Lee agreed that the D-MAX was not for Directed and that some testing that Summers later did on 16 June 2016 for the D-MAX unit did not relate to Directed business. Lee said that he had earlier approached Meneses about Directed going ahead with the Isuzu D-MAX presentation but that Meneses had rejected it because of the tooling. Directed challenged this by reference to other material. 2051 Lee said he planned to approach Isuzu D-MAX, after Hanhwa Aus had been established. But this is contradicted by the contemporaneous documents which reveal that Hanhwa commenced efforts to design a unit and to make a presentation to Isuzu Utes before the incorporation of Hanhwa Aus and well before the establishment of the Hanhwa Aus business in Brooklyn. Lee said that Directed had not supplied D-MAX/Isuzu Utes. Lee did not accept that it would be wrong for Hanhwa Korea to supply a newly designed product to a customer to whom Hanhwa had already supplied via Directed, as long as it was a new product, but agreed that it would be a different situation if Directed owned the tooling or owned the IP. Lee said that Australia was an open market, and explained that it was frustration with Directed's regular failure to meet its obligations to pay for stock on time, together with not paying Hanhwa Korea for the USD 250,000 in tooling costs for the DIR8000, that was the catalyst for the Hanhwa parties determining not to supply new products to Directed, and instead to do so via Hanhwa Aus. Directed disputes this. 2052 In April 2016, Summers and Meneses visited Hanhwa's production facilities in Korea. The agenda for the meeting included reviewing Hanhwa Korea's design processes, including the PCB design, reviewing the specifications for the 8 gig SD Card Standard, and noted the need to meet with Hanhwa's engineers to undertake bug testing and GUI improvements. 2053 On 21 April 2016, Meneses emailed Siolis and Tselepis advising that Hanhwa Korea had agreed to Directed's request for a change in payment arrangements. Meneses confirmed a new arrangement where Directed would only pay 20% upfront on placement of the purchase order with the balance of 80% due when the stock was ready for shipment. The Hanhwa parties say that such a change was in the interests of Directed and adverse to Hanhwa Korea. Meneses told Siolis and Tselepis that Hanhwa was not happy with Directed's making of payments of 100% when the stock was ready for shipment and in other cases Hanhwa had had to send stock to Directed without any payments being made by Directed at all. Meneses said this approach had to stop. 2054 But the evidence of Siolis and Floudas, which I accept, was to the effect that Directed never received any communication from Hanhwa Korea that any lateness in payment threatened supply of products or that due to late payment Hanhwa Korea might cease supplying products to Directed in the future. Further, Directed's evidence was that any lateness was exacerbated by Meneses' practice of receipt of the invoices and his directions in relation to when and which invoices should be paid and what amount of certain invoices should be paid which were complicated. 2055 On 26 April 2016, Meneses, Jaffe and Tselepis from Directed met with IAL's Humphries, Shanks and McLean. They agreed to work towards a mid-2017 launch for the DIR8000 and for the MFL to be locked in for the main unit and accessories by 1 August 2016. IAL approved the overall hardware and basic design concept. 2056 In May 2016, Hanhwa Korea began the design and subsequent development production of an AV unit known as the 13.3 Inch Super Audio for NSV intended for supply in the Middle East from January 2017; this was the NSV 1330. 2057 On 2 and 9 May 2016, Meneses emailed Siolis and Tselepis, chasing up a response in relation to the Isuzu truck. 2058 On 24 May 2016, Lee again emailed Meneses complaining about late payments from Directed. 2059 In May and June 2016, Meneses and Lee spoke about and exchanged emails in relation to the Isuzu truck. Meneses said the Isuzu truck would be great for testing, that he needed to let IAL know as soon as possible, and that Siolis and Tselepis did not want to buy it because it was too expensive. It would seem that Meneses and Lee planned to acquire the truck for testing of the DIR8000 for the benefit of Hanhwa rather than Directed. 2060 Now Lee gave evidence that in June 2016, Lee and his father decided to establish an Australian Hanhwa company, which became Hanhwa Aus, to enable it to become a direct distributor to IAL, initially for the product that was otherwise known as the DIR8000. They did so because they were upset with the way they were treated by Directed involving the late payment for stock, the changes to the agreed payment arrangements and because Directed had not paid for the tooling for the DIR8000, which had been paid for by Hanhwa Korea back in June/July 2015. The Lees intended that Hanhwa Korea would continue to supply Directed with the existing products, being the DIR6200 and derivatives such as those supplied to Hino, UD, Fuso and Mercedes Trucks, that Hanhwa Korea was supplying to Directed. But the contemporaneous documents reveal that Meneses and Lee planned to establish a business together in Australia from late 2015 and that they intended from that date to seek to exploit opportunities of Directed to the exclusion of Directed through the business that they would establish and that they wanted their activities to remain secret until they landed one of those opportunities. The documents also reveal that the decision to exploit the SuperDAVE opportunity to the exclusion of Directed was not made due to any failure on the part of Directed to pay for tooling of that unit or to pay for stock or any other alleged treatment of Hanhwa by Directed. 2061 Further, Lee says that around mid-2016, he asked Meneses to leave Directed and come across. Meneses responded positively but said he needed to work out his exit from Directed where he claimed to be an owner and director, and said that arranging the exit could take as long as a year. He said he would bring across his old TechAudio staff, Mills, Dane and Summers. But the evidence reveals that Meneses actively worked on behalf of Hanhwa from late 2015 in order to seek to further the business of Hanhwa and the agreed plan with Lee was to seek to divert Directed's business opportunities and ultimately move its entire business to Hanhwa. 2062 In late June 2016, Hanhwa Korea issued an invoice to Quantam for a half share of the tooling costs associated with the manufacture of the safety screen. 2063 On 28 June 2016, Allen Hartley sent Lee an email containing proposed terms for the rental of the downstairs section of the Brooklyn premises. Companies associated with the Hartleys also occupied space in the same building. On 28 June 2016, Meneses visited the premises to see whether they were suitable. Lee said that the negotiations for the lease were engaged in by him alone. But the evidence suggests that Meneses was at all times acting as Lee's business partner in relation to the establishment of Hanhwa Aus and the negotiation of leased premises, the recruitment of staff and the incurring of expenditure and the acquisition of assets. 2064 On 14 July 2016, Meneses emailed Floudas, chasing up payments due to Hanhwa and Leemen for products that had been supplied by Hanhwa Korea. 2065 On the same day, Meneses emailed Lee in response to Lee's email the day earlier relating to a Brooklyn office that Lee was thinking about. He stated: I think you need to slow down just a bit, we need to get Isuzu Dmax or another customer before we do anything. Do [not] sign for a long term lease, we need to do this year by year. We don't want to be in a place where we get [too] big in 12 months. When is the new Dmax with Navi ready?? The quicker we do this the quicker we can start our own. One thing you need to understand is that Directed still needs to keep ordering ALL of our current products until we start to move them after one year… 2066 Lee said that at this time his plan was to keep supplying Directed with all current products but believed that it was open to him to tender for new customers. He said that the reason he had not told Siolis and Tselepis of this was because Meneses said he did not want him to, until he had arranged his exit from Directed. But their plan was as revealed in their email. 2067 In late July 2016, a related Hanhwa entity to Hanhwa Aus entered into a lease for the Brooklyn premises. Gridtraq occupied space in the same building. The related entity signed a lease with Central Trading Trust. The signatories to the lease were Lee on behalf of the related entity and Dylan Hartley on behalf of Central Trading Trust. 2068 On 5 August 2016, Meneses emailed Lee advising that he had bought a new laptop for the office together with some software and additionally had arranged insurance for the Isuzu truck from the RACV. Meneses sought reimbursement. 2069 On 15 August 2016 Meneses forwarded Lee a copy of the insurance certificate provided by ADK Insurance Brokers to Directed for its product guarantee insurance. 2070 Separately, Mills' wife had been providing marketing services, apparently since December 2015, in connection with the proposed set up of Hanhwa Aus. As part of that, on 2 September 2016 she emailed Lee and Meneses and proposed logos for Hanhwa Aus. Meneses also had initially paid for the registration of the Isuzu truck and sought reimbursement. 2071 On 15 August 2016, Hanhwa Korea sent to Directed an email with a quotation for the 8 inch unit (excluding external options) in the amount of USD 660 and a tooling quotation in the amount of USD 225,300. 2072 On 17 August 2016, Directed calculated various proposed sale prices with respect to the unit to be supplied to IAL based on gross profit scenarios ranging from 15% to 30%. The worksheet calculation incorporated a cost calculation with respect to the tooling with the cost amortised across 21,000 trucks, being Directed sales to IAL rather than Hanhwa Korea's sales to Directed, and based upon a cost of tooling of USD 225,300. 2073 On 19 August 2016, Lee emailed Meneses asking Meneses "Why is he [Directed's CFO] still paying 20% payment that I need to hold all stocks until full payments made"; the email referenced payments of 20% having been made against certain purchase orders. 2074 On 23 August 2016, Lee emailed Meneses the "Isuzu Ute Presentation", which was the D-MAX Ute for Isuzu Utes, asking for his thoughts. The attached presentation included contact details for Meneses at what was then a leemen.net.au address. 2075 Subsequently, Lee announced to the Hanhwa Korea staff that the product name for the new 8-inch unit had changed from the DIR8000 to HAU8000 because Hanhwa was going to supply the product to IAL itself. To that end on 2 September 2016, Oh emailed members of the Hanhwa Korea production team to the effect that in contrast to shipping products to Australia with the prefix DIR because they were delivered to the end customer through Directed, the part number of the existing DIR8000 would be changed to HAU8000 because the new projects will not involve an intermediary and will be delivered directly to IAL. Lee said that the new unit (the HAU8000) would use the tooling for the fascia that Directed had not paid for, but that new tooling would be manufactured for the production of the rear chassis and rear connectors. Oh gave evidence saying that the tooling for the "backside" of the unit was new. The engineers Park and Han confirmed this. But the evidence of Lee was that he authorised the manufacture for all of the tooling to manufacture the DIR8000 in July 2015 and that by September 2016 it had all been manufactured and paid for by Hanhwa Korea. Further, Lee agreed that there was no obligation for Directed to pay for any tooling to manufacture the DIR8000 until Directed placed a purchase order for the tooling. Further, the evidence of the Hanhwa witnesses was that the HAU8000 was manufactured with this tooling save that some new tooling for the fascia was required because of the addition of the gesture sensor. The DIR8000 as at 11 November 2016 was identical to the ultimate and final design of the HAU8000 save the addition of the gesture sensor. Further, Lee agreed that had Directed paid for the tooling then the unit which Hanhwa would have delivered was a unit the rear of which was depicted in the line drawing dated 11 November 2016 which is exactly the same as the rear of the HAU8000. 2076 Oh's email also referred to the product under development for Isuzu Utes, the D-MAX, which also bore the HAU prefix, meaning that the intention was to provide it (the HAU8100) directly, that is, not via Directed. 2077 On 14 September 2016, HanHwa Hightech Australia Pty Ltd, which had been incorporated some years earlier, ceased operations in Australia. I do not need to elaborate further on its position. On 21 September 2016, Hanhwa Aus was incorporated with Lee as its sole director. 2078 In October 2016, Hanhwa Korea invited Quantam and Webhouse to assist it with a combined presentation of a telematics solution and AV unit to Toyota in Japan. 2079 On 4 October 2016, Oh emailed Mills copying in Meneses and Summers at each of their Directed email addresses enclosing the latest shipping report. The email noted that she had sent replacement parts for the DIR6160, which was a product which Hanhwa Korea had manufactured and supplied to Directed for on-supply to Mercedes. The email also noted that the shipping of the D-MAX sample had been postponed. 2080 On 14 October 2016, Meneses forwarded an email trail to Lee relating to meetings in 2015 with ICL. Lee said that the referral of the email of 14 October 2016 related to the DAVE unit, which Hanhwa Korea hoped to supply to ICL in Japan via Directed. But the evidence reveals that from this date Hanhwa sought to exploit the Hanhwa ICL opportunity to the exclusion of Directed by the supply of the HAU8000 and some of its accessories directly to ICL. 2081 On 16 October 2016, Meneses emailed Lee in relation to the D-MAX. 2082 On 17 October 2016, Meneses emailed Lee chasing up his commission payments. 2083 In November 2016, Davidson discussed with Dylan Hartley difficulties he was having getting the CPU, being the Gridtraq designed telematics unit, to integrate properly with the safety screen. On 16 November 2016 he received an email from Oh into which Davidson was copied, containing specification information for the CPU and the safety screen. I will return to the Gridtraq parties' position and Directed's case on this aspect later. 2084 On 8 November 2016, Hanhwa Korea conducted a planning meeting for the HAU8000. The reference to the intended December 2016 field test is set out in an email from Lee to the Korean engineers dated 30 November 2016. The team contemplated a field test for the HAU8000 unit in December 2016 and noted that the new PCB work would start in 30 days' time, with the new circuit design time in 45 days. An item noted that as the moulds for the existing AV products were Directed's property, Hanhwa Hightech's own common mould for the rear part of the HAU8000 and the proposed new Hino product, namely the HAU8100, was being considered. 2085 On 10 November 2016, Oh emailed the Leemen Korea circuit design team in relation to HAU8000 accessories and the camera project discussion. The email appears to request production of a field test sample of the CAM9100D being a camera which had undergone development with Directed for supply by Directed to IAL with the DIR8000. The email also appears to provide instructions as to whether the CAM9052 would be the default camera and how the CAM5000B would be connected through the control box. All of these products had undergone development with Directed for supply by Directed to IAL with the DIR8000. 2086 On 14 November 2016, Kim from Hanhwa Korea's research and development department sent an email to Lee and others requesting confirmation in relation to the HAU8000 field test sample. Because of the schedule Kim advised that they had decided to contract out the PCB layout which had the advantage of reducing the time, albeit resulting in an increase in cost. 2087 On 14 November 2016, Lee emailed the Hanhwa Korea engineering team and informed them that he had spoken to IAL over the phone and that they had reported that testing in January was not feasible. Lee instructed them to proceed as per the existing schedule, but in light of the situation to consider only investing in the mock-up samples. But Lee said that he had not actually spoken to anybody at IAL and conceded that he was not telling the truth to his employees. He said that he wanted the workers to remain as motivated as possible in relation to the work on the HAU8000 in light of the fact that they had been working on the new Isuzu unit for years, that is, since late 2014. He provided a similar explanation in relation to his text to Oh of 18 November 2016 where he texted Oh as follows "We won ISUZU … 8000 for 1300 dollars". When cross examined Lee said that this price was his wish price and that he told Oh and others that they had won the contract to keep them motivated given that they had been working on the project for years. 2088 On 15 November 2016, IAL's Humphries emailed Meneses requesting a desire to lock away the price and specifications for the new unit and requiring a full proposal from Directed. The email advised that the launch timing for the F Series remained July 2017 whilst the launch timing for the MY17 N Series was most likely October 2017. IAL also wanted some pricing. The email was forwarded by Meneses to Lee. 2089 On 17 November 2016, Dylan Hartley emailed Allen Hartley, Oh, Davidson and Lee with the subject line "Feedback – Action Items". The email related to three items. Relevantly item 2 read "The Isuzu radio protocol for messaging is different to the safety screen. Please can you send the Isuzu protocol. Asap to finish the integration for telematics." Lee appeared to give evidence that he understood that Hanhwa was being asked by the Gridtraq parties to provide them with a copy of the Directed Specification and that he understood that was the communication protocol necessary to communicate between an Isuzu AV unit and a telematics unit and that Oh sought his approval to do so and that on his instructions she did provide the Directed Specification to the Gridtraq parties. I will deal with this all in more detail later, particularly as it concerns the Gridtraq parties. 2090 On 9 and 17 November 2016, Sue Mills sought feedback from Lee and Meneses about the letterhead and business cards for Hanhwa Aus and about development of a website for Hanhwa Aus. She kept her husband in the loop. 2091 On 17 November 2016, Dylan Hartley emailed Lee requesting a copy of the Isuzu protocol and asking whether it may be necessary to update the Isuzu radio firmware. He said that the request was made in the context of difficulties he was experiencing in getting the Gridtraq telematics unit to integrate with the Hanhwa Korea designed and manufactured safety screen. He said that Gridtraq had conducted tests using their CPU with the Isuzu radio believing that the way in which the safety screen and the Isuzu radio communicated with the CPU should have been similar because both were being manufactured by Hanhwa and would comprise similar hardware components and firmware. Again, I will return to Directed's case against the Gridtraq parties later. 2092 On 18 November 2016, Oh emailed Dylan Hartley advising that she had uploaded files to a Dropbox account including up-to-date firmware for the DIR6200 and a protocol data sheet for the Isuzu unit. 2093 Further, on that day Lee emailed Meneses with the subject line "Isuzu SuperDAVE cost and MFL" attaching a quote from Hanhwa Korea for the DIR8000 as of 18 November 2016 (USD 713 per unit), whilst the quoted cost for the SuperDAVE tooling was USD 225,300. He also attached what was described as the SuperDAVE MFL as of 18 November 2016. Lee said he prepared the 18 November 2016 quotation at Meneses' request, to give Directed one last chance to get the DIR8000 project up and running. Meneses said to Lee that Hanhwa Aus was not yet ready to supply IAL directly with the HAU8000, and that the provision of the quotation could help Directed to secure the chance to supply DIR8000 to IAL and in the result ensure that Directed would finally pay Hanhwa Korea for the tooling for the DIR8000. But the evidence suggests that since no later than September 2016 the Hanhwa parties, Meneses and Mills had resolved to seek to supply the SuperDAVE directly to IAL to the exclusion of Directed and that the Hanhwa parties had no intention of continuing to seek to supply the SuperDAVE to Directed and that these quotations were designed to ensure that Directed's offering to IAL would be uncompetitive and fail given the price at which the Hanhwa parties had agreed to supply the SuperDAVE to IAL directly, being AUD 1,300 per unit. 2094 The MFL attached to Lee's email of 18 November 2016 noted the use of the Android OS Automotive 5.0 version CPU 1.4 GHz Octa core chip which is the Nexcell Android CPU. The navigation software was NavNGo/HERE Maps and the MFL identified telematics implementation via the RS485. Lee said that the features as described in the MFL of 18 November 2016 were conceptual only, in that the design and engineering work necessary to implement the features as described had not yet been undertaken. Directed challenged this. 2095 On the same day, Lee also created a draft hypothetical invoice for the HAU8000 from Hanhwa Aus to IAL in the amount of USD 660 excluding accessories because he said he wanted to show Meneses the price at which the product could be offered by Hanhwa Aus to IAL direct. Directed disputes his motivation. He also created an MFL for the HAU8000 by essentially cutting and pasting the MFL he had sent to Meneses for the DIR8000. He says that he did not make any substantial changes to the MFL beyond the title and replacing the reference to Directed with Hanhwa. The MFLs created by Lee on 18 November 2016, whether for the HAU8000 or the DIR8000, showed the image of the rendering for the screen without the gesture sensor shown in later versions of the rendering for the MFL for the HAU8000. 2096 On 21 November 2016, Directed prepared a detailed cost analysis of the DIR8000. The cost analysis was predicated on a 30% gross profit margin and specified a sale price from Directed to IAL of AUD 1,490. On the same day Meneses forwarded a copy of that price analysis to Siolis and Tselepis. The email attached up-to-date costs to IAL for the SuperDAVE project and stated "As per your request the GP is back up to 30%". 2097 Further, on that day Meneses forwarded the SuperDAVE MFL attachment on to Shanks. Meneses' email enquired about a price increase. Meneses' email had apparently been sent in response to an email from Humphries of 15 November 2016, which referenced a launch timing likely to be in July 2017 for the F Series truck and October 2017 for the M and N Series. 2098 On 29 November 2016, YS Lee emailed Meneses, advising that Meneses' commission in the amounts set out would be paid the next day. I note that YS Lee acknowledged that AUD 1,333,738 was paid between December 2009 and 20 November 2017, including three payments made by Hanhwa Aus in September to November 2017. 2099 On 29 November 2016, Mills emailed Lee and Meneses concerning a Hanhwa Aus "to do" list as I have previously said. 2100 In late November 2016, Lee emailed the Hanhwa Korea production staff advising of field test to be conducted of the HAU8000 in December. He informed his staff that this would be the last sample so they needed to prepare carefully for this. Among those that participated in the field test was Palone, who was an employee of Directed at the time. Palone did not recall specifically the field test taking place. Palone said that he was not paid for any assistance he provided the Hanhwa parties at this time. Of course at the time Palone was an employee of Directed. 2101 On 8 December 2016, Meneses provided to Shanks the Directed quotations for the DIR8000 and its accessories based on the November 2016 cost analysis. 2102 In late 2016, Lee had a conversation with Allen Hartley concerning Quantam and Hanhwa. Lee said that there were a range of radios for a new model vehicle being imported that Directed did not want to pay the tooling on, that Hanhwa was going to distribute it directly and that there may be a telematics requirement if the manufacturer requested it. Lee gave evidence that he wanted Quantam to do some work on it so that he had something ready to show the manufacturer by January 2017. Directed contends that the evidence reveals that Lee wanted to demonstrate the HAU8000, which he referred to as the SuperDAVE, installed in an Isuzu vehicle and connected to the Gridtraq parties' CPU which he required for a demonstration to IAL in January 2017 and that he wanted the Gridtraq parties to facilitate and assist in that regard. 2103 Following this, in December 2016, Allen Hartley and Dylan Hartley worked together on a document that set out various opportunities for Quantam to work with Hanhwa on. The opportunities identified included opportunities to work with Hanhwa on a new Hanhwa radio that was being presented to IAL in relation to their forthcoming N Series vehicles. 2104 In early 2017, Meneses presented the D-MAX unit to an Isuzu dealer. The dealer said that they could not purchase the product until it had been approved by ICL. Lee said that no approach had then been made to Japan. Further, no contract was entered into. 2105 On 3 January 2017, Oh emailed Lee and copied various others from Hanhwa Korea with certain agenda items on the Australian projects. In the case of the HAU8000, the items listed were field test open issues and reference to a sample schedule review request for the HAU8000, the application of a new connector layout and request for a review of expected mould making costs due to the addition of new functions and on 5 January 2017. Lee emailed the Hanhwa Korea design team noting that new design rendering files had been received as a result of the addition of a motion recognition function to the HAU8000 and a USB charging function to the wireless charger model. 2106 On 9 January 2017, Dylan Hartley emailed Oh in response to her email of 18 November 2016 asking for assistance with the firmware for the safety screen and the Isuzu radio. On 10 January 2017, Oh replied "…Could you please give me more detailed information about interface? (You want to compare with ISUZU & RA7000 Safety screen's telematics interface or ..?) (If you asked regarding telematics interface, RA7000 and ISUZU multimedia system is totally different.)". 2107 On 25 January 2017, Hanhwa Korea's engineers meeting minutes record that they were currently awaiting approval from the head office of Isuzu Utes in Japan for the new HAU8100 project. The minutes also refer separately to the DIR6160 then being sold by Hanhwa Korea to Directed and on-supplied to Mercedes. It was noted that currently the buyer of DIR6160 is Directed and that the trim plate for the unit is supplied separately. It was noted that later it would change and it would start being directly supplied to Mercedes. The item concluded that as the process would proceed gradually, the current DIR6160 and TPO12 model would continue to be supplied to Directed until further notice. The minutes also recorded work on a new Hino project known as the HAU6400 but noted that that project would be put on hold. In the meantime the current DIR6110 model would continue to be mass produced and shipped. Now other evidence shows that in early 2017 Hino wanted an upgraded AV unit with a bigger screen and that Meneses and Lee sought to exploit that opportunity through Hanhwa Aus. Lee acknowledged there was a plan to supply it directly to Hino to the exclusion of Directed with a product called the HAU6400 and it was expected that supply would commence in early 2018. Lee acknowledged that the opportunity to supply this unit, initially named the HAU6400, was overtaken by the proposal to supply the HAU8200 which was the HAU8000 with a flip down screen. 2108 On 31 January 2017, Meneses using a Hanhwa Aus email address emailed Lee. The email read "Hi, I need the company "LETTER Head" to start the letters of offer to new staff.". He then sent out a proposed letter to Palone offering a salary package at Hanhwa Aus. 2109 On 2 February 2017, a letter of offer was prepared for Palone on the terms set out in Meneses' email of 31 January 2017. Lee agreed that Meneses was involved in drafting the documents to make a letter of offer to Palone in co-operation with Lee. 2110 On 2 February 2017, Madour of Mercedes telephoned Dane of Directed about a new opportunity and followed up with an email. 2111 Dane emailed Meneses telling him that Madour was looking for a stand-alone navigation unit for Mercedes Sprinter buses. The email from Madour advised that Mercedes was looking for an initial 12 units. 2112 On 3 February 2017, Meneses forwarded the relevant email chain to Lee. Internal Hanhwa emails of 3 February 2017 proposed two conceptual models, one of which involved adding a navigation function to the RA7000 or safety screen product. The email also referred to a proposal to replace the existing DIR6160 product with a new product to be developed which would be supplied to the final customer directly. 2113 Lee said that there was never any intention to supply the safety screen otherwise than through Directed. 2114 In February 2017, Lee told Allen Hartley that there might be an opportunity for Hanhwa Korea to supply the safety screen to Directed for on supply. Allen Hartley said that he would not have a problem supplying the screen to Directed through the Hanhwa distribution channel provided the joint venture retained its portion of the profit margin. But Directed says that there is no contemporaneous evidence to support the assertion that this attempt to supply a product to meet the Mercedes Sprinter opportunity was via the supply of the RA7000 AV unit to Directed. Directed says that internal emails from Oh to the Hanhwa Korea group reflect that Hanhwa Aus intended to supply the RA7000 AV unit directly to Mercedes. 2115 On 8 February 2017, an employment agreement was prepared for Hanhwa Aus and Mills which was in substantially the same terms as the Pieries employment agreement and the document properties apparently record that the document was created by Lee on 8 February 2017. Lee probably received a copy of the Pieries employment agreement. Lee said that he did not carefully read the employment agreement when he created the Mills version of the Hanhwa Aus agreement, but this is a problematic assertion. Mills signed a letter of offer dated 9 February 2017. 2116 Lee said that he did not read the employment agreement and denied that he knew that Meneses, Mills, Summers and Palone were all employed by Directed in accordance with the same terms of the employment agreement to which Pieries was a party with Directed Electronics Australia Pty Ltd. 2117 Lee said he did not become aware of the terms of the employment agreements of Meneses and Mills with Directed until after an earlier version of the statement of claim was served, and that he was unaware of the existence of restraint provisions in them. But the evidence reveals that Lee substantially amended the standard Directed employment agreement before providing it to Hanhwa Aus' employment lawyers for their input. This highlights that Lee was aware of the standard terms of Directed's employment agreements. 2118 On 15 February 2017, Mohos from Polstar emailed Oh and copied Meneses. Mohos' email proposed an introduction of navigation services from Polstar. Mohos subsequently met with Meneses and Lee in Korea. Mohos had previously worked for the navigation supplier NavNGo, which had provided navigation software for the DIR6200. Lee said that the pitch in February 2017 related to navigation services for the existing DIR6200 unit and amounted to an introduction of Polstar navigation software generally. But the contemporaneous evidence suggests that by February 2017 Meneses and Lee were seeking navigation software for the HAU8000 in order that it could supply the unit directly to IAL and that the discussions with Polstar were in order to facilitate that end. The emails exchanged between Mohos and Lee in April 2017 make clear that Meneses, Lee and Mills did not want Directed to find out about their discussions in this respect. Siolis confirmed that Polstar pitched rival navigation services to Directed in place of the existing navigation provider services provided by NavNGo. 2119 On 27 February 2017, Sue Mills emailed Lee asking whether she could catch up for a meeting to discuss next steps and a plan for filming. She asked whether early the following week would help. Lee responded by saying he wanted Meneses, Palone and Mills at the meeting as well. But Wednesday was not a good day for Mills as it was his last day at Directed. Mills indicated that he would be training people and they will be watching what he would do. Lee proposed Tuesday or Thursday and also asked about Meneses' availability. It is unclear whether the meeting occurred. 2120 On 2 March 2017, Lee received an email from Shin which attached a proposed field test agenda for the HAU8000. There was reference to the last field test. 2121 On 12 March 2017, Hanhwa Korea produced a tooling list for a new Hino 8 inch model. The tooling amount was USD 218,000. Lee said that this document was not a final design or a final quotation but was prepared at a development stage to see whether he could clear it through finance at Hanhwa Korea as well as design; he said it was just a preparation stage document. Lee agreed that the new Hino unit was something that he contemplated providing directly to Hino. Hanhwa Korea's designer Kim produced renderings for such a unit. 2122 It is convenient at this point to note that between April 2017 and September 2017 design renderings for the HAU8200 were prepared for the potential supply of an AV unit based on the HAU8000 for supply by Hanhwa direct to IAL. Apparently it was planned to show the renderings to an IAL representative at the Brisbane Truck Show in May 2017. Lee said that he told Petrovski of Hino at the Brisbane Truck Show in May 2017 of Hanhwa Aus' establishment. Petrovski said he wanted to explore the opportunity for Hino to be supplied directly by Hanhwa. At the truck show Lee showed Petrovski the rendering for the proposed new unit on his phone. 2123 It is also convenient to note at this point that the Hanhwa Korea work report for the week of 3 July 2017 to 7 July 2017 included reference to the HAU8200 unit for Hino and reported on the model name being finalised changing it from HAU6400 to HAU8200. Lee said the proposed HAU8200 was not to be based on the HAU8000 although it had the same CPU. But Lee admitted that the HAU8200 was going to be designed by reference to the HAU8000 with changes to be added or deleted. Lee acknowledged in an email that the HAU8200 was very similar to the HAU8000 unit. Hanhwa Aus planned for the Hino product to be a 2018 project. But Hino did not choose the Hanhwa product and instead chose a product from Directed. Let me return to the chronology. 2124 On 14 March 2017, Mills commenced employment with Hanhwa Aus. 2125 On 31 March 2017, Meneses emailed Lee seeking reimbursement for expenses incurred including embroidery on men's shirts, apparently to be worn by employees of Hanhwa Aus. 2126 Further, on 31 March 2017, Mills from his Hanhwa Aus email address emailed Min Sungmin Bin from Hanhwa Korea. The email chain recorded that on 30 March 2017 Hanhwa Korea had submitted a sample of the HAU8000 to Australia. 2127 Another unit supplied by Hanhwa Korea to Directed was the DIR6160, which was supplied by Directed to Mercedes for installation in its trucks. 2128 In about March 2017, Summers informed Shin that the GUI of the DIR6160 required changes in relation to its camera operation. In order to incorporate those changes Shin needed access to a Mercedes Actros truck in order that he could obtain the CAN Bus data from the vehicle. But Shin admitted that the test work he undertook sought to check that the RA7000 telematics unit/CPU worked with a Mercedes AV unit and that work was undertaken connecting an RA7000 telematics unit to a DIR6160 AV unit. As the work necessary to make the changes involved software engineering, Hanhwa Korea sent over the software engineer Yeonoh Song to Australia to assist Shin. Whilst Song was in Australia he attended Directed's premises with Summers and Shin and extracted the CAN Bus data from the Mercedes Actros truck. 2129 Further, on 31 March 2017, Oh emailed Dylan Hartley circulating minutes referring to a protocol datasheet and referring to "RA7000: RS232 Communication … ISUZU DAVE Unit and New ISUZU unit: RS485 Communication.". I have set out further detail in the general chronology earlier in my reasons. On reading this, Hartley realised that the difficulties that had been encountered with the CPU were due to the fact that the safety screen and the CPU used the RS232 serial interface whereas the Isuzu radio used the RS485 serial interface. As a result of the different serial interface Hartley and Davidson realised that the specification, also referred to as the Directed specification, attached to the email of 18 November 2016 was of no use in getting the CPU to integrate with the safety screen because the Gridtraq specification could only be used for the TM01 telematics unit and Isuzu radio screen, both of which used the RS485 serial interface whereas the CPU and safety screen both used the RS232 serial interface. Directed challenges this version of events. I will return to this topic later. 2130 On 3 April 2017, Song emailed various members of the Hanhwa design and engineering team, copying in Oh. The email reported on the purpose of the business trip to Australia. The email records that the work carried out included checking the CAN Bus data on the Mercedes truck in which the DIR6160 was to be applied, checking CAN Bus data from the Mercedes van to which the RA7000 would be applied and checking CAN Bus data from the Isuzu truck. 2131 On 5 April 2017, Lee emailed Ruth Frenzel, an employment lawyer, and attached what was said to be employment agreements between all Hanhwa staff. The attachments included an employment agreement for Mills as well as for Sangyou Kim, Shin and others. Lee said he had not read the employment agreements before he emailed them to Frenzel but this does not seem accurate. 2132 On 6 April 2017, Dylan Hartley and Oh exchanged further emails about the connection issues between the safety screen and CPU. 2133 On 9 April 2017, Lee emailed Meneses with the subject matter "MB new rendering" attaching rendering for a new Mercedes trim plate. Meneses responded on the same day saying "Fucking great… Also don't forget our version...". Lee denied that the reference to our version was referring to an AV unit which Hanhwa was developing for proposed supplied to Mercedes to replace the DIR6160. I note that Directed says that based on the totality of the evidence I should find that the Hanhwa parties and Meneses attempted to supply an AV unit to Mercedes to replace Directed's DIR6160 which was then overtaken by the successful supply by Hanhwa Aus of the LM19M to replace the DIR6160. 2134 On 11 April 2017, Oh emailed Bin from Hanhwa Korea in relation to the Directed forecasting information. The email referred to Directed's forecast purchases for the April 2017 period and read: In relation to FORECAST on the Australian market for the April-August 2017 period, I am sending you a file containing up-to-date information. Currently, we are requesting Directed's logistics person to share with us inventory quantity of Multimedia radio units and Forecast information, but no exact data has been received yet. This is not the latest data, however our analysis based on information held by Craig Mills who used to work for Directed, suggests that we should start shipping DIR6110 from late July or early August to prevent Shortage issues. 2135 Hanhwa Korea was making use of the forecast information for the purposes of ensuring that it had adequate supply to meet Directed's supply needs with respect to the DIR6110. The attached document dated 3 April 2017 originated from Mills who was employed by Hanhwa Aus from 14 March 2017. Oh was by this stage a resident in Australia and working for Hanhwa Aus. But Directed did not know of the existence of Hanhwa Aus. Hanhwa Aus did not supply Directed with products. Directed's case is that this information was being exchanged in the context of Mills, Meneses and Lee making their decisions as to when to make their move to pitch to move supply of products from Directed to Hanhwa Aus. Even if current stock information in the document was used by Hanhwa Korea for the purposes of Directed's business, it was a document that should not have been in the possession of Hanhwa Korea or Hanhwa Aus and it contained a raft of other information that Hanhwa Korea should not have been privy to. I agree. 2136 On 12 April 2017, Meneses sent an email to Mills attaching a document produced from one of Directed's systems headed "recommendation PO request (12-4-2017 as at Jul-2017)". Proghios had instituted such a system after he took over Mills' job at Directed. The document recorded purchase orders to be placed on Hanhwa Korea and Leemen. Now Floudas' and Proghios' evidence was that they never provided stock lists to Hanhwa Korea by way of providing forecasts for future ordering of products. Proghios deposed that when he took over from Mills that he created an automated process for providing such forecasts to Hanhwa Korea. 2137 On 12 April 2017, Meneses emailed Lee, asking him to chase up his commission whilst Lee was in Korea. Lee responded saying: No more Korea mate. It has to be under Hanhwa Aus and will discuss later. Maybe we need the contract between Hanhwa Aus and OE solution like sales commission?? Talk soon. 2138 On 13 April 2017, Mills emailed Meneses, and attached the recommended purchase orders. The Mills' email said that "we will take his orders" but then set out certain recommendations as to the subject matter of the proposed orders, such as that parts had been superseded or that Directed should alter its proposed purchase orders. 2139 On 14 April 2017 the minutes of a Hanhwa Korean team record that the HAU8000 model was to be applied on the Isuzu N/F Series whilst the DIR6200 model would be applied on the GIGA vehicle. This appears to be a minutes of a meeting called by the Business Support Team and that the people in attendance were from the Business Support Team, Purchasing Team, the Research Centre and Lee. Further, items 2 to 9 appear to make clear that Hanhwa Aus has already had discussions with IAL as to which of the Isuzu units the HAU8000 would be installed in as opposed to the DIR6200 being applied to the GIGA vehicle and it appears Hanhwa Aus had been advised of the initial quantities that would be required and the fact the a purchase order would be issued "after receiving the contract with ISUZU". 2140 On 20 April 2017, Oh emailed Frank Tseng from Polstar advising that they had sent a new multimedia radio sample to him for inter-alia matching between the Polstar Navigation and the HAU8000 Unit. She requested the provision of a demo navigation program or file for testing by Hanhwa's R&D Centre. 2141 On 20 April 2017, Lee emailed the Hanhwa Korea engineering team requesting a specification sheet for the HAU8000. Back from the Hanhwa Korea sales support team responded with a comparative feature list and table between the HAU8000 and the DIR8000. As the email noted, the DIR8000 document was based on the research centre's document first written in November 2014 and then amended in July 2015. It seems clear that there was reference to a request from IAL for that information. 2142 On 24 April 2017, Mohos emailed Meneses and Summers advising that he had received new navigation software releases on a weekly basis, and that he would give Meneses and Summers a demonstration of the new software. 2143 On 27 April 2017, Mills emailed Lee and told him that it appeared that Mohos still believed that Hanhwa was linked with Directed. Directed contends that the email chain reveals that Mohos understood that the discussions regarding the provision of Polstar software was for the benefit of supply in conjunction with the DIR8000 intended to be supplied by Directed to IAL and that he had not been made aware or he did not understand that Meneses, Mills, Lee and the Hanhwa parties were intending to supply the DIR8000 directly to IAL to the exclusion of Directed. He suggested that Lee should also make an offer to buy navigation services from NavNGo as well as Polstar because the pricing from Polstar appeared not to be a great saving noting that Polstar was seeking to get into the Australian market. Meneses informed Lee and Mills concerning the last costing from NavNGo. Lee did not approach NavNGo and instead used the navigation software from Polstar. Directed says that Lee knew that NavNGo would not have agreed to supply the Hanhwa parties with navigation software given their commercial relationship with Directed. 2144 On 28 April 2017, Oh, who had moved from Korea to Hanhwa Australia at the end of March 2017, emailed Tseng. The email from Oh recorded "We are pleased to inform you that we have sent the new multimedia radio sample to you for map porting and matching between Polstar navigation and our unit.". She set out details of the consignment in respect of the new 8-inch multimedia unit and advised that the estimated time of arrival at Polstar would be 24 April 2017. She attached a copy of the HAU8000 pin configuration with harness drawing and asked whether the demonstration navigation program could be provided to Hanhwa's R & D Centre. 2145 On 28 April 2017, Oh emailed Back concerning the HAU8000 drawing with dimension information. She requested that the drawing data for the main unit and dimension information be passed on as soon as possible, noting the need for PPAP data for IAL. She sent the reference file for the DIR6200 and asked them to refer to the attachment and shared data. The response came back noting that the drawings had been sent. She replied again advising that they had not got approval regarding the label parts and then enclosed a label headed Model:HAU8000 which had various features in it and a tick noting that it had been made in Korea. The copy of the document sent had the Directed address on it. It was requested that the Directed logo be removed. 2146 In May 2017, Slade an employee of Directed was requested by Summers to undertake a clean-up of Directed's K drive on its computer system. The K drive on Directed's computer system was where all of Directed's documents relating to finance, marketing, sales, service, production and testing materials matters were stored. Such documents included some software, CAD and other line drawings, pricing information in relation to the purchase and sale of products, owner and user manuals, installation guides, kit diagrams, photos, MFLs, customer contacts, part numbers, forecasts, brochures and promotional material and spreadsheets including PPAP documentation such as the DIR6200 PPAP. Access to Directed's K drive was password protected and limited to those employees engaged in sales, service, engineering and production. 2147 In May 2017, Meneses instructed Summers to provide him with a complete copy of everything on the K drive, which Summers did. Slade said that at this point in time the K drive was in a mess. 2148 On 1 May 2017, Oh emailed Mills enclosing up to date line drawings for the HAU8000 and advising that the S/N and C Tick number had been removed from the drawing. 2149 On 2 May 2017, Oh emailed Mills saying that she had got the draft version of the Owner Manual data for the HAU8000 from the Korean office and gave him directions as to how to access it via Dropbox. 2150 On 4 May 2017, Shanks emailed Humphries with the SuperDAVE MFL as of November 2016 advising that the price from Directed was AUD 1490 which included tooling amortisation over 21,000 units @ AUD 20 per unit. He noted that the cost of the current unit was AUD 986. In the email in relation to cost he said: I think the best way to present this is to target the new audio at say $1100.00 (or $1150.00 if you can stretch it) and we have to meet that and sell the benefits over the current. The new audio will never match the current price who ever supplies it. Attached is the MFL from Nov 2016, I suggest this is outdated as it assumes Directed Telematics interface, also the Digital switching people are asking for inputs??? 2151 Now the heading of the email is "Re: Directed / JM Multimedia Proposal for VC43" indicating that IAL had received two proposals, one from Directed and one from Meneses. This is confirmed by the comment "The new audio will never match the current price who ever supplies it" and the comment that the Directed MFL from November 2016 was "outdated as it assumes Directed Telematics interface". If Directed was still contemplated by IAL as to being the likely supplier the MFL would not have been out of date. This email supports Directed's contention that Meneses pitched the supply of the SuperDAVE by Hanhwa directly to IAL in November 2016 and IAL had agreed that it could supply the unit at AUD 1,300 if it submitted working samples of it and relevant accessories to the satisfaction of IAL. If there had not been such discussions and agreement then Shanks would have simply provided Humphries with Directed's MFL and its cost breakdown sheets which had been provided by Meneses to Shanks on 8 December 2016. Further, there would have been no need for Humphries to send the email as he did to Shanks on 4 May 2017 advising "I have a PPC tomorrow and no details on the multimedia system plus steering wheel controls proposal. Can you forward to me to enable me to knock up the presentation tonight please". It is apparent that he needed details on the Meneses/Hanhwa multimedia system proposal for the PPC meeting. 2152 On 5 May 2017, at a meeting of Hanhwa Aus it was noted that every department needed to prepare a PPAP for the HAU8000 by 26 May 2017. 2153 On 9 May 2017, Back emailed Oh and Lee at Hanhwa Aus. The email referenced an earlier email from Oh which included under the sub-heading for Directed certain requests from Directed which included reference to the DIR6100 TFT film. Additionally, it referred to a new Mercedes unit and a trim plate or mock up sample which was needed to be presented at the Brisbane Truck Show. Under the heading "Hanhwa Aus Project" there was reference to software for the Mercedes project. Lee said that the reference to this Mercedes project was a reference to the Mercedes Vito which was separate to the Mercedes truck which was the subject of the supply of the DIR6160 unit. I agree with Directed that the evidence is unclear as to what was being referred to. 2154 The Hanhwa Korea work report for the week of 15 to 19 May 2017 showed work from the design team on the HAU8000 and the Mercedes Sprinter bus and from the circuit design team which worked on the HAU8000 model including main and power PCB artwork modification and preparation of the PPAP material. 2155 In the case of the RA7000, the circuit design team worked on key PCB artwork modification. The software team worked on the HAU8000 and also on software for the HAU8100 as well as the DIR6160. The software team were also working on the RA7000. The instrumental design team undertook some work on the RA7000 and on the HAU8000 including PPAP material and harness layout preparation. 2156 On 16 May 2017, Oh emailed Mills, copying in Lee, Meneses and Shin, noting that each department in Hanhwa Korea had been preparing and gathering data for the HAU8000 PPAP, attaching a list of queries from the Hanhwa Korea end and noting a need to check whether some other documents were created by IAL or Directed. Oh clarified in cross-examination that the reference to Directed was a concern about whether or not the template, as distinct from the contents, belonged to Directed. The templates came originally from TechAudio. But Directed disputes Oh's evidence which was contradicted by the contemporaneous documents which reveal that the Hanhwa parties referenced all of the documents in the DIR6200 PPAP and made minor changes, notwithstanding that Mills made clear to Oh and Bin that many of the documents had been created by Directed. I agree with Directed's position. Lee also said that the work involved in preparing the PPAP was significant as it involved adding in all the details of the manufacturing process. Directed also challenges this characterisation. 2157 On 17 May 2017, Mills emailed Oh and Lee concerning the PPAP. The email read "Hi Irene, Production Part Approval Process (PPAP). We should follow these sections. My PPAP for 92075176 (DIR6200) may only be 80% correct and also may be too much information (e.g. troubleshooting guide should be smaller etc)". Mills gave Oh a list of websites in respect of which information for the preparation of the PPAP was obtainable. But the Hanhwa parties did not reference those websites in order to create those documents in the PPAP for the HAU8000. Instead they referenced the documents in the DIR6200 PPAP. Further, no evidence was led by the Hanhwa parties to the effect that they created the PPAP for the HAU8000 by reference to the websites that Mills has referred to. 2158 On 18 May 2017, Shin emailed the Hanhwa engineers advising that they would proceed with current DIR6160 model number without any temporary change. This was in reference to a suggestion from Kang to divide the testing codes into two codes; the DIR6160 and the HAU6160. Lee said that this all related to development work that was being conducted for a new blind spot camera for the DIR6160. Lee said that he rejected any move to create a development code bearing the separate designation HAU6160. He denied that Hanhwa was working on a new version to supply direct to Mercedes instead of through Directed. 2159 On 19 May 2017, Mills emailed Oh concerning the PPAP update document and attached an updated PPAP. The document listed a reference page for the DIR6200 PPAP and included a column headed "Remarks". It referred to various matters concerning various items. In the case of each of those items there was reference to requests from Korea regarding the format as to how the format should be changed. In the case of the fitting instructions section, the question was "Is this format made by Isuzu or Directed (should we keep the current format or change)". The response came back that it was a Directed form and that there was a need to change the layout so it would look different. 2160 On 22 May 2017, M S Kim of Hanhwa Korea prepared an advance product quality plan for the HAU8000. The document records that there had been a design review for the product known then as the DIR8000 which ran from August 2015 until August 2016. The document also records the product as being referenced by the name of HAU8000 after that date. It records that in October/November 2016 the specifications for the product changed, that in January and February 2017 various product parts were designed, that there was a preliminary process flow chart in February 2017, that drawings for the production of moulds were made in January 2017, and that production was planned to commence in February to April 2017 with a contemplated trial production plan in June 2017 and contemplated mass production in July 2017. Lee agreed that this document showed that the development of the DIR8000 started in May 2015, continued through until the end of August 2016 and then the HAU8000 picked up from September 2016 on that development work and continued through until August 2017. This schedule and contemplated actions also supports Directed's contention that a deal was made with IAL in November 2016 that if Hanhwa could demonstrate a working sample with accessories it could have the contract to supply the SuperDAVE to IAL with supply commencing in July 2017. 2161 On 24 May 2017, Oh and Lee engaged in a skype chat conversation. They discussed two separate topics, one of which related to the need to add text for the HAU8000 and the other which related to linkage in relation to the RA7000 telematics compatibility. Lee said that the topics were separate with Lee explaining that the HAU8000 involved use of a RS485 telecommunications chip, whilst the RA7000 involved a RS232 chip. Lee said that the reference to the RA7000 related to its use as an aftermarket product for the Mercedes Vito. But Oh was seeking instructions as to the user interface of the HAU8000 and what should be revealed when not connected to the RA7000 telematics unit in an Isuzu truck. 2162 On 27 May 2017, Lee attended the Brisbane Truck Show. Among the people he spoke to at the Truck Show was Petrovski from Hino. Petrovski said to Lee that he wanted to explore the opportunity of Hanhwa Aus supplying IAL directly. Lee also approached Hara from ICL. It would seem that this meeting followed the wrongful conduct of Meneses forwarding to Lee his earlier email communications with ICL representatives and Meneses' and Lee's efforts to exploit the ICL opportunity for Hanhwa to the exclusion of Directed. Also at the Brisbane Truck Show, Lee had a discussion with Shanks and discussed with him supplying the HAU8000 direct to IAL. 2163 On 29 May 2017, Lee emailed Hara. He referred to a discussion that they had had at the IAL booth at the Brisbane Truck Show the previous Friday. Lee requested whether he could have a meeting at the ICL office in June. Lee accepted that Hara was one of the people on the original email string which started in 2015 but said that he did not know this at the time when he emailed him in May 2017. But it would seem that Hara was the principal person who had dealings with Meneses since 2015 in relation to seeking to exploit the ICL opportunity and Meneses and Lee took actions to exploit that relationship and opportunity for the benefit of the Hanhwa parties to the exclusion of Directed from the time that Meneses forwarded the email containing his previous dealings to Lee on 14 October 2016. This is borne out by the email sent out on 7 June 2017 in which Lee informed Hara that he had obtained clearance from IAL to have a meeting with ICL to discuss the supply of Isuzu AV units to ICL. Lee's evidence was that this was a lie and that in fact it was Meneses that had obtained that clearance from IAL. 2164 In early June 2017, Mohos from Polstar and Summers undertook a 3 hour drive evaluating the Polstar navigation software, during which Summers suggested changes to the software to make it more suitable for Directed's customers. Mohos circulated an email after the drive which he referenced as "Test Drive with Directed Meeting Minutes". The information also included information required to enable the Polstar software being developed for use with the HAU8000, to be suitable for Australian roads, conditions and legislation and included detailed feedback on the Polstar software. Further, specific changes were recommended in order to make it suitable for IAL. It is clear that this work was for the Polstar software for use with the HAU8000 as at this date Directed had not requested Polstar to do any development work on navigation software for its existing DIR6200 or any of its other units and that Mohos acknowledged that he must not discuss it with anybody else at Directed other than Meneses. 2165 On 2 June 2017, Kyung Ho Cho from the Hanhwa Korea software team emailed Oh and Lee with reference to the navigation devices to be utilised on the HAU8000. The email chain referred to earlier correspondence which had passed between Polstar and representatives of Hanhwa Aus and Hanhwa Korea, including Meneses and Mills at their Hanhwa email addresses, relating to the proposed navigation system in the period from 4 May 2017 to 2 June 2017. 2166 On 8 June 2017, Brian Kuo from Polstar emailed Lee in relation to the proposed price at which Polstar would provide the navigation product to Hanhwa Aus. Lee requested an updated price and asked whether there was any minimum order quantity. Mills emailed Lee and asked whether he had considered undercutting the navigation component provided by Directed for the Isuzu 6200 navigation business, advising that Hanhwa Aus sell cheaper navigation than Directed and that it might be possible to win the 6200 product and thereby cut out Directed. Lee said that he did not want to do that. Mills' email also noted that it would take many months before Directed questioned why IAL did not order navigation components from Directed anymore. 2167 In June 2017, Lee met with ICL in Japan. Following the meeting, on 21 June 2017 Hanhwa Korea commenced the design of an audio unit for potential supply to ICL. The Hanhwa parties say that the newly designed unit, the HAU1024, was substantially different to the DIR1024 supplied by Hanhwa Korea to Directed. But in my view it can be inferred that the HAU1024 was derived from the DIR1024. Further, Lee admitted that the Hanhwa parties plan was to also supply ICL with the HAU8000 with a different size screen and changes to the GUI and DRLs, the pricing of which was discussed between Meneses and Lee. Neither Hanhwa Korea nor Hanhwa Aus have supplied the product to ICL. 2168 On 21 June 2017, Oh emailed Park in relation to the HAU8000. She said that prior to the first mass production, they were preparing for the presentation and product demonstration to their end user customer. Lee emailed the engineers later that day asking them whether he could show the sample with all the functions the next day. He asked them if they were confident with the latest software. The response came back from Park that they would give their best effort to ensure that everything went smoothly. 2169 On 22 June 2017, Meneses emailed Lee and enclosed a copy of the email from YS Lee of 29 November 2016. The email requested commission payments for January to June 2017. 2170 On the same day, Lee emailed Meneses. The email appears to set out a proposed package for Meneses at Hanhwa Aus and advances a number of alternatives, as well as referencing Meneses' commission for January to June 2017. Lee later emailed Meneses reminding him that he would also own 40% of the new company. The 40% shareholding never progressed. Lee said that he no longer intended to issue the shares to Meneses. I should note here that I have rejected Directed's case that 40% of the shares are held on trust for Meneses, and Directed's derivative claim as to this. 2171 On 28 June 2017, Lee emailed Shanks from IAL, which was copied additionally to the email address jm@hanhwa.com.au. The email read: As per your conversation with Johnny on the telephone today, I would like to see if it would be possible to meet you on Friday the 30th of June anytime that would fit in your schedule. I would like to meet you as a meeting specially the introducing our company and the Super DAVE unit with the all features/cost and accessories. Ian, if you could review your busy schedule and let me know if you would be able to meet with us on Friday anytime it would be appreciated. Look forward to seeing you soon. 2172 On 30 June 2017 the IAL meeting occurred at which Lee gave a presentation. I have dealt with this elsewhere. Five representatives from IAL and Lee and Meneses attended the meeting, as recorded in the IAL minutes of the meeting. IAL's CEO, Taylor, asked Meneses what his role was with Hanhwa. In response Meneses said that he was leaving Directed and would be moving to Hanhwa Aus from 1 August 2017. Lee said that he discussed Hanhwa Aus' proposed price for the HAU8000 but denied that there was discussion about the Directed pitched price for the DIR8000. IAL's minutes record otherwise. 2173 Following the meeting between Lee and IAL on 30 June 2017, Lee emailed Shanks and enclosed a copy of the Hanhwa Aus cost breakdown for the unit. The enclosed quotation sheet was headed Hanhwa Aus and provided for a head unit price for the HAU8000 of AUD 1,121.29. The email thanked Shanks for making time available and advised that Mills would drop off the USB stick with the MFL and the timing plan to his office on 7 July 2017. 2174 Following the meeting with IAL on 30 June 2017, Oh emailed Hanhwa Korea's principal engineer Sang-Ik Lee and reported on the meeting advising that they had met with IAL for two hours, consisting of one hour for product presentation, specification and price discussions and one hour for product demonstration. The email noted that the initial discussion took longer than expected and that they were not able to perform demonstrations using the actual product and samples. She reported that the HAU8000 received favourable reviews with the client making suggestions and participating in the discussion. She advised that they were arranging another meeting to perform demonstrations using more refined samples. But Oh noted that Hanhwa would seek to rearrange another meeting as soon as possible to perform the demonstrations using more refined samples. However the evidence reveals that no such further presentation was necessary and 19 days later the IAL PPC gave formal approval to Hanhwa supplying the SuperDAVE to IAL. 2175 On 6 July 2017, Summers emailed Shin attaching the messages that they could output from their Gateway kit. Summers' evidence is that at Shin's request he sent to him Directed's CAN Bus data for Isuzu N, F, FX and FY series trucks. This had nothing to do with any work Hanhwa Korea employees may have been doing on a Mercedes truck at Directed's premises. 2176 The Hanhwa Korea engineering team meeting minutes for early July 2017 recount the progress of the development of the HAU1024 for ICL. One item related to circuit design and contemplated a 4 month process starting with the development of software, concluding with making the approved sample by the end of September after the conduct of a field test. Lee described the development of the HAU1024 as a new project. But the minutes note that the HAU1024 was to have the "Same function as the existing DIR1024, DAB+ function added" and to "Maintain the front design concept of DIR1024 as much as possible" and the "Design to be built based on the drawing of DIR1024 LCD" and in relation to device design they were to look at ways to reduce costs on moulds by using existing button moulds and by the end of July they would create a first demo oriented circuit board using a mock up or the DIR1024. 2177 On 7 July 2017, Lee emailed Shanks attaching the MFL for the HAU8000. A further version was provided on 4 August 2017. Humphries responded to Lee and enthusiastically thanked him for his efforts to date concerning the HAU8000 and its accessories. 2178 On 11 July 2017, Mills emailed Lee and Oh from Hanhwa Aus attaching the Hanhwa Audio unit cost breakdown quotations for the HAU8000 and for accessory parts. The email advised that mark ups had been increased as requested. The email then referred to one of the accessories, an 8m camera kit, stating that the camera's price was the same as Directed's price to IAL, but that the advantage concerned the complete single camera digital reverse kit sell price. The email then set out the Directed cost and Directed sale price, which equated to a 46% mark up or 31.5% gross profit, before noting that they could sell a similar kit for the HAU8000, setting out the cost and the sale price, which equated to a 42% mark up or 30% gross profit. 2179 Lee said that the references in the Mills' email to the Directed cost were the prices paid by Directed to Hanhwa Korea, and as such known by Hanhwa Korea. Lee said that the Directed pricing information was no use to him and he did not use it. But Mills also provided Directed's sale prices directly to IAL which enabled Hanhwa to calculate Directed's cost margin and to pitch its pricing to be competitive with Directed's pricing. Further the evidence reveals that Meneses, Mills and Oh were involved in the setting of prices including by reference to Directed's pricing and profit information, and Lee acknowledged that Mills and Oh were using Directed's profit and pricing information. Further, the evidence is that in several instances Lee asked for Directed's sale pricing from Mills which contradicts his evidence that such pricing information was of no use. It is clear from the specificity with which Mills reported the information that he had Directed's pricing information in front of him. 2180 Now the Hanhwa parties say that the terms of the email do not in terms support the proposition that any use was made of the Directed cost in setting the Hanhwa price. The Hanhwa parties say that the email records that Mills had increased mark ups as requested by Lee, before informing him of the Directed price and margin, and does nothing more than record that the outcome of that suggested mark up by Lee to the cost price resulted in a sale price that was cheaper than the price that Directed had been supplying the same accessory to IAL as an accessory to the DIR6200. But this is contradicted by Mills' references to Directed's pricing and the calculations of Directed's selling prices versus Hanhwa's proposed selling prices. 2181 Lee also said the digital kit was something that they were developing which did not proceed and was not supplied to IAL in any event. But the email chain reveals that Shanks from IAL wanted complete pricing for the SuperDAVE and all of its accessories including these items and further wanted to know which items were new and which were carry over parts. Hanhwa's ability to supply such kits was obviously seen as important by both IAL and Hanhwa. 2182 On 11 July 2017, Oh emailed Lee and Mills concerning DRL images and price information. Mills responded to the referenced two items in a later email. Item 1 was a DRL with attached images for a DRL. Item 2 was a price for the supply by Directed to IAL with reference to what was described as project 1 92075170. Mills' responding email noted that "this pricing for 92075170/92075178/92075179 has profit problems to meet this pricing … Unless you can write down/write off (or buy them for free) the harnesses HDIR51 (92075178) and HDIR52 (92075179).". 2183 The Oh email had the prices present. Lee agreed that it was likely that Oh got the prices from Mills but said that he did not know this at the time and that he had no use for the information. He denied using the information. He said that the DRL price related to the proposal to ICL, which was in fact for a new design and a new harness, whereas the prices in Mills' email related to the accessories for the DIR6200, which Hanhwa Aus was not proposing to and did not supply. For these reasons, Lee said that the information was of no use. 2184 Now on 11 July 2017 Mills also forwarded to Lee the email Mills had sent to Meneses, stating to Lee "I found this email". The email Mills forwarded to Lee was an email from Mills to Meneses dated 23 September 2016, more than 5 months before he left Directed and contained Directed's pricing information for DRLs sold to IAL. Lee accepted that he knew that Mills was using Directed's pricing information. Further, it was clear to Lee that Mills had access to his old emails from when he was working at Directed and that he was appropriating Directed's confidential information. This all of course reflects poorly on Mills and Lee to say the least. 2185 On 12 July 2017, Mills emailed himself attaching Hanhwa's audio cost breakdown quotation for the HAU8000 as well Directed's audio cost breakdown for the DIR8000. The Hanhwa HAU8000 quotation was dated 29 June 2017 whilst the most relevant of the Directed cost breakdown was that dated 30 November 2016 which was the version sent by Meneses to IAL on 8 December 2016. But the Directed version seized at Brooklyn during the search had handwriting on it which indicates that someone had been working it. Lee accepted someone had been doing work or referring to the Directed cost breakdown sheets for Hanhwa's business. Further, the cost breakdown sheets for the HAU8000 but for small adjustments for pricing were almost identical to the Directed cost breakdown sheets. 2186 Lee denied that he had any awareness of the amount of the Directed quote to IAL, or had used it. The end result of the comparison was a price for the HAU8000 of AUD 1292.17 as against the Directed quote of 30 November 2016 for the amount of AUD 1490.80. 2187 The key differential between the Hanhwa quote and the Directed quote was that in the case of the Hanhwa quote the head unit cost was AUD 1121.29 whereas the Directed head unit cost was AUD 1292.71. Additionally, Directed added to its cost base a tooling cost which it sought to recover as part of its quoted cost in the amount of AUD 20.50 per unit. This was not applied to the Hanhwa cost. Hanhwa Aus' price to IAL was cheaper, first, because the cost of the unit supplied to it from Hanhwa Korea was cheaper, second, because it was not required by Hanhwa Korea to absorb the tooling cost and, third, because Directed had in fact misrepresented to IAL the tooling cost, asserting that it had incurred it in the amount of AUD 430,556 when it had not incurred such a cost at all and had only been quoted AUD 321,850, which it had not paid. The cost format forms were in the same format which was a requirement of IAL. 2188 But Directed disputes this. The key difference in the prices was the cost at which Hanhwa Korea was offering to supply Directed as opposed to the price at which it supplied Hanhwa Aus. Had Hanhwa Korea honoured its previous quoted price to Directed of USD 660 or the request from Directed to supply it at USD 650, being the price that it ultimately supplied to Hanhwa Aus, Directed's price offered to IAL would have been significantly lower and close to or the same as the target which Directed advised Hanhwa that it was seeking to pitch the product to IAL (AUD 1,292). This being the price at which Hanhwa Aus agreed to supply the unit to IAL. Directed accepts that Hanhwa Aus' price to IAL would have always been cheaper by AUD 20 by reason of the fact that Hanwha Aus offered to absorb the cost of the tooling, whereas Directed sought to amortise the tooling cost over 21,000 units (approximately 2 years supply). Further, given Meneses advised Lee in 2015 that he was seeking to win the business from IAL at AUD 1,292 it can be inferred that ultimately, if required, Directed would have absorbed the extra AUD 20 for the tooling cost if IAL had not agreed to pay it. I must say that Directed's position has considerable force. 2189 Now amongst the documents seized from Mills' house was a document dated 3 March 2017, headed "DIRAU-Query-BLM parent sale price fees v cost base". The document listed various items acquired by Directed, and included reference to both the item cost, the list price, the resultant gross profit and resultant gross profit percentage. Lee said that he had never seen this document before and did not use it in pricing Hanhwa Aus' products. When it was suggested to him that Mills was closely involved in the pricing of Hanhwa Aus' products, Lee reiterated his earlier evidence by saying: Yes. What I did to Craig Mills, is that I said 10 or 15% of each product or sometimes I said 20% or 30% margin on the product, and then he made a calculation of those products … for his form which is provided by Isuzu or other customers so that's what he did. So once I got the information and once I got the documents or the process then I made the final confirm to check … if it's low I increase, then I forward to my customer. 2190 Directed disputes this and also says that it was conceded that Mills was closely involved in the pricing of Hanhwa Aus products. 2191 Now the Hanhwa parties say that the task of setting Hanhwa Aus' prices involved only the application by Lee of a percentage mark up on the Hanhwa Korea cost price. But Directed disputes this, which I agree. But in any event the Hanhwa parties say that Hanhwa Aus was not supplying or seeking to supply customers with those products that had previously been supplied by Hanhwa Korea to Directed, for example, the DIR6200 units and the accessories that applied to those units. But again Directed disputes this. Many of the products which Hanhwa Aus offered to supply IAL and did supply to IAL were products supplied by Hanhwa Korea and Leemen Korea to Directed. There are many documents in which Hanhwa noted parts and accessories to the HAU8000 and the LM18I were common or carryover parts supplied in relation to the DIR6200. I agree with Directed's position. 2192 On 13 July 2017, Lee emailed Shanks, copied to Meneses at his Hanhwa email address. Lee attached a quotation for the Hanhwa audio unit and advised that certain accessories were still under development but set out a development plan for the accessories. Within the email chain was an email from Lee to Shanks of 7 July 2017 which attached an MFL and timing schedule for what he described as the SuperDAVE unit. Further, on 11 July 2017, and in response to a request from Shanks, there had been sent a parts list for the new unit which identified those parts that had previously been part of the DIR6200. 2193 On 17 July 2017, Lee emailed Meneses at his Hanhwa Aus address with the subject line DRL saying that they needed the price for the DRL. He said they needed to submit the quotation to ICL within a week and thought that the DRL price would be around USD 170 to 180 and the harness at about USD 35. On 19 July 2017, Lee emailed Hara at ICL the Isuzu N/F Series DRL package. 2194 On 20 July 2017, in relation to a request from Hara, details were provided of the fog light. 2195 On 26 July 2017, Lee emailed Shanks concerning "Meeting Minutes as of 26th July 2017". I have referred to this meeting elsewhere. The email noted the following items: 1. Visit to Korea on Monday the 21st of Aug 2017 for 4 nights and fly back to Mel on 25th of Aug Members: Ian Shanks and possibly Simon Humphries/Phil Tylor (TBA) 2. Ryan to provide all documentation beforehand. 1. All procedure report as TS16949/ISO standards(Sales/Purchase /Production/QC and Development) 2. Main Parts Incoming inspection report 3. Final QC Inspection Report 4. Reliability test report 5. Ian to provide the Audit chart 3. Ryan to provide the timing chart(Project program) as we discussed with all accessories(different colour) on same page • Maybe share this chart to all to be on same track • Will provide until 2nd of Aug 2017 • Also will add the column of Admin orders and contracts 4. Confirmed the MFL meeting with Ryan, JM and Simon Humphries at Laverton on 4th Aug 10AM for 2 hours. 5. Ian to provide the draft of supply agreement in this week. 6. Start to supply the Super DAVE on FX/FY series on Oct 2017 and look at all truck range on mid of 2018. 7. Possibly weekly meeting to have with Hanhwa and Isuzu 2196 In July 2017, Meneses showed Lee a copy of his resignation letter and told him that he had given notice to Directed and could start working at Hanhwa Aus in August 2017. But the evidence is that up and until October 2017, Lee knew that Meneses was still working for Directed and that he had not resigned from Directed. 2197 On 8 August 2017, IAL through Humphries and Lee signed off on the HAU8000 MFL. 2198 On 9 August 2017, Summers emailed Lee, stating "Hi Ryan I have had enough working for Directed! I am wondering if there is a position available at Hanhwa. This email is super confidential please don't discuss with Johnny! ! Let me know if this [is a] possibility". Lee responded saying that they would talk later. 2199 On 10 August 2017, Lee emailed Shanks advising that he was going to submit the PPAP that day but they needed to discuss the part numbers. Shanks replied providing the part numbers but saying that they would not approve the PPAP until after he had audited the facilities and got final approval for the project. 2200 On 16 August 2017, Lee emailed Shanks and Humphries and referred to a meeting that they had had that day. The email read: 1. No more existed we called "Super DAVE" and Simon has decided now we call "Isuzu Command Centre". 2. Ryan provides the parts illustration later today or tomorrow with all changes. 3. Ian provides an individual part number of each accessories and also provide separate part number of package in this week. 4. DVR/Digital Reserve Camera/ADAS/Blind spot kit will be Safety package that needs to be another part number. 5. Simon and Ian decided the steering remote control should not be accepted with the making screw hole on to the wheel.(Leave with 3M tape) 6. Ryan provides the latest Navigation GUI(Isuzu office on the map) for making the marketing presentation. 7. Ian will talk to Fabio that provides the forecasting of Isuzu Command Centre package on Friday. 8. Ian will send the draft supply agreement or contract on Friday. 2201 On 18 August 2017, IAL sent Lee and Meneses a draft of the supply agreement between Hanhwa Aus and IAL. 2202 On 25 August 2017, Lee informed Hara that they needed to develop a new harness because it was different from the Australian model and asked for details as to the three pole connector name. 2203 On 4 September 2017, Meneses emailed Lee in relation to the prospective employment of Dane to which Lee responded. Dane drafted a resignation letter, but ultimately chose to stay at Directed. 2204 On 5 September 2017, Lee emailed Shanks and Humphries copying in inter-alia Meneses and Mills. The email proposed a meeting to show them the navigation software for the HAU8000. 2205 On 18 September 2017, IAL sent through the first order for units of the HAU8000. 2206 On 25 September 2017, Lee submitted a copy of the Isuzu Command Centre (the new name for the HAU8000) PPAP documentation and two master samples. 2207 In September 2017 or early October 2017, Shanks or Humphries told Lee that IAL did not have plans for the AV units to be supplied by Hanhwa Aus to deploy telematics connectivity. 2208 On 3 October 2017, IAL in substance advised Gridtraq that it had no use for Gridtraq's services. A possible reason for that may have been that IAL had identified another telematics solution with Polstar, unbeknown to Hanhwa Aus and likely Gridtraq. An alternative solution is referred to in an email from Humphries at IAL to various IAL representatives including Shanks on 18 September 2017; at one stage Directed queried whether this was in evidence, but it has had the opportunity to respond to it and I will receive it if there is any doubt. In that email IAL wrote: Last week, Hanhwa Australia provided Ian and I with an overview of the SatNav features that are being updated for the Isuzu Command Centre. The Tier 2 supplier to Hanhwa (Zoltan from Polstar) has developed some unique features for the SatNav that will be launched with VC43 FX and FY models in 5 weeks, and at this stage, with the ICC when it is rolled out to other Isuzu models next year. NOTE: Hanhwa Australia has no plans to develop a Telematics solution for IAL; they are already aware we have an option from Directed (of course!) but may be pursuing other options. They don't know that one of our options has integrated SatNav with truck features. 2209 In October 2017, Quantam introduced Hanhwa Korea to its contacts at United Radio in the USA via an associate of Thibaud. 2210 On 5 October 2017 Lee emailed Mills discussing a camera and saying "Still waiting the price mate. Only need CAM extension cable with Directed price.". Mills responded 6 minutes later with a spreadsheet attaching a camera pricing list for IAL. Mills' email listed 8 items and had two columns, one of which dealt with the Hanhwa price to IAL + GST and the other was comparable price + GST. One item, the camera code 92957614, was not the subject of a price comparison whilst another item, a reverse trigger wiring harness and new configuration, had "to be advised" for Hanhwa and not applicable for the comparable price. 2211 Lee denied that he asked Mills for the Directed price in order to assist him in setting the pricing for the corresponding product for Hanhwa to provide to IAL. The reference to "still waiting the price mate" and only "need cam extension cable at Directed OE price" could have been a reference to waiting on the price to be charged from Hanhwa Korea to Directed, and wanting the same price on the cam extension cable at the Directed price. But Directed says, which I accept, that the document makes clear that Lee wanted and was provided by Mills with Directed's sale price on the products. Directed says that the disputed items were all products offered for supply by Hanhwa to IAL and ultimately ordered by IAL. The document Mills created referred to Isuzu part numbers for the relevant products. All of those specific Isuzu product part numbers are referred to in a part number comparison table later prepared identifying which parts were common between the HAU8000 and the LM18I. 2212 On 6 October 2017, Ian Porter from Fuso New Zealand sent an email to Meneses at Meneses' Directed email address subject line "Photos of New Truck Dash" and sent some photos. Meneses forwarded the email on to Lee. Lee did not agree that this was an opportunity provided by Fuso to Directed (as opposed to Hanhwa Aus) because he said that Meneses had gone to New Zealand Fuso as the Hanhwa Aus paid representative and the sales opportunity arose from that. But the email was sent by the Fuso representative to Meneses at his Hanhwa email address following a trip made by Meneses to New Zealand, paid for by Directed and following Meneses sending an email to Tselepis and Siolis telling them that he was making the trip to New Zealand on behalf of Directed and planning to visit, inter alia, Fuso. 2213 Around this time, Hanhwa Aus and IAL entered into a supply agreement for the HAU8000 unit. 2214 The IAL management update for 9 October 2017 noted that the level of readiness for the HAU8000 unit was acceptable, that the installation instructions were in draft format with changes required, that software was still being debugged, and that it should be ready for shipments to start by 1 November 2017, with the Hanhwa Korea shipping. But Hanhwa Aus ordered the first 500 HAU8000 units on 28 April 2017, the first order by IAL to Hanhwa Aus was placed on 18 September 2017 and the first deliveries to IAL were made on 31 October 2017. 2215 On 9 October 2017, Meneses emailed Lee saying "Hi, As per our conversation please send Hashim a letter of employment as R&D. His salary will be $60,000 plus phone". Lee conceded that Meneses was the person who was handling the negotiations with Hashim. 2216 On 17 October 2017, Oh emailed Hanhwa/Leemen personnel advising that the first batch of HAU8000 units would be delivered to IAL. The schedule set out that there would be a road test conducted on 17 October 2017, that IAL would be informed of the test results, that on 17 October 2017 Polstar would be asked to raise a proforma invoice for the Android navigation licence, and that the first delivery date to IAL was 27 October 2017. On the same day, Polstar invoiced Hanhwa Aus for 500 Polstar Android Isuzu Navigation licences. 2217 On 19 October 2017, Meneses received an accompanying payslip from Hanhwa Australia. The pay period was for 20 September 2017 to 19 October 2017 and the total earnings for the month were AUD 12,500. Separately, by an invoice dated 21 September 2017, OE Solutions invoiced Hanhwa Aus for a consultant's fee for September 2017 in the amount of AUD 55,485 plus GST. Subsequent invoices to the same effect were sent from OE Solutions to Hanhwa Aus, namely, on 24 October 2017, consultant's fee for October 2017 in the amount of AUD 45,833 plus GST, and on 20 November 2017, consultant's fees for November 2017 again in the amount of AUD 45,833 plus GST. 2218 On 20 October 2017, Oh emailed Palone at his Hanhwa Aus address concerning an installation guide. The email said "Hi Marcus, Could you please see the attached new pics of Battery pull tab for remote control kit." She noted that "I hope it will help you to prepare the installation guide." At this time Palone was a Directed employee. 2219 On 27 October 2017, search and seizure orders made by me were executed at a number of premises including at Aspendale Gardens, Victoria. During the execution of the search and seizure orders at Meneses' premises, Ferrier Hodgson Forensics located and seized a number of electronic storage devices including a Seagate 2TB drive. 2220 The Seagate 2TB drive was forensically imaged and verified by Ferrier Hodgson. In the report from the independent computer expert, Justin Geri of Ferrier Hodgson Forensics dated 16 February 2018, Geri noted that during his review of the digital images seized from Meneses' premises he identified that the content of the digital image of the Seagate 2TB drive appeared to him to be a copy of files from Directed's company file servers relating to Directed's books and records including folders and files related to finance, marketing, sales, service production and testing. 2221 Now at the time that the search and seizure orders were executed on 27 October 2017, Hanhwa Aus was preparing to make its first delivery of HAU8000 pursuant to the HAU8000 supply agreement. 2222 As a result of the search and seizure orders and also freezing orders that I made, Hanhwa Aus was not able to fill IAL's orders made pursuant to the HAU8000 supply agreement. As a result and in order to allow the orders to be filled, on 6 November 2017 the freezing orders were amended to allow Hanhwa Aus to supply IAL's orders under the HAU8000 supply agreement but providing for part of the proceeds of any sales to be placed in a trust account pending the outcome of the proceedings. 2223 Hanhwa Aus supplied 388 HAU8000 units in 2017 to IAL pursuant to the HAU8000 supply agreement. In early November 2017, IAL's Shanks told Lee that despite the amendment to the freezing orders, IAL did not want to get involved in any legal issues between Hanhwa and Directed, so it would cease ordering the HAU8000. Nevertheless, in 2020 Hanhwa Aus supplied a further 500 units. 2224 On 8 November 2017, Oh wrote to Directed's Proghios advising of the receipt of an "end of life" letter from the supplier of the CPU part of the AV units manufactured by Hanhwa Korea. As a result, Hanhwa Korea requested that Directed review and let Hanhwa Korea know the forecast information for its 2018 AV units that Directed anticipated ordering from Hanhwa Korea so that Hanhwa Korea could discuss this with the CPU supplier and make an order plan for this part based on the Directed forecast data. The forecast information was provided. 2225 On 14 November 2017, Oh wrote to Proghios referring to Directed's recent purchase orders numbered 1283 and 1287 dated 13 November 2017 and 14 November 2017, and advised that Leemen was not willing to accept those orders due to an impending price and terms review, whilst Hanhwa Korea was reviewing internally the order for the DIR6200 x 1500 units the subject of purchase order no. 1239. 2226 On 15 November 2017, Directed's solicitors K&L Gates wrote to the solicitors for the Hanhwa parties, Mills Oakley. In that letter the solicitors referenced both the purchase order no. 1239 placed with Hanhwa Korea and in respect of which Directed had paid a 20% deposit and purchase orders numbered 1283 and 1287 placed with Leemen Korea. The letter alleged an implied agreement between the parties and an implied term that it could only be terminated on reasonable notice, which was asserted to be 8 months. It made no reference to a written agreement in the terms of the Hanhwa Enterprise Agreement or otherwise. 2227 On 17 November 2017, Mills Oakley wrote to K&L Gates advising that Hanhwa Korea and Leemen Korea agreed to supply the products pursuant to the purchaser orders numbered 1239, 1283 and 1287 but denied an implied agreement. Whilst asserting that it was under no obligation to do so, it said that it would accept all purchase orders from Directed placed prior to 28 February 2018, including for all DIR units and accessories. 2228 On 22 November 2017, Oh wrote to Floudas and Proghios reminding them about the end of life (EOL) issue relating to the CPU, and asking for 2018 forecasting. 2229 On 28 November 2017, K&L Gates wrote to Mills Oakey, and referred to six non-exhaustive terms of an implied agreement between Hanhwa Korea and Directed which had allegedly been in place since 2009 in the case of Hanhwa Korea, and 2015 in the case of Leemen Korea, including one of reasonable notice, said to be of 12 months. The letter made no reference to a written agreement in the terms of the Hanhwa Enterprise Agreement or otherwise. 2230 On 30 November 2017, Floudas wrote to Oh concerning her email of 22 November 2017. Floudas advised that Directed anticipated that they would require 24,000 units over the next 12 months. On 1 December 2017, Floudas emailed Oh providing a forecast which excluded existing purchase orders. The Floudas spreadsheet provided details of Directed's anticipated ordering requirements from Hanhwa Korea for AV units between February and September 2018. The total forecast was for 21,000 units to supply to IAL, Hino, Fuso, UD and Mercedes. 2231 Until November 2017, Meneses continued to receive salary payments by Directed although Lee did not know of this. 2232 On 5, 6 and 7 December 2017, Mills Oakley and K&L Gates exchanged correspondence on the terms of the notice period, and placement of orders by Directed. 2233 In December 2017, Meneses and Lee visited ICL in Japan to discuss the potential supply of the HAU1024 and DRL driving lights. Directed says this also included the HAU8000 and accessories; later discussions concerned a version of the LM18I. 2234 Following the meeting, on 18 December 2017 Lee emailed Hara which referred to a previous meeting. There were a number of items in relation to the DRLs including the need for ICL to provide connectors. Hanhwa Korea was to create and arrange the harness sample with similar action items in relation to the DRL. Lee's email also referred to providing a sample of the Isuzu Command Centre, being the new name for the HAU8000. In relation to the Isuzu D-MAX there was reference to ICL seeing a potential market in Thailand with Hanhwa and ICL advising how the business would go in the market. Hanhwa was to advise on an 8 channel AV quotation in January 2018. Lee said that the reference to the 8 channel AV quotation under the sub-hearing D-MAX did not relate to the head unit and only related to the 8 channel round view monitoring system. 2235 On 19 December 2017, Lee emailed Dylan Hartley, Davidson and Allen Hartley with the message "What is this one?" referencing the email from Tselepis dated 8 May 2014. There was no response. Lee said that he was seeking clarification as to whether this was a document referred to in the statement of claim which had been served on or around 14 December 2017. But this seems to have been a problematic assertion. 2236 In early 2018, Lee instructed Park to design a new product to supply to IAL because IAL had ceased purchase of the HAU8000. The new unit was to be smaller in size and cheaper and was known as the LM18I. But the documents reveal that the plan hatched between IAL and Lee was initially for Hanhwa Aus to supply IAL the DIR6200 with a new fascia but by 16 February 2018 the plan changed to supplying the HAU8000 with a new fascia. The documents reveal that is all that occurred and within a very short period of time a new fascia was designed and tooling was made for that fascia and the product which was delivered was the HAU8000 with a new fascia and with minor modifications to the Polstar software given the differences in screen size and GUI. Further, the product given the name LM18I was offered for supplied and supplied with many of the same accessories as supplied with the HAU8000. 2237 On 18 January 2018, Oh emailed Mohos from Polstar copying in various other employees. Oh's email sets out what was described as a simple version of a comparison table between the HAU8000 and the LM18I. The differences included the size of the screen, the operating system, the resolution of the maps screen and the raw map data. Oh had earlier emailed Polstar on 16 January 2018. But in this document Oh was comparing the HAU8000 against the unit that was proposed being the DIR6200 with a new fascia and not the unit that was ultimately agreed to be supplied which was the HAU8000 with a new fascia. Now Oh's email referenced the earlier provision to Polstar of a sample PC tablet sent the previous year which was accompanied by a request to customise map data for a new Fuso 6.1. She asked Polstar to prioritise the new Isuzu 6.1 inch product. Lee denied that this had anything to do with the units for Mercedes. But I agree with Directed that the evidence supports a conclusion that Polstar had been asked to develop navigation software for its proposed AV unit to replace the DIR6160 but the work required to modify the HAU8000 navigation software for the purposes of the LM18I needed to take priority. 2238 On 28 January 2018, Lee emailed Shanks with the latest design of the new 6.1 inch unit, being the new Hanhwa unit or the LM18I. But this design was for the proposal to supply the DIR6200 with a new fascia and not the unit that was ultimately offered for sale and sold as the HAU8000 with a new fascia. However, the email refers to the fact that Lee had started to look at the proposal of supplying the HAU8000 with a new fascia. The later emails between Meneses and Lee confirm this fact. 2239 In February 2018, Hanhwa Aus was invited to tender for the supply of a new unit for IAL. 2240 On 12 February 2018, Siolis, Tselepis and Stafford met with IAL's representative Shanks, Taylor, Harbison, Ben Chamberlain and Humphries and presented on a new AV unit to replace the DIR6200. 2241 On 14 February 2018, Siolis swore an affidavit in support of Directed's application for an interlocutory injunction in effect restraining Hanhwa Korea from refusing to supply Directed with respect to orders placed by Directed after 28 February 2018. Siolis' affidavit did not refer to the Hanhwa Enterprise Agreement. This was located by Tselepis on 21 June 2019. 2242 Further, Siolis said that Directed had made total payments to Hanhwa Korea for tooling of AUD 1,384,539 in the period 2009 to 2014 and that in the case of the DIR6200, Directed had paid Hanhwa Korea USD 148,000 in 2012. 2243 On 19 February 2018, I made orders on the hearing of the application, the effect of which was that Hanhwa Korea and Leemen Korea were required to accept orders placed up to and including 17 May 2018, which effectively equated to 6 months from the sending of the letter from Mills Oakley on 17 November 2018 being a purported notice of termination. 2244 On 22 February 2018, Shanks wrote to Taylor advising that they had considered the new Directed offering and the alternative Hanhwa unit, which was to be supplied by Hanhwa Aus (not via Directed) for supply mid-year, and decided to select the LM18I for a number of reasons including cost, stock, current accessories, and audio range consistency. They also thought that the Directed offering was too risky given the lack of detail presented. 2245 Also on that day, Lee emailed Petrovski from Hino. He proposed meeting with Petrovski in late February 2018. Lee said that he would be able to meet with Petrovski on 27 February 2018 and asked that Meneses attend at the meeting. Lee agreed that what he was proposing to supply him with at that stage was the LM18H. But it was Meneses who made the initial approaches to Petrovski to supply the LM18H to Hino. 2246 On 26 February 2018, Lee emailed Shanks and attached an MFL/Parts Illustration/Rendering and Comparison Sheet for the LM18I to Shanks. The attached comparison sheet set out the rendering both for the LM18I with a Windows CE operating system and the LM18I with the Android 5.1.1 operating system, and compared it to the HAU8000. It also contained rendering and feature lists for the HAU8000 unit. 2247 On 27 February 2018, Meneses emailed Jeff Gibson and Petrovski at Hino copying in Lee advising that he had new drawings and a new MFL and requested time to discuss the project. There was a follow up with another email on 13 June 2018 with other options. 2248 In about March 2018, the safety screen was renamed the in-vehicle safety screen. 2249 On 5 March 2018, Lee emailed Shanks in response to Shanks' request that IAL were looking to reduce the costs of the new Hanhwa unit and as such were considering the possibility of deleting the CD mechanism. Lee responded by saying that because he had not yet started to make the tool yet and had just finished the tool design, he would be able to relook at the design without the CD deck. He also said he could look at a bigger screen, maybe 6.2 inch rather than 6.1 inch, which would have a price effect. On 8 March 2018, Lee sent Shanks the latest rendering and MFLs without the CD mechanism and front CD slot. 2250 On 20 March 2018, Hanhwa Korea's internal design team gave approval for the design commencement of the LM18I unit being the 6.2 inch AV unit. It was planned to be shipped in June 2018. But according to Directed this was not the commencement of a new design. It was the commencement of a development of a new fascia for the HAU8000 with minor modifications required given the change in the screen size and the deletion of the CD mechanism and USB slot. But it is pointed out that there was a difference in pricing; the price of the HAU8000 unit including navigation and audio was AUD 1512.93 in comparison with the LM18I at AUD 1085.29. 2251 On 28 March 2018, Shanks wrote to Lee and advised him that the LM18I is approved and that production quantity stock was required in July 2018 with four samples as soon as possible to test and trial. Shanks advised that the purchase order and forecast would be provided the following week and requested that Lee prepare for production. Lee responded by advising that the Hanhwa group would do their utmost for IAL. 2252 On 5 June 2018, I rejected another interlocutory application by Directed to restrain the Hanhwa parties from supplying the LM18I or in the alternative requiring part of the proceeds to be put in trust. 2253 In July 2018, Petrovski from Hino informed Meneses that Directed had been chosen as its preferred supplier over Hanhwa Aus. 2254 On 30 July 2018, Hara from ICL emailed Lee saying the R&D team had looked at the product but had raised two particular issues. Lee sought another meeting in mid-August 2018. Lee said the meetings had not taken place. Neither Hanhwa Korea or Hanhwa Aus have sold any product to ICL. 2255 In October 2018 Hanhwa won the contract to supply Mercedes and Fuso the LM19M and LM19F. On 19 October 2018, Meneses, now at Hanhwa Aus, emailed the Daimler group in relation to the proposed supply of product to the Daimler group. From October 2018, Hanhwa Aus has supplied Mercedes with an AV unit known as the LM19M. I note that the evidence is that Meneses first approached Mercedes on 1 December 2017 seeking to supply an AV unit manufactured by Hanhwa for supply to Mercedes directly. Later there was a meeting at which the LM19M and LM19F were pitched to replace Directed's products. 2256 Let me now turn to and say something more detailed concerning the contractual claims. The contractual claims 2257 Directed's contractual claims against the Hanhwa parties rely upon what is said to be a novated form of the Hanhwa Enterprise Agreement. Alternatively it relies upon what is said to be the Hanhwa Korea Agreement. Let me say at the outset that I reject Directed's novation case. Further, although I accept that there is a form of Hanhwa Korea Agreement, I do not accept that it contains some of the terms suggested by Directed. Let me begin with the Hanhwa Enterprise Agreement. 2258 Directed refers to the terms of the Hanhwa Enterprise Agreement which are said to prevent Hanhwa Enterprise or its successor(s) from supplying products including "any similar product" to anyone but Directed. It also relies on an express confidentiality term. The Hanhwa Enterprise Agreement is also said to contain a provision that rights and obligations thereunder that by their nature should survive termination or expiry, remain in effect after termination. 2259 Directed says that the Hanhwa Enterprise Agreement was novated such that it also binds Hanhwa Korea and Leemen Korea, notwithstanding that it was entered into by Hanhwa Enterprise. 2260 Further, as I say, Directed also alleges an overarching implied agreement between Directed and Hanhwa Korea and/or Leemen Korea to the same effect as the Hanhwa Korea Agreement, containing various implied terms including terms as to reasonable notice of termination of 12 months, a term that Hanhwa Korea would not manufacture and/or sell a product to any other party that is the same or substantially the same as the alleged agreed products and finished products developed in collaboration between Hanhwa Korea and Directed, and an implied confidentiality term. The Hanhwa Korea Agreement is also said to include an implied term of good faith. I will return to that alternative case later. 2261 Now the Hanhwa Enterprise Agreement has been pleaded by Directed in the 3FASOC in the following terms: By an agreement made on or about 27 July 2010 between Directed OE and Hanhwa Enterprise, Directed OE engaged Hanhwa Enterprise to provide exclusive manufacturing and supply services to Directed OE, of those products ordered by Directed OE from Hanhwa Enterprise (HE Products), and Hanhwa Enterprise agreed to manufacture and supply the HE Products in accordance with specifications and orders of Directed OE (Hanhwa Enterprise Agreement). 2262 There is little doubt that such an agreement existed. By this agreement in writing made on or about 27 July 2010 between Directed and Hanhwa Enterprise, Directed engaged Hanhwa Enterprise to provide exclusive development, manufacturing and supply services to Directed, of those products to be developed Hanhwa Enterprise and, if accepted by Directed as conforming to the specification and satisfying all of the testing requirements of Directed, Hanhwa Enterprise agreed to manufacture and supply those products in accordance with specifications and orders of Directed. In essence, the Hanhwa Enterprise Agreement was an umbrella agreement. Under the agreement Directed sought to engage Hanhwa Enterprise to provide exclusive manufacturing services to Directed for their specified products, and Hanhwa Enterprise agreed to manufacture products in accordance with specifications of Directed and to supply them to Directed. 2263 There were express terms that included the following: (a) Defined Terms (Section 9): Agreement: the terms and conditions of this Agreement, including all documents attached or otherwise incorporated by reference. Claims: any claims, liabilities, actions, demands, costs and expenses, including reasonable legal fees. Confidential information: any non-public business, financial, personnel or technological information, plans, data or other information that, at the time of disclosure, is clearly marked as confidential or in the circumstances would be considered to be confidential and include the terms of all contracts between the Parties. Confidential Information of Directed includes, without limitation, the Bill of Materials, Specifications and all information and materials provided by Directed relating to Customers. Information or materials will not be considered Confidential Information to the extent such information or materials can be shown by the Recipient to have been: (a) available to the public prior to the date of Discloser's disclosure to Recipient or to have become available to the public thereafter without any unauthorized act or omission by Recipient; (b) rightfully in Recipient's possession prior to the date of Discloser's disclosure to Recipient and not otherwise restricted as to disclosure; or (c) disclosed to Recipient without restriction by a third party who had a right to disclose and was not otherwise under an obligation of confidence. Information or materials shall not be deemed to be "available to the public" or to be "in Recipient's possession" merely if such information or materials can be reconstructed, combined or pieced together from multiple sources that are available to the public or Recipient if no one of those sources actually leads one to the entire combination, together with its meaning and importance. Customer: customers who purchase Products for their own internal use as an end user. Effective Date: the date at the head of this Agreement. Order: a purchase order submitted by Directed to Hanhwa Enterprise that specifies the Product(s) that are to be manufactured by Hanhwa Enterprise and shipped by Hanhwa Enterprise to Directed. Product(s): each Directed product identified in an Order that will be manufactured by Hanhwa Enterprise in accordance with the Specifications under this Agreement. Specifications: the design, engineering, functional and/or technical specifications for each Product including, but not limited to the items section out in Section 2.1, the Bill of Materials, assembly drawings, process documentation, test specifications, current revision number and all applicable third party components. (b) Scope of Relationship between Parties (Section 1.1): This Agreement governs all transactions between the Parties with respect to (a) the manufacture of Products by Hanhwa Enterprise including, but not limited to design, testing and configuration, production and supply chain process and quality control procedures to be implemented by Hanhwa Enterprise while manufacturing the Products; and (b) the supply of Products to Directed for the purposes of Directed selling those Products to its Customers. (c) Exclusive Relationship (Section 1.3): Hanhwa Enterprise will not: (a) manufacture the Product and any similar product for any other customer without the prior written consent of Directed and (b) supply any Product manufactured under this Agreement to any party other than Directed. (d) Product Specifications (Section 2.1): Directed will supply Hanhwa Enterprise with its manufacturing procedure instructions ("MPI"), testing procedure instructions ("TPI") and quality management system ("QMS") relating to the Products. Hanhwa Enterprise must manufacture all Products in accordance with (a) the Specifications, (b) the manufacturing requirements set forth in this Agreement, and (c) the quantities and other terms in each Order. (e) Product Development (Section 2.3): (i) Prototype: Hanhwa Enterprise will initially build a prototype of each Product based on the specifications for such Product and will test such prototype in accordance with the testing requirements in the TPI. Directed will notify Hanhwa Enterprise what tests are required to be performed on the Product. (ii) First Article Production: If Directed, in its sole discretion, determines that the prototype of a Product conforms to all Specifications and satisfies all of the testing requirements of Directed, then Hanhwa Enterprise will proceed to the first article production for the Product ("First Production"). The Product numbers in the First Production be agreed in advance by the Parties. Directed may be present at the Manufacturing Facility where the First Production takes place. Following completion of the First Production, Directed will determine, in its sole discretion, if Hanhwa Enterprise has successfully achieved First Production based on the Specifications and all other testing requirements. If Directed approves the First Production for a Product, then Hanhwa Enterprise will be permitted to manufacture and ship such Product upon receipt of an Order from Directed. If Directed does not approve the First Production, Directed will provide Hanhwa Enterprise with the reasons as to why Hanhwa Enterprise did not successfully achieve this and provide any necessary and specific suggestions and guidelines to assist Hanhwa Enterprise to achieve approval. Hanhwa Enterprise will proceed again with the First Production and approval process as set forth above, until the First Production is approved by Directed. Directed will have the right, at any time in its sole discretion, to observe Hanhwa Enterprise's performance of required testing. If Hanhwa Enterprise is unsuccessful in First Production testing more than twice, then Directed may (a) cease the project relating to the production of the Product; (b) change the Product Specifications; or (c) terminate this Agreement. (iii) Production at Manufacturing Facilities: Hanhwa Enterprise will be required to follow the above prototype and First Production approval process at each Manufacturing Facility for each Product. Hanhwa Enterprise will use the Manufacturing Facility that is the most cost effective with respect to production, shipping and delivery costs and allows for timely delivery of an Order. (f) Corporate Warranties (Section 5.1): Each party warrants to the other that: (a) they are duly incorporated under the relevant jurisdiction of their incorporation; (b) they are authorized to sign this Agreement; and (c) doing so will not breach any law or similar requirement or any other contractual obligation to which such party is bound. (g) Confidential Information (Section 6): Each party ("Recipient") must keep all Confidential Information that the other party ("Discloser") gives to them, in whatever form, as confidential, using the same degree of care that the Discloser would use to protect its own Confidential Information. The Recipient must not disclose the Confidential Information that it gets from the Discloser to anyone else, unless the Discloser expressly allows Recipient to do so. The Recipient can, however, disclose the Confidential Information of the Discloser to such employees and contractors of the Recipient who need to know the information in order to perform obligations under this Agreement. (h) Term (Section 7.1): This Agreement will start on the Effective Date and, unless terminated earlier under its terms, will continue for an initial term of 12 months. After that, this Agreement will automatically be renewed for successive 12 month term(s), unless either Party notifies the other in writing at least 60 days prior to the renewal before the expiry of the-then current term of its decision not to renew. (i) Termination (Section 7.2): Either Party may terminate this Agreement without cause on 60 days prior written notice to the other. In addition, either party may terminate this Agreement immediately by written notice if the other party (i) breaches the confidentiality terms in Section 7; or (ii) commits a material breach of any other terms of this Agreement and does not remedy that breach within 30 days of written notice to do so; or (iii) becomes or threatens to become Insolvent. Neither Party is deemed to have waived any rights existing at the time of termination. (j) Governing Law (Section 8.2): This Agreement will be governed by and construed in accordance with the laws of Victoria, and the parties agree to submit to the exclusive jurisdiction of the courts of Victoria and where applicable the Federal courts of Australia. (k) Miscellaneous (Section 8.5(f)): Rights and obligations under the Agreement, which by their nature should survive the termination or expiry, will remain in effect after termination. 2264 I should make reference to two other provisions. 2265 First, clause 8.4 provided for liability exclusion to the effect that neither party will be liable to the other or to any other person for, amongst other things, any loss of revenue, or loss of actual or anticipated profits or damages however arising, whether in breach of contract, breach of warranty or in tort, including negligence. 2266 Second, clause 8.5(c) provided that Hanhwa Enterprise was prohibited from sub-contracting, assigning or otherwise transferring any of its rights or obligations under this agreement without the prior written consent of Directed. 2267 It is also said, which I accept, that there was an implied term of good faith to the effect that the parties would act in good faith to one another in that they would act honestly and with fidelity to the bargain, they would not act dishonestly or do any act to undermine the bargain entered into or the substance of the contractual benefit bargained for and they would act reasonably and with fair dealing having regard to the interests of the parties and to the provisions, aims and purposes of the contract, objectively ascertained. 2268 Let me now elaborate further on various aspects. 2269 Clause 1.3 provided that Hanhwa Enterprise would not manufacture the Product and any similar product for any other customer without the prior written consent of Directed and would not supply any Product manufactured under the Agreement to any party other than Directed. The term "Product" is capitalised under the Agreement. The scope of this was in dispute. 2270 Now the exclusivity clause imposed a limitation on Hanhwa Enterprise referable to a Product. But it is not an unrestricted term. 2271 Now having regard to the degree of similarity between the HAU8000 and the DIR8000 and its relationship to the DIR6200, Directed says that if the HAU8000 was derived ultimately from the same information provided from the DIR8000 and the anterior DIR6200 then the restraint may operate, assuming of course that the restraint has contractual force in terms of novation being established. 2272 Directed says that the association between these products is relevant to the assessment, and that it is that association and that causal connection between Hanhwa Aus' AV units which relevantly connects the DIR8000 with the Products previously supplied to Directed, and which brings the HAU8000, LM18I and other such derivative products within the reasonable scope of the restraint. 2273 I will return to this later, although as I say, Directed has failed on its novation case. Moreover, it has not succeeded in establishing its alleged exclusivity term in the Hanhwa Korea Agreement. 2274 Now the Hanhwa parties made the following points concerning the Hanhwa Enterprise Agreement. 2275 First, it was said that the signatory on their side, YS Lee, spoke little English and could not read it except for basic English. It was said that he could not have read or understood the provisions of the Hanhwa Enterprise Agreement, and that this was known to those who dealt with him, including the counter-signatory, Siolis. 2276 But in my view the Hanhwa parties have over-stated this concern. 2277 It is to be noted that in 2005, Meneses entered into a similar agreement to his 2009 and 2012 secret commissions agreements with Hanhwa Enterprise which was signed by YS Lee. YS Lee acknowledged that he understood what was recorded in English and was comfortable to sign it in 2005 on the understanding of what it obliged Hanhwa Enterprise to do. Further, YS Lee signed the 2009 secret commissions agreement on behalf of Hanhwa Enterprise and acknowledged that he understood what it recorded and was comfortable to sign it on the understanding of what it obliged Hanhwa to do. Further, in 2012 he signed the 2012 secret commissions agreement on behalf of Hanhwa Korea. 2278 Further, YS Lee sent emails in English to employees of Directed. Now he says that when composing them he used a Korean / English dictionary or internet searches to assist him. But if that is true, then with such an aid he was able to read and write and to understand written communications in English. 2279 Further, in the period 2010 to 2016, YS Lee sent emails to Meneses at Meneses' Directed email address advising him of payments of commission made into his nominated bank account. He referenced such payments against invoices issued by Hanhwa Korea and Leemen Korea to Directed and sometimes provided copies of the remittance advices. The emails set out how Lee calculated the amounts based on Directed's purchases from Hanhwa Enterprise and Hanhwa Korea. His English was adequate to communicate in this way with Meneses. 2280 I reject the Hanhwa parties' concerns as to YS Lee's understanding based on his poor written English. And in any event he could have had the relevant document translated and explained to him. 2281 Second, the Hanhwa parties say that the Hanhwa Enterprise Agreement was inapt to the parties' circumstances. It obliged Hanhwa Enterprise to manufacture as per the specifications of Directed. And it required Directed to supply manufacturing procedure instructions, and testing procedure instructions for each Product. But little of this occurred. Hanhwa Enterprise had the design expertise and manufactured to its design. 2282 Now the Hanhwa parties say that the agreement was consistent with a contract manufacturer, manufacturing to the designs of its customer. And if that was so, the express exclusivity clause made some sense. It prevented the manufacture of any Product or similar product for anyone else anywhere else in the world. But the Hanhwa parties say that where that is not the case, as here, the agreement is disadvantageous to the relevant Hanhwa entity, who was the designer and manufacturer of the units. And this is particularly so where the agreement imposed no obligation on the buyer to place any orders whatsoever, either over a defined temporal period or for the life of the express exclusivity term. Further, they say that Directed was not obliged to exclusively deal with Hanhwa Enterprise. In other words, they say that Directed's construction prevented Hanhwa Enterprise from supplying anyone else anywhere in the world with any similar product to that provided previously to Directed, but did not oblige Directed to place any orders at all with Hanhwa Enterprise. Directed was free to deal with other designers/manufacturers. The Hanhwa parties say that the material disadvantage to Hanhwa Enterprise in such a case is manifest. 2283 The Hanhwa parties say that the agreement having regard to its terms was the product of unconscientious advantage being taken of YS Lee, and is liable to being set aside. 2284 Now the Hanhwa parties say that there are only two constructions of the agreement which do not result in unconscientious exploitation of Hanhwa Enterprise. 2285 The first scenario is if its operation in respect of the express exclusivity clause is confined to cases where Directed in fact designed the unit or product and issued technical and manufacturing instructions accordingly; such was the case with the implied term in Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) 225 ALR 57. But they say that is not this case. I should note here that I am dealing with an express term, not an implied term, of the Hanhwa Enterprise Agreement. I will deal with the Hanhwa Korea Agreement later. 2286 The second scenario posited by the Hanhwa parties is if the reference to "similar product" means similar in the sense of being made with tooling paid for by Directed. It is said that this would be a common sense interpretation, is consistent with customary practice and also with the fact that Directed was required to pay for the tooling for the head unit manufacture including for the original 4800 unit and for all head units manufactured prior to the execution of the Hanhwa Enterprise Agreement. 2287 I would reject these alternate constructions largely for the reasons given by Directed. 2288 Let me address various facts and circumstances that existed when the Hanhwa Enterprise Agreement was entered into, which facts and circumstances were known to both parties and constitute relevant extrinsic material and context against which the terms of the Hanhwa Enterprise Agreement should be construed. 2289 By July 2010 Directed had been developing products with Hanhwa Korea for supply to OEMs in Australia and New Zealand for approximately 18 months. It had paid to Hanhwa Korea AUD 227,143 in advance of supply for the tooling for the DIR4800 for supply by Directed to IAL in April 2009. It was in discussions with Hanhwa Korea about the development of other AV units for supply to other OEMs in Australia. In that regard the DIR4850 was in development. This was an AV unit to be supplied by Directed to UD. A further sum of AUD 132,857 was paid to Hanhwa Korea for the tooling for the DIR4850 for supply by Directed to UD in October 2010. A further sum of AUD 315,892 was to be paid in December 2010 to Hanhwa Korea for the tooling for the Orion for supply by Directed to its aftermarket customers. Further, Directed had purchased approximately AUD 6 million of products from Hanhwa Korea and it had spent approximately AUD 2 million in setting up the Directed business and developing, testing and marketing the DIR4800, DIR4850 and the Orion. 2290 Further, in July 2010, Siolis anticipated that Directed would purchase the DIR4800, DIR4850 and Orion from Hanhwa Korea for at least the next 3 or 4 years, continue developing other products with Hanhwa Korea for supply in Australia and New Zealand and other countries, continue expending substantial monies on developing, testing and marketing automotive electrical products for supply by Directed to OEMs in Australia and New Zealand and other countries for many years, continue paying substantial amounts in advance of supply for the tooling for future products developed with Hanhwa Korea for supply to OEMs in Australia and New Zealand and other countries and continue purchasing products from Hanhwa Korea for many years and be paying Hanhwa Korea about AUD 10M per year for such products. 2291 In July 2010, Siolis did not want to continue as set out above without a written agreement between Hanhwa and Directed that provided Directed with exclusivity of supply of those products that Directed had developed with Hanhwa Korea for supply by Hanhwa Korea to Directed and provided Directed with protection for any confidential information it provided to Hanhwa Korea. In that regard representatives of Hanhwa Korea, including YS Lee, by that time were regularly attending Directed's premises, were working with Directed employees on the development of products, were being introduced to OEMs, and thereby had visibility to Directed's plans in terms of new product development and Directed needed to disclose to Hanhwa Korea potential opportunities that Directed had identified for the supply of products to customers. 2292 In July 2010, Hanhwa Enterprise regarded Directed as a very large and important customer. YS Lee said, "[i]n 2010 there was only one model that was developed. And Johnny told me the forecast order with Directed. And, based on what Johnny told me, I personally thought that Directed is going to be a good customer in the future". 2293 On 27 July 2010, the Hanhwa Enterprise Agreement was executed with Directed. 2294 More generally, clearly at the time Directed was a large and growing customer of Hanhwa Enterprise. The agreement was an express written umbrella agreement between the parties, by which Directed engaged Hanhwa Enterprise to provide exclusive manufacturing services to Directed for their specific products. Hanhwa Enterprise agreed to manufacture products in accordance with the specifications of Directed and to supply them to Directed. It reflected the parties' intentions and was consistent with their dealings from the commencement of their business relationship in 2009. Hanhwa Enterprise wanted to enter into a long-term supply agreement with Directed as it wanted to retain Directed's business and reap the anticipated rewards of the long term and potentially very lucrative agreement. 2295 In the setting of these facts and circumstances, the terms of the Hanhwa Enterprise Agreement including the express exclusivity term were not inappropriate to the parties' businesses and their dealings. 2296 In this regard, Hanhwa Enterprise and later Hanhwa Korea was not the sole designer of the units. The units were designed to specifications and with substantial input from Directed and its customer. The express terms of the Hanhwa Enterprise Agreement were therefore consistent with that reality. Further, the units were designed using confidential information provided by Directed to Hanhwa Enterprise and later Hanhwa Korea for the purposes of enabling their design. Further, the restraint in the express exclusivity term is limited to the Product the subject of an order and similar products to that Product. Further, given the relative inputs, investment of time and costs to develop and manufacture tooling for these units by both Directed and the relevant Hanhwa entity and the expected rewards, Directed and Hanhwa Enterprise can be taken to have considered that an agreement embodying those restraints was in their respective commercial interests. 2297 More generally, I would reject the idea that the express exclusivity clause should be confined to cases where Directed designed the unit or product and issued technical and manufacturing instructions to the relevant Hanhwa entity. 2298 Further, I would reject the idea that the express exclusivity clause should be confined to cases where the unit or product was made with tooling paid for by Directed. But I do not need to elaborate further for the moment on this aspect. 2299 Generally, I would reject the Hanhwa parties' unconscionability and construction arguments. 2300 Third, for completeness, I would also reject the argument put by the Hanhwa parties that the express exclusivity clause is contrary to the exclusive dealing provisions in s 47 of the Competition and Consumer Act 2010 (Cth) or is an unreasonable restraint of trade at common law. There is insufficient evidence and little legal foundation to support such an assertion. 2301 Fourth, the Hanhwa parties assert that the relevant Hanhwa entity is immune from any monetary claim by reason of the no liability clause and that any remedy should therefore be confined to injunctive relief which should be refused on public policy grounds including its effect on third parties. Clause 8.4 is a liability exclusion clause to the effect that neither party will be liable to the other or to any other person for, amongst other things, any loss of revenue, or loss of actual or anticipated profits or damages however arising, whether in breach of contract, breach of warranty or in tort, including negligence. But this clause cannot concern non-contractual claims involving statutory causes of action or primary or accessorial liability for breach of fiduciary duty. I do not need to linger further on this given the view that I have taken on novation. 2302 In summary then, I largely reject the Hanhwa parties' arguments concerning the Hanhwa Enterprise Agreement, although this may not matter given my views on the question of novation. Was there any novation? 2303 The novation of the Hanhwa Enterprise Agreement is pleaded in the following terms: On or about 1 June 2012, Hanhwa Enterprise, Directed OE and Hanhwa Korea agreed that thereafter, Hanhwa Korea, as the successor in title of the business of Hanhwa Enterprise, and Directed OE would carry on all of their respective rights and obligations under the Hanhwa Enterprise Agreement. Further, in or about March 2015: (a) Hanhwa Korea engaged in an organisational restructure with the effect that a new entity called Leemen Korea was created, with Hanhwa Korea and Leemen Korea each to focus on different product lines; (b) Hanhwa Korea, Directed OE and Leemen Korea agreed that thereafter, Directed OE on the one hand and Hanhwa Korea and Leemen Korea (in respect of the product lines for which they each became responsible) on the other, would carry on all of their respective rights and obligations under the Hanhwa Enterprise Agreement. 2304 Now on this point I am against Directed. There has been no novation. 2305 Novation occurs when the parties to a contract agree that a new contract is substituted for one that has already been made. Novation involves the extinguishment of one obligation and the creation of a substituted obligation in its place. Intention is necessary to show a novation. And it may be accepted that no narrow or pedantic approach should be taken to the search for the relevant intention to novate, given that one is assessing commercial arrangements (Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at [86] per Sheller, Stein and Giles JJA, citing Upper Hunter County District Council v Australian Chilling and Freezing Co Pty Ltd (1968) 118 CLR 429 at 437 per Barwick CJ). 2306 A novation may be express or implied in the circumstances. Here, Directed says that a novation of the Hanhwa Enterprise Agreement to Hanhwa Korea has occurred by implication and subsequently to Leemen Korea in relation to the provision of accessories. 2307 Now was there novation in the present case of the Hanhwa Enterprise Agreement, such that in essence Hanhwa Korea was substituted for Hanhwa Enterprise and so assumed all rights and obligations of Hanhwa Enterprise? 2308 Certainly there was no express agreement to that effect whether oral or in writing. But was it implied? This is a difficult question, particularly as informal dealings are unlikely to generate a novation. What was the parties' intention(s), objectively ascertained? Further, what consideration flowed from Hanhwa Korea? Was it the undertaking implied by conduct to continue to perform the obligations of the substituted party, Hanhwa Enterprise? 2309 Further, the relevant intention and agreement may be inferred or confirmed by subsequent events and conduct. Did the parties so conduct themselves such that it should be inferred that there was such a novation? Was the parties' subsequent course of conduct so consistent with a novation? Or was it consistent with a new agreement on varying or different terms in addition to the party substitution? 2310 Directed says that the Hanhwa Enterprise Agreement has been novated down the chain. When Hanhwa Korea was incorporated on 7 February 2012, a notification was sent to Directed. Upon its incorporation, Hanhwa Korea carried on the business formerly carried on by Hanhwa Enterprise. This included taking over all the assets of Hanhwa Enterprise as well as meeting its obligations. Further, by way of illustrating the continuation of financial obligations of Hanhwa Enterprise by Hanhwa Korea (as if one and the same business in effect), the 2012 secret commissions agreement was entered into following the incorporation of Hanhwa Korea. It had retrospective operation to 1 July 2009, the date when the 2009 secret commissions agreement with Hanhwa Enterprise commenced. 2311 Leemen Korea was registered and commenced its operations on 9 April 2014. The Hanhwa parties admit that, since about 2015, the accessory side of the business previously carried on by Hanhwa Korea, has been carried on by Leemen Korea. Directed continued to trade with Hanhwa Korea and Leemen Korea in exactly the same way as it had done previously, except that Directed dealt with the two different entities in relation to specific types of products. Accordingly, Directed says that the Hanhwa Enterprise Agreement, in so far as its concerned accessories, was novated first to Hanhwa Korea and then to Leemen Korea. 2312 It is said that based on express notifications by the Hanhwa parties and a consistent pattern of conduct in which the parties continued on as before, the parties' mutual intention was for the terms of the Hanhwa Enterprise Agreement to continue, notwithstanding the change in the identities of the parties. 2313 But as I have said, I would reject Directed's novation argument. 2314 Now Directed asserts that Hanhwa Korea assumed the assets and liabilities of Hanhwa Enterprise from about 7 February 2012 with same to be inferred from the notification sent by Hanhwa to Directed advising of the incorporation of its business, the fact that Hanhwa Korea carried on the business that had formerly been conducted by Hanhwa Enterprise, and the alleged retrospective operation of the 2012 secret commissions agreement. 2315 But I agree with the Hanhwa parties that the 2012 secret commissions agreement is not retrospective. As I have indicated earlier, the reference to "with effect from the date of 0.1 July.2009" which appears in the Hanhwa Korea letter of 12 May 2012 is likely a carryover (in the form of a "cut and paste" or use of a template) from the 2009 letter. 2316 In any event, and even if the 2012 secret commissions agreement had effect from 1 July 2009, it does not amount to Hanhwa Korea generally assuming all rights and liabilities of Hanhwa Enterprise under the terms of the Hanhwa Enterprise Agreement. 2317 Now Directed contends that the effect of a June 2012 notice, and the fact that from that date Directed dealt with Hanhwa Korea, but otherwise the parties continued to conduct their business as before, was that from 1 June 2012, Hanhwa Enterprise, Directed and Hanhwa Korea agreed that thereafter, Hanhwa Korea, as the successor in title of the business of Hanhwa Enterprise, and Directed would carry on all of their respective rights and obligations under the Hanhwa Enterprise Agreement. 2318 Further, it says that after the receipt of the June 2012 email and notices, Directed continued trading with Hanhwa Korea in exactly the same way as it had done previously with Hanhwa Enterprise. All communications were sent, all transactions were done and had with Hanhwa Korea except that, for about a month, purchase orders continued to be sent by Directed to Hanhwa Enterprise, but invoices for those products were received from Hanhwa Korea. 2319 But in my view none of this amounts to the novation pleaded. 2320 Further, Directed contends that Leemen Korea adopted and agreed to supply products on and subject to the terms of the Hanhwa Enterprise Agreement with the consent of Directed. 2321 First, by email sent on 31 March 2015 from Lee to Meneses, Directed was sent a Notification of Change of Company Information on Hanhwa Korea letterhead that Hanhwa Korea had engaged in an organisational restructure with the effect that a new entity called Leemen Korea was created, with Hanhwa Korea and Leemen Korea to each focus on different product lines. Hanhwa Korea was to continue to supply the AV units, but Leemen Korea would supply the accessories to the AV units. 2322 Second, Directed continued trading from 2015 with Hanhwa Korea and Leemen Korea in the same way as it had done previously with Hanhwa Enterprise from 2009, and then Hanhwa Korea from 2012, except that Directed dealt with two different entities in relation to specific types of products. 2323 So, Directed contends that the effect of the March 2015 notice, and the fact that from that date Directed dealt with Leemen Korea in relation to the design and supply of the accessories to the AV units but otherwise the parties continued to conduct their business as before, was that from 31 March 2015, Directed, Hanhwa Korea and Leemen Korea carried on all of their respective rights and obligations in respect of the design and supply of AV units and accessories to the AV units under the terms of the Hanhwa Enterprise Agreement. 2324 But in my view the conclusion does not flow from the premises. 2325 Further, whether the Hanhwa Enterprise Agreement was novated depends upon the intention of the 3 parties to the alleged novation, relevantly here Hanhwa Enterprise, Hanhwa Korea, whose two directors were YS Lee and Lee, and Directed. 2326 But there is no evidence that in the period subsequent to the signing of the Hanhwa Enterprise Agreement, any representative of Directed, much less Min (on behalf of Hanhwa Enterprise) or Lee and/or YS Lee (on behalf of Hanhwa Korea) ever turned their mind to, or referenced the Hanhwa Enterprise Agreement in any way. Indeed, both YS Lee and Lee gave evidence to the effect that they were unaware of the existence of the agreement. 2327 Now notwithstanding Siolis' evidence that he believed that a written agreement existed but that he had forgotten about it, his evidence in that respect is problematic. First, in his affidavit sworn 26 October 2007, Siolis made no reference to the existence of the written agreement. Second, in the letters sent by Directed's solicitors in late 2017 and early 2018, including relating to Hanhwa Korea's determination to cease accepting purchase orders from Directed after 28 February 2018, they made no reference to the existence of the Hanhwa Enterprise Agreement. Third, in the original version of the statement of claim filed in this proceeding, there is no reference made to that agreement. Fourth, in the affidavit sworn by Siolis on 14 February 2018, in support of Directed's application for an interlocutory injunction restraining what it said was the wrong termination of the supply agreement between Directed and Hanhwa Korea, Siolis made no reference to the Hanhwa Enterprise Agreement. In each case, Directed or its representatives asserted that the relevant contractual arrangement between the parties was governed by an implied or inferred agreement. 2328 I agree with the Hanhwa parties that the Hanhwa Enterprise Agreement had been forgotten. That being so, and absent any discussion or reference to it, at or about the time that Hanhwa Korea commenced business, there was no relevant intention on the part of the three parties, Directed, Hanhwa Enterprise and Hanhwa Korea (and later again in 2015, Leemen Korea), that the Hanhwa Enterprise Agreement was to apply to the dealings between Directed and Hanhwa Korea, much less to Directed and Leemen Korea. 2329 I also agree with the Hanhwa parties that there is no basis for me finding that all of Hanhwa Enterprise, Hanhwa Korea and Directed consented to a novation of an agreement that they had either forgotten about or never knew existed such that Hanhwa Korea became bound by the terms of the Hanhwa Enterprise Agreement. And the same point applies with greater force in relation to Leemen Korea, after its establishment in 2015. 2330 In my view there was no novation of the Hanhwa Enterprise Agreement. 2331 Now Directed developed an argument concerning "non-abandonment". But I do not think this really assists. 2332 Directed said that the Hanhwa Enterprise Agreement was not abandoned. To the contrary, it says that the relationship between the parties, including with Hanhwa Korea as successor to Hanhwa Enterprise, continued unabated on terms consistent with the Hanhwa Enterprise Agreement, until after these proceedings commenced. 2333 Directed said that on an objective assessment, based on the conduct of the parties, the Hanhwa Enterprise Agreement was not abandoned by inferred agreement or at all, or by intent no longer to perform the contract. To the contrary, Directed says that the relationship between the parties, with Hanhwa Korea as successor to Hanhwa Enterprise, continued unabated on terms consistent with the Hanhwa Enterprise Agreement. 2334 Now I do not consider that the Hanhwa Enterprise Agreement was abandoned as such. Rather, it simply ceased to have force as a result of the change in entity of the manufacturing entity. There was no formal ceasing of performance by one party which constituted an offer to terminate, which was then accepted by the other party. 2335 This "non-abandonment" argument of Directed went nowhere. Hanhwa Korea Agreement 2336 Directed has put an alternative position to novation. It says that there was an agreement substantially arising from the parties' conduct to a similar effect as the written Hanhwa Enterprise Agreement. This has been described as the Hanhwa Korea Agreement. 2337 The Hanhwa Korea Agreement has been pleaded in the following terms: In the alternative, in the period from about 2009 to date Hanhwa Enterprise, Hanhwa Korea, and since about 2015, Leemen Korea have manufactured and supplied to Directed OE vehicle electronic components and products for sale to OEM customers in Australia and New Zealand pursuant to a product development and supply agreement (Hanhwa Korea Agreement) on the following terms: (a) Hanhwa Enterprise, Hanhwa Korea and Leemen Korea will design, develop, test, manufacture and/or assemble prototypes, samples and finished products of those vehicle electronic components and products which Hanhwa Enterprise, Hanhwa Korea and/or Leemen Korea and Directed OE have agreed to develop in collaboration with each other for Directed OE to supply to its OEM customers (Agreed Products); (b) Directed OE will pay to Hanhwa Enterprise, Hanhwa Korea and Leemen Korea the costs for the manufacture of the tooling to manufacture the Agreed Products; (c) Directed OE will provide future ordering forecasts and written orders for the Agreed Products in writing; (d) Directed OE will pay 20% of the purchase price of the Agreed Products ordered as a deposit at the time of placing an order in writing for the Agreed Products; (e) Directed OE will pay the balance of the purchase price of Agreed Products ordered prior to shipment by Hanhwa Enterprise, Hanhwa Korea and Leemen Korea to Directed OE; (f) Hanhwa Enterprise, Hanhwa Korea and Leemen Korea will not make any undisclosed payments to any employees of Directed OE in order to induce them to order products on behalf of Directed OE from Hanhwa Enterprise, Hanhwa Korea or Leemen Korea; (g) Hanhwa Enterprise, Hanhwa Korea and Leemen Korea will not collude with employees of Directed OE in order to inflate the price of products purchased by them on behalf of Directed OE from Hanhwa Enterprise, Hanhwa Korea or Leemen Korea; (h) Hanhwa Enterprise, Hanhwa Korea and Leemen Korea must use Directed Confidential Information solely for the purposes of Directed OE's business; (i) Hanhwa Enterprise, Hanhwa Korea and Leemen Korea will not: (i) manufacture and/or assemble, market, promote, offer for sale or sell a product to a third party which is: (A) the same as, substantially the same as, or derived from, any of the Agreed Products; and (B) the same as those vehicle electronic components and products which Hanhwa Enterprise, Hanhwa Korea or Leemen Korea had manufactured and/or assembled and supplied to Directed OE. (ii) use any drawings, designs, specifications, master feature lists, GUIs, owner/user manuals, tooling or prototypes, samples and finished products created by either of them for the purposes of the design, development, testing, manufacture and/or assembly of prototypes, samples and finished products of the Agreed Products for any other purposes. (j) Hanhwa Enterprise, Hanhwa Korea and Leemen Korea will give reasonable notice to Directed OE of their intention to terminate the agreement or the supply of the Agreed Products; (k) Reasonable notice under the circumstances constitutes 12 months; (l) The parties will act in good faith to one another in that: (i) they will act honestly and with fidelity to the bargain (being the terms in paragraph 19(a) to (k) above inclusive); (ii) they will not act dishonestly or do any act to undermine the bargain entered into or the substance of the contractual benefit bargained for; and (iii) they will act reasonably and with fair dealing having regard to the interests of the parties and to the provisions, aims and purposes of the contract, objectively ascertained (being the fulfilment of the terms in paragraphs 19(a) to (k) above inclusive). Particulars The terms are in writing and/or implied. In so far as they are in writing, they comprise and/or are evidenced by the written terms of the Hanhwa Enterprise Agreement to which the Applicant refers and relies upon. In so far as they are implied: (i) as to paragraph 19(l), by law as an incident to the contract; (ii) as to the balance of paragraph 19, in order to give business efficacy to the Hanhwa Korea Agreement; (iii) by reason of the nature of the confidential information provided by the parties to each other, including; (A) business opportunities; (B) product development opportunities; (C) anticipated requirements of Directed OE's customers; and (D) marketing strategies. (iv) by reason of: (A) the nature of Hanhwa Enterprise, Hanhwa Korea and Leemen Korea's business; (B) the nature of Directed OE's business; (C) the nature of the Agreed Products and the ordering requirements of the OEM customers for such products; (D) their collaboration and history of dealing in relation to the design, specification, development, manufacture and supply of the Agreed Products throughout the period since 2009; (E) the provision by Directed OE to Hanhwa Enterprise, Hanhwa Korea and Leemen Korea of ordering forecasts for the Agreed Products; (F) the provision by Hanhwa Enterprise, Hanhwa Korea and Leemen Korea to Directed OE of advance notice of difficulties or anticipated difficulties of meeting purchase orders or forecasts for the Agreed Products; (G) the payment by Directed OE to Hanhwa Enterprise, Hanhwa Korea and Leemen Korea for the tooling required to manufacture the Agreed Products: (I) up until 2014 the tooling was paid up front; and (II) from 2014 the tooling cost was amortised across the supply of the product on a per unit basis; (H) the parties' knowledge that it takes approximately 12 months from product conception to design, develop tooling, manufacture prototypes, test and manufacture a product suitable for supply to an OEM customer; and (I) the parties' knowledge that once a Directed OE customer has approved the design of and terms of supply for a particular Agreed Product, the Directed OE customer typically places orders for such product for approximately five years or more. 2338 Now I should say at the outset that I have little difficulty in finding that there was an implied agreement between Directed on the one hand, and Hanhwa Korea and Leemen Korea on the other hand, containing in substance the terms pleaded save for the exclusivity provision at least in the terms pleaded. Further, although I accept that there was an implied term to give reasonable notice of termination, in the circumstances 6 months' notice as opposed to 12 months' notice was reasonable. 2339 Let me address the exclusivity question and say something by way of background. 2340 Directed and Hanhwa worked very closely together in relation to the design and development of the AV units and accessories which Directed supplied to its customers being the OEMs. Directed ascertained the functionality requirements of each customer, worked with the customer on new designs and improvements, and determined and negotiated cost and pricing. 2341 In the course of this design and development Directed entrusted the Hanhwa parties with confidential information about its business, customer relationships and customer requirements. Lee had a dedicated desk at the Directed premises after his move to Australia. He attended internal meetings of Directed employees. Because of this he became aware of commercial business opportunities that Directed was trying to exploit. He was also invited to and did attend meetings between Directed and IAL, at times. He was provided by Meneses with minutes of meetings with IAL which Lee would pass on to Hanhwa Korea's engineering people. 2342 Further, Directed employees provided substantial and significant input on the design and development of the products Hanhwa produced for it. This included identifying the opportunities, negotiating with the OEMs their requirements, reviewing and amending documents, obtaining, testing, approving and revising samples of products. Directed made drawings, created documents and provided information to Hanhwa Korea necessary to enable the supply of the products by Directed to the OEMs, which were its customers, not Hanhwa's. 2343 Further, the substantial and significant input on the design and development of the products and monies invested by both Directed and Hanhwa Korea in product development and tooling was justified by the fact that the typical "life" in which customers will order a particular AV unit or accessories before pursuing an upgrade, was over 4 to 5 years. Both Directed and the OEM specified and approved the precise specification and design and make up of all products and the manufacturer of that product. Directed also paid for the tooling, whether upfront or by amortisation. 2344 Now if, however, Directed wanted to develop a new product with a different manufacturer, it was free to do so. Similarly, Hanhwa was free to develop different products with different clients as it clearly did without issue from Directed. 2345 Let me now address more directly the exclusivity provision and the relevant implied term(s) asserted. 2346 First, it was said that Hanhwa Korea and Leemen Korea would not manufacture and/or assemble, market, promote, offer for sale or sell a product to a third party which was the same as, substantially the same as, or derived from, any of the agreed products, and the same as those vehicle electronic components and products which Hanhwa Enterprise, Hanhwa Korea or Leemen Korea had manufactured and/or assembled and supplied to Directed. I would say now that I reject such a term. 2347 Second, it was said that Hanhwa Korea and Leemen Korea would not use any drawings, designs, specifications, MFLs, GUIs, owner/user manuals, tooling or prototypes, samples and finished products created by either of them for the purposes of the design, development, testing, manufacture and/or assembly of prototypes, samples and finished products of the agreed products for any other purpose. I would only accept this term tied to the use of any under-pinning confidential information of Directed and not more broadly. 2348 Now Directed relies on Gold Peg. But in my opinion, Directed's reliance upon Gold Peg is misplaced. I will return to this shortly. 2349 Further, Directed says that the need for the relevant implied term of the Hanhwa Korea Agreement is borne out by the sums paid by Directed to the Hanhwa entity for tooling to manufacture products to Directed's specification and the steps taken between Directed, the Hanhwa entity and its customers to develop products. 2350 For example, in about October 2010, Hanhwa invoiced Directed for a tooling charge of USD 93,000 for the DIR4850, which Directed paid. In December 2010, Hanhwa and Directed worked on another AV unit called the "Orion". The tooling cost was approximately USD 221,000. Directed was required to and paid for the tooling costs. Directed paid on 14 March 2012 USD 74,000 and on 27 September 2012 a further USD 74,000, totalling USD 148,000 to Hanhwa Korea for the tooling to enable manufacture of the DIR6200. Directed also paid Hanhwa the costs of tooling to manufacture accessories to the AV units. In 2013, Hanhwa also developed, together with Directed, DRLs for supply by Directed to IAL. Directed paid Hanhwa for the tooling (USD 146,500). 2351 In the period 2009 to 2014 Directed made payments to Hanhwa Korea or its predecessor of AUD 1,384,539 for tooling to manufacture the Hanhwa Korea products for Directed to its order. However, from 2014, the practice was that instead of paying upfront for the tooling, Directed paid Hanhwa Korea an additional amount per unit in the price it paid for the Hanhwa Korea products to amortise the cost of tooling. The tooling cost per Hanhwa Korea product since that date was agreed in advance and paid on a sum per unit, which was added to the cost per unit. Siolis estimates that in the period 2015 to 2017 Directed made further payments to Hanhwa Korea of at least another AUD 1 million for tooling pursuant to this arrangement. 2352 Further, the steps taken between Directed, Hanhwa Korea and Directed's customer to develop an AV unit typically takes between 6 to 18 months. The steps undertaken by Directed in the process of development of a proposed new AV unit to be supplied by it to its OEM customers cost Directed on average approximately AUD 750,000 to AUD 1 million. 2353 Further, if the OEM customer approves the product and enters a supply agreement, the initial up-front cost is usually defrayed over a period of about 4 to 5 years, which is the typical period that the particular AV unit is supplied exclusively by Directed before moving to a new design or upgrade. 2354 In summary, Directed says that this level of expenditure and time in development by both Directed and Hanhwa Korea highlights that, in order to give commercial efficacy to their dealings, there must be implied exclusivity terms in relation to the result of that extensive development of the type alleged by Directed. 2355 Further, Directed says that it is inconceivable that Directed would have or should be taken to have engaged Hanhwa Korea to carry out work for it on any basis other than that Directed would be the sole party entitled to exploit the designs and have ownership of all the resultant rights in the designs created. Similarly, it says that it is inconceivable that Hanhwa Korea was at liberty to take the confidential information disclosed to it and the IP developed in conjunction with Directed and use it for itself, including against the interests of Directed. 2356 As I have indicated, I would reject Directed's case concerning the implied term as to exclusivity pleaded. 2357 Now let me say at the outset that there is a distinction between the inference of contractual terms and their implication in circumstances where there is no formal contract between the parties. In Byrne, which I have referred to earlier, Brennan CJ, Dawson and Toohey JJ drew such a distinction between the inference of contractual terms and their implication in circumstances where there was no formal contract between the parties, stating (at 422): …In those cases the actual terms of the contract must first be inferred before any question of implication arises. That is to say, it is necessary to arrive at some conclusion as to the actual intention of the parties before considering any presumed or imputed intention. 2358 Further, McHugh and Gummow JJ relevantly stated (at 442): …[T]he first task is to consider the evidence and find the relevant express terms. Some terms may be inferred from the evidence of a course of dealing between the parties. It may be apparent that the parties have not spelled out all the terms of their contract, but have left some or most of them to be inferred or implied. 2359 Implication of a term gives effect to the parties' presumed intention and is to be contrasted with inferred terms. The latter is a term which the parties actually intended to form part of their contract but did not reduce to writing or clearly articulate orally, thus requiring the court to infer it from the parties' communications. I am dealing with implications in the present context. 2360 Now I have referred earlier in my reasons to principles dealing with implied terms. 2361 In Barker, which I have referred to earlier, Kiefel J observed that (at [85]): …The requirement of necessity for the implication of a term in a contract, or a contract of a particular kind, cannot be brushed aside as "elusive". It is fundamental to the basis for implication. It is not uncertain. It has meaning referred to in Irwin and in Byrne. It has the advantage of providing objectivity to the test employed by the courts. 2362 Her Honour also observed that a term is not necessary in the relevant sense if the contract is effective without it. 2363 In my view, there is no basis for the implication of a term of exclusivity that would bind Hanhwa Korea but would not bind Directed, which on the Directed version of the agreement and in fact, was free to deal with other designers and manufacturers. 2364 Further, as the Hanhwa parties pointed out, the contrast with Gold Peg is clear. 2365 Robert Smith designed and built a continuous cooking system (the DSI cooker), and brought into existence various drawings. He later established Gold Peg International Pty Ltd. Gold Peg commenced proceedings restraining Kovan Engineering from infringing its copyright by manufacturing cookers based on various drawings and among other things claimed that an agreement was entered into which Kovan Engineering had breached. 2366 The trial judge held that there was an implied term of the agreement between Gold Peg and Kovan Engineering that the latter would not make any use on its own behalf and would keep confidential various drawings and also any drawings it created for the manufacture of DSI cookers. Her Honour further held that it was an implied term of the agreement that Kovan Engineering would not use such drawings other than for the purposes of manufacturing DSI cookers for Gold Peg. The term as found was partly oral and partly implied. 2367 Central to her Honour's findings, which were upheld on appeal (see Kovan Engineering (Aust) Pty Ltd & Ors v Gold Peg International Pty Ltd (2006) 234 ALR 241), as to the existence of these terms was her acceptance of the evidence of Smith that when he first approached Kovan Engineering, he said that Gold Peg was the owner of all rights in respect of the DSI cooker, that he had designed the cooking system and he wanted it acknowledged that all rights in the DSI cooker were to belong to Gold Peg. 2368 Now there is no such evidence in the present case. 2369 First, the DIR4800 (formerly the TAR4800) was conceived and designed by YS Lee on behalf of Hanhwa Enterprise and that YS Lee approached Meneses (then working for TechAudio) who took the proposal to Directed with him when he commenced at Directed. 2370 Second, there is only problematic evidence as to the conception of the DIR6200, but on any view the GUI and the rendering were the work of Hanhwa Korea. Further, notwithstanding Siolis' assertions to the effect that the SuperDAVE unit was designed by Directed, the DIR8000 and predecessor units were substantially designed by Hanhwa Korea and its representatives. This is apparent from the technical drawings relating to such products, for example, the technical drawings for the DIR6200 which form part of the DIR6200 PPAP which were prepared by Korean representatives, and the fact that Hanhwa Korea employed a range of engineers each of whom gave evidence as to the conceptualisation, design and manufacturing steps involved in the production of such units. 2371 Third, in the present case there was no similar probative evidence given to the effect of Smith in his discussions with the manufacturer's representative Miller which were foundational to the conclusion in Gold Peg as to the existence of the relevant implied term(s). 2372 Let me make some other points. 2373 First, whilst it is accepted that good faith terms will ordinarily be implied in commercial contracts, the good faith relates to the manner of performance of existing obligations. Here, Directed relies on such a term in the context of the Hanhwa Korea Agreement, not as to the mode of performance of an existing obligation or duty but to create what is in essence a new obligation. Further, it is trite to observe that a good faith term does not prevent a party from acting in its own commercial interest. 2374 Second, Directed says that the Hanhwa Enterprise Agreement contained a restraint in relation to the manufacture and supply of the products (as ordered) or any similar product. The claim of breach arises in relation to the HAU8000 and LM series products and their accessories manufactured or assembled by Hanhwa Korea, and the supply of accessories. 2375 Directed's case is that the HAU8000 and LM series products and their accessories are a "similar product" to the DIR6200 and its accessories. They have the same or similar functionality and purpose. They are supplied to the same customers. They have also been made arising from the instructions given by Directed with respect to the DIR8000. 2376 Further in the case of many of the accessories supplied by Hanhwa Korea to Hanhwa Aus for on-sale to OEMs for use with the HAU8000 and LM series products, these were products "manufactured under this Agreement". It appears clear they have been supplied by Hanhwa to IAL for use with the HAU8000. 2377 Now Directed says that the implied term of the Hanhwa Korea Agreement refers to products "substantially the same as, or derived from and of the Agreed Products", as well as "the same" components, as supplied to Directed. This concept is broader in its terms than the same term in the Hanhwa Enterprise Agreement. And Directed says that it should apply with the same consequence. 2378 But I reject the existence of any such term. 2379 Now because the term does not exist, at least in the wider meaning of the word "similar" sought to be given to it by Directed, it is not necessary to consider this further. But if the interpretation of the word "similar" is given the wide meaning given to it by Directed, which is effectively any AV unit, this is inconsistent with a commercial construction being given to the term. 2380 In summary, I accept that there was an unwritten form of Hanhwa Korea Agreement which contained implied terms imposed on Hanhwa Korea (and also later Leemen Korea concerning accessories) to act in good faith, to not misuse Directed's confidential information and more specifically not to use any drawings, designs, specifications, MFLs, GUIs, manuals, tooling, prototypes, samples etc without Directed's permission which were paid for or supplied by Directed or which contained Directed's confidential information or embodied its intellectual property rights. But I reject Directed's pleaded exclusivity term. 2381 Now Directed has pleaded other terms which I can shortly dispose of. 2382 First, it refers to implied terms concerning not making undisclosed payments to Directed's employees and not colluding with them. This is a lawyer's construct after the relevant facts have become known. I would not imply such terms specifically, although such conduct would place the relevant Hanhwa entity in breach of other implied terms such as to act in good faith. 2383 Second, as to the reasonable notice of termination term, a general term should be implied. But as I will come to, that should be taken to be 6 months in the circumstances and context here. 2384 Third, Directed has pleaded other mechanical terms (a) to (e) which I have set out earlier in terms of its pleaded case. I am prepared to accept these for present purposes. 2385 Now given my principal conclusions against Directed's pleaded exclusivity term, it is unnecessary for me to deal with some spurious arguments of the Hanhwa parties as to whether the terms of the Hanhwa Korea Agreement were unconscionable or unreasonably restrictive on Hanhwa Korea, whatever that then entails. Contractual breaches concerning the HAU8000 2386 The gist of Directed's contractual claims appears to be that Hanhwa Korea was not able to manufacture and supply the HAU8000 to Hanhwa Aus for on-supply to IAL because it was similar to the DIR8000. The burden of its case as to similarity is on comparisons between the DIR8000 and the HAU8000. 2387 Now it is not alleged that Hanhwa Korea was obliged to manufacture and supply the DIR8000 to Directed. And it would require, at the least, agreement on the price of the unit when no such price had been agreed. 2388 Further and in any event, even if the exclusivity term in the earlier Hanhwa Enterprise Agreement somehow applied, there was no order placed by Directed for the DIR8000. The DIR8000 was not a Product and accordingly the exclusivity term would have had no application even if otherwise still operable. Further, neither the DIR8000 nor the HAU8000 were relevantly similar to the DIR6200. I will put to one side the question of accessories. 2389 Now as the Hanhwa parties point out, the alleged implied term in the Hanhwa Korea Agreement uses different nomenclature "Agreed Products" but advances the position no further. The DIR8000 was not in fact an agreed product, in the sense that Hanhwa Korea had agreed to supply it to Directed. There was no agreement on unit price and/or the tooling. Further, no purchase order had been placed for the DIR8000. Indeed, the design had not been finalised and the unit had not been produced, beyond the working sample stage. 2390 Now there is one matter that I should address concerning tooling. The Hanhwa parties say that Directed had not paid for the tooling for the manufacture of the DIR8000 and as such had not acquired distribution rights over the unit. Nor had it agreed to pay for the tooling or agreed on the unit price it would pay for the DIR8000. But I reject the Hanhwa parties' tooling charges arguments in the context of the contractual claims. 2391 First, there is no doubt that the HAU8000 is a similar product to the DIR8000. 2392 Second, I agree with Directed that the fact of having paid or not paid for tooling is not determinative of the right to exploit the product. It may be that the party who pays for the tooling owns the tooling and can control the use of that tooling, but that is not the end of the matter. There are other means at law and in equity available to Directed to control the misuse of its confidential information and business opportunities wrongfully diverted. 2393 Third, non-payment is not definitive on this aspect. 2394 Let me now say something about the DIR6200 in the context of the contractual claims. 2395 Directed's case is that the HAU8000 and LM series products and their accessories are a "similar product" product to the DIR6200 and its accessories (clause 1.3 of the Hanhwa Enterprise Agreement). It is said that they have the same or similar functionality and purpose, and were supplied to the same customers. It is also said that they have been made arising from the instructions given by Directed with respect to the DIR6200 and the DIR8000 and with the benefit of confidential information provided to them by Directed. 2396 Further, Directed says that in the case of many of the accessories supplied by Hanhwa Korea to Hanhwa Aus for on-sale to OEMs for use with the HAU8000 and LM series products, these were products "manufactured under this Agreement" (clause 1.3). These accessories were products manufactured by Hanhwa Korea in accordance with Directed's specifications with the benefit of confidential information provided to them by Directed, and identified in Directed purchase orders to Hanhwa Korea as products that were intended by Directed to be supplied by Directed to IAL for use in conjunction with the DIR8000. These were carryover parts from the bills of materials for the DIR6200 and its accessories. 2397 Further, Directed says that it is clear from the Hanhwa Korea MFLs, component parts lists and comparison sheets and GUIs that it prepared for IAL to compare the DIR6200, DIR8000, HAU8000 and the LM18I to each other, that they are "similar products" (clause 1.3), both in terms of design, function and purpose. They were all developed with the benefit of confidential information provided to them by Directed. 2398 Directed says that the same is the case with the accessories, which were largely common across each of the DIR6200, DIR8000, HAU8000 and the LM18I, most of which were products manufactured by Hanhwa Korea in accordance with Directed's specifications and developed with the benefit of confidential information provided to them by Directed and identified in a Directed purchase order to Hanhwa Korea. 2399 Directed says that the LM units are the DIR8000/HAU8000 with different sized screens and different fascias. The LM units were sold with accessories, most of which were products manufactured by Hanhwa Korea in accordance with Directed's specifications identified in a Directed purchase order to Hanhwa Korea. 2400 Now I have dealt with the relevant comparisons and the similarities (if any) much earlier in my reasons, and I do not need to repeat that discussion here. 2401 But the problem for Directed on the contractual claims is that the Hanhwa Enterprise Agreement is not operative. Further, I have not accepted the implied exclusivity term in the Hanhwa Korea Agreement as alleged by Directed, save and except for the confidential information component. 2402 Further, and putting to one side the accessories question, it is a stretch to assert similarity between: (a) the DIR6200 and the DIR8000/HAU8000; and (b) the DIR6200 and the LM units. 2403 But I do agree that there are similarities when dealing with the accessories. 2404 Now I have not accepted the pleaded exclusivity term, so these matters do not need to be pursued further at least in relation to the contractual claims asserting a breach of the Hanhwa Korea Agreement. 2405 But I do agree that the Hanhwa parties have breached the other implied terms that I have found. Hanhwa Korea has failed to act in good faith towards Directed concerning its dealings with Meneses and Mills, in relation to: (a) the payment to Meneses / OE Solutions of secret commissions; (b) encouraging and inducing Meneses and Mills to breach their employment agreements and statutory and fiduciary duties; (c) the misuse of Directed's confidential information; and (d) the diversion of opportunities. 2406 Further, as I have explained elsewhere, Hanhwa Korea has breached its contractual and equitable duties concerning the misuse of Directed's confidential information. 2407 Let me now turn to a related issue. Knowing inducement of breach of the Hanhwa Korea Agreement 2408 Now where a tortfeasor intends to bring about a breach of a particular contractual provision, it must be established that he knew of the particular provision breached and intended to bring about a breach. 2409 Now Lee said that he was not aware or did not believe that there was any overarching agreement between Hanhwa Korea and Directed much less one that contained the exclusivity term. I would accept that position concerning the exclusivity term but not otherwise. 2410 YS Lee and Lee, as managers and controllers of the Hanhwa parties, had actual or constructive knowledge of the contract for manufacture between Directed and the Hanhwa parties. With that knowledge, they can be assumed to have understood that the terms of such a contract would include the terms that I have found concerning the Hanhwa Korea Agreement. 2411 Such knowledge can be readily imputed from the awareness of YS Lee and Lee of the considerable trading over a long period of time between Hanhwa Korea and Directed, the making of the AV units by Hanhwa Korea for Directed based on Directed's specific requirements and the disclosure of confidential business opportunities by Directed to Hanhwa Korea. 2412 Further, YS Lee gave evidence that he closely consulted Lee on all matters relating to the conduct of the Hanhwa business. 2413 From at least 2012 Directed was clearly Hanhwa Korea's biggest single customer. Lee caused the notification to be given to Directed when Hanhwa Enterprise ceased in 2012 and its business was thereafter to be conducted by Hanhwa Korea, and the notification when Leemen Korea took over the accessories business in 2015. 2414 I agree with Directed that it can be inferred that Lee did know that there was an overarching supply agreement between Hanhwa Korea and Directed. Given their awareness and control, combined with their extensive industry knowledge and experience, the nature of the relationship and their history of dealings between Hanhwa Korea and Directed, in my view, YS Lee and Lee knew of the terms that I have found and intended to induce Hanhwa Korea to breach them. 2415 I reject any suggestion that YS Lee and Lee were not aware that a commercial agreement between a long-term manufacturer and its customer, which they knew had been in place for at least 7 years and involved the manufacture of specifically designed expensive products, with the benefit of confidential information provided to them by Directed for Directed's OEM customers in very substantial quantities, did not include the terms that I have found. 2416 And they were aware that a manufacturer must use confidential information provided by its customer, about commercial opportunities which the customer wants to exploit with the manufacturer's assistance, and about the products themselves, solely for the purposes of the customer's business and must not use it for its own benefit to the exclusion of the customer. Reasonable notice of termination 2417 I accept that in the Hanhwa Korea Agreement there was an implied term that any termination should be on reasonable notice. 2418 Now whether a contract is terminable on reasonable notice instead of at will depends upon the existence of an implied term to that effect, to be determined by the circumstances existing at the date of the contract. 2419 But where a contract is terminable on reasonable notice, the reasonableness of the period of notice depends upon the circumstances existing when the notice is given. The period must be "sufficiently long to enable the recipient to deploy his labour and equipment in alternative employment, to carry out his commitments, to bring current negotiations to fruition and to wind up the association in a businesslike manner" (Crawford Fitting Co v Sydney Valve and Fittings Pty Ltd (1988) 14 NSWLR 438 at 444 per McHugh JA). 2420 Where the contract is a distributorship agreement, a common purpose may well be that the relationship of the parties should continue for long enough after the giving of notice of termination to enable the distributor to recoup any extraordinary expenditure or effort particularly where the expenditure or effort is incurred with the actual tacit authority of the principal. 2421 Now in circumstances where a valuable commercial distributorship agreement for technical products the sale of which locked customers using the products into dealing with the manufacturer for many years, contained no provision for termination and had continued for nearly fifteen years, in Crawford it had not been proved that six months was not a reasonable period of notice. 2422 Relevantly, Priestley JA said (at 440 and 441): The first of these is that once notices of termination were given, one of three possibilities had to come to pass for each distributor: either (i) to leave the particular field of activity, by going out of business altogether, or going into a different field, or (ii) to continue in business partly in the same field and partly in another or others, or (iii) to remain in substantially the same field in direct competition with the appellants' products. The third of these possibilities would present particular problems for both parties; on the one hand the appellants would be continuing to deal with a distributor actively preparing to compete with it, and on the other, the distributor would be continuing to sell products to customers whom it would soon be trying to persuade to buy competing products. Each party to the contract would have conflicts of interest during the notice period which were not present before the notice was given. The same observation would apply, to a lesser extent, to the second possibility. In each situation, it seems to me, the shorter the period of notice, within the limits of reasonableness, the better. 2423 Equally relevantly, McHugh JA said (at 453): It is, of course, unnecessary that the recipient of a notice should do as well in his first years of new business as he did in his old business. The termination of his business, whenever it occurs is very likely to have adverse trading consequences for a substantial period. However, that is the risk which a distributor, who enters into an agreement terminable at any time, inevitably runs. 2424 McHugh JA then concluded: Although the matter is near the borderline, I have come to the conclusion that on the evidence the distributors have failed to prove that the notice given by Crawford was unreasonable. Whatever period was selected, sooner or later the distributors had to undergo the difficulties of commencing new businesses. The six months period enable them to obtain new and significant distributorships which resulted in large earnings in the first year of business. … On balance, I do not think that they have shown that, if they had two years notice or even 12 months notice, they would have been in a better position "to make alternative arrangements of a sort similar to those" which were terminated than they were with six months notice. 2425 Now on 17 November 2017, Hanhwa Korea and Leemen Korea gave notice that no orders for products from Directed would be accepted after 28 February 2018. This was less than four months' notice. But by reason of my orders on 19 February 2018, the effect of that notice was delayed to 17 May 2018, that is, six months' notice of termination. Hanhwa Korea and Leemen Korea then ceased accepting orders from Directed after 17 May 2018. 2426 Directed says that 12 months was the period reasonably required to enable Directed to secure a replacement supplier to fulfil existing contractual commitments, to carry out other commitments, to bring current negotiations to fruition and to wind up the association in a businesslike manner. It submits that the notice given was invalid as a much longer period of notice of termination was required given the following matters. I should say here that I accept these matters but not the conclusion that the period of notice should have been 12 months. 2427 First, there was collaboration and history of dealings between Directed and the Hanhwa parties in relation to the design, specification, development, manufacture and supply of the agreed products over 9 years since 2009. 2428 Second, one had the complex nature of the needs of Directed's customers, which was well known to the Hanhwa parties. Each of Directed customer's AV units and the accessory/component parts was made to the specific requirements of each customer and were not substitutable for supply to another Directed customer. Each of Directed's customers had different functionality requirements for the AV units installed in their vehicles because of the use of different equipment, technology and/or the use of different equipment configurations in their vehicles which necessitated individual design, development and approval processes for each. 2429 Third, there was a lead time of 6 to 18 months in developing those products for supply, which typically involved design and development, the engagement of sampling, testing and modifications, document preparation and obtaining customer approval and the need to determine manufacture and supply costs and profitability over that period. 2430 Fourth, the parties knew that it typically took 12 to 18 months from product conception to design, costing, manufacture prototypes, test and manufacture a product suitable for supply to an OEM customer, prepare documentation and obtaining customer approval and enter a contract to supply to the customer. 2431 Fifth, one had the cost of tooling manufacture, samples and prototypes which was paid by Directed to the Hanhwa parties. 2432 Sixth, the parties knew that once a Directed customer had approved the design of and terms of supply for a particular agreed product, the Directed customer typically placed orders for such product for approximately five years or more before moving to a new design or upgrade. 2433 Seventh, Directed customers typically provided Directed with rolling orders 3 months in advance which varied depending on their forward supply requirements. Directed placed orders with the Hanhwa parties on a back to back basis when such orders were received from the Directed customers. 2434 Eighth, the practice of Directed placing back-to-back orders with the Hanhwa parties to match orders received from its customers, which had been the system and practice for 9 years, did not permit Directed to place orders for the products from the Hanhwa parties more than three months in advance. And typically for AV units the time between Directed placing an order to the Hanhwa parties and delivery was about 3–4 months. 2435 Ninth, the large quantum involved in the payments by Directed to Hanhwa Enterprise and Hanhwa Korea, in the context of the above matters, including the following. The cost to Directed of the development of a new product suitable for supply to one of its customers was on average approximately AUD 750,000 to AUD 1M. In the period 2009 to 2014, Directed made payments of AUD 1,384,539 for tooling to manufacture the products for Directed to its order. In the period 2015 to 2017 Directed made further payments to Hanhwa Korea of at least another AUD 1M for tooling. And in the period 2009 to 2018, Directed paid the Hanhwa parties AUD 136M for the products to supply to the Directed customers. In 2016, Directed paid the Hanhwa parties AUD 31M for products to supply to the Directed customers. In 2017, Directed paid the Hanhwa parties AUD 21M for products to supply to the Directed customers. 2436 Tenth, on 1 December 2017, in response to Hanhwa Korea's request made in writing on 14 November 2017, Directed provided a forecast of Directed's anticipated ordering requirements from Hanhwa Korea for AV units between February and September 2018, excluding existing purchase orders; there was 21,000 AV units for supply to IAL, Hino, Fuso, UD and Mercedes. 2437 Eleventh, in late 2017 Directed paid the Hanhwa parties in advance USD 149,100 to secure the supply of 21,000 CLM7700 units for inclusion in the forecast 21,000 AV units to be supplied to Directed during 2018. 2438 Twelfth, the 28 February 2018 deadline for the placing of orders was not sufficient time for Directed to put such alternative arrangements in place. 2439 Directed says that it was entitled to have sufficient time to find an alternative supplier and to fulfil its commitments to its customers, and that the proposed deadline of final orders by 28 February 2018 was inconsistent with this objective. 2440 Directed contends in the circumstances that 12 months was the period reasonably required to enable Directed to secure a replacement supplier to fulfil existing contractual commitments, to carry out other commitments, to bring current negotiations to fruition and to wind up the association in a business-like manner. 2441 Now by reason of my injunction, Directed was required to place all final purchase orders with Hanhwa Korea by 17 May 2018. This improved Directed's position from where it would have been had the interlocutory orders not been made. But Directed was required to place orders by 17 May 2018 for all products required for supply up to November 2018. But Directed says that it was placed at risk of purchasing stock that might never have been purchased by its customers. 2442 Directed says that because it was required to order stock in anticipation of customer's requirements and without a firm order, Directed was left holding stock which was likely to be unsaleable. 2443 In my view, more than reasonable notice was given by Hanhwa Korea and Leemen Korea because the notice of 17 November 2017 effectively gave 6 months' notice following the orders of 19 February 2018. I should say that it is inutile to consider the notice absent my orders. If it was invalid, it would not sound in any substantial remedy given that the effect of my orders was to allow 6 months, which in my view is reasonable notice. 2444 In Siolis' affidavit sworn 14 February 2018 made in support of Directed's application for an interlocutory injunction restraining Hanhwa Korea from refusing to supply Directed with respect to orders placed by it after 28 February 2018, Siolis deposed: Directed OE has identified other suppliers for the products in Asia being the products then supplied by Hanhwa Korea … and have their first shipment of products ready for delivery to Australia by November 2018. 2445 On 19 February 2018, I made orders obliging Hanhwa Korea and Leemen Korea to accept orders placed by Directed until 17 May 2018. 2446 Directed placed orders up to 17 May 2018 which enabled it to obtain more than sufficient product to meet its orders; in other words, Directed was able to comply with all its obligations to its customers. 2447 In these circumstances, Directed has not shown that the effective 6 months' notice it was given, being a combination of the notification of 17 November 2017 and my orders, was insufficient notice. 2448 First, in my view there is little advanced by way of evidence supportive of the 12 month period. 2449 Second, there is no evidence of unusual expenditure the necessity of which had to be recouped; the only relevant expenditure was the tooling which had been recouped. 2450 Third, I agree with the Hanhwa parties that a term of reasonable notice in excess of 6 months sits uneasily with the notion that Directed was under no obligation at any time to place orders with Hanhwa Korea. Directed was not obliged during the subsistence of the arrangement to place orders at all. It was at liberty to obtain alternative supplies at any stage. 2451 Fourth, by February 2018 Directed asserted that it had secured alternative suppliers that enabled it to fulfil production orders made by its customers in October or November 2018. Coupled with the ability to place orders up until 17 May 2018 in whatever quantities it so chose, Directed achieved the requisite continuity of supply. In other words, it could have ordered and did order more than sufficient product from Hanhwa Korea to enable it to fulfil existing orders and thereafter from November 2018 had sufficient replacement arrangements in place to enable it to supply its customers. 2452 In summary, in my view Directed's assertion that 6 months' notice was not reasonable should be rejected. Contractual position – general 2453 Let me draw some threads together concerning the contractual position. 2454 First, in terms of the substantive causes of action, the Hanhwa Enterprise Agreement can largely be put to one side. It was between Directed and a non-party, and as I have said was not novated. 2455 Second, as to the Hanhwa Korea Agreement, Directed's pleaded terms are too ambitious concerning the exclusivity provision as pleaded. Whatever may be said, it does not satisfy either the BP Refinery test or the Byrne test, the latter being more appropriate in all the circumstances. Such a provision cannot be said to be necessary for the reasonable or effective operation of the Hanhwa Korea Agreement. 2456 Third and in any event, given the bespoke nature of such an implied term concerning exclusivity, it cannot be said that Meneses or Mills had the necessary knowledge or intention relevant to establishing the tort of inducing breach of contract. A similar point can be made concerning the Gridtraq parties. 2457 Fourth, Directed's real case concerns the misuse of its confidential information and the diversion of opportunities otherwise available to it based upon such misuse. In this respect, Meneses and Mills engaged in dishonest breaches of their contractual, fiduciary and statutory duties and the Hanhwa parties were accessories and knowing participants. The Hanhwa parties leveraged off such information and conduct for their own gain. Indeed, it would seem that they encouraged such conduct. 2458 Fifth, clearly the Hanhwa parties leveraged off their participation in developing the DIR6200, the DIR8000 and their accessories in an impermissible fashion by misusing Directed's confidential information. Directed does not need to establish the contractual exclusivity provision to have such a claim. Further, even though some of the new Hanhwa AV units are different in some respects, they are still tainted with such impermissible conduct concerning, inter-alia, the misuse of Directed's confidential information and the Hanhwa parties' participation in the dishonest conduct practised by Meneses and to a lesser extent, Mills. 2459 Sixth, clearly Hanhwa Korea and Hanhwa Aus were entitled to supply new AV units to end-use OEM customers. But only in a way that avoided the impermissible conduct that I have just described. 2460 Seventh, in my view Hanhwa Korea and later Leemen Korea breached their contractual obligations concerning good faith and using Directed's confidential information. 2461 Let me now turn to the diversion of opportunities question and discuss this in more detail. The SuperDAVE opportunity and its diversion 2462 It is convenient to start with a summary of the elements of Directed's case, many of which are not contested. 2463 Now it is not in doubt that in about August 2014, Shanks of IAL, Siolis and Meneses met and agreed that Directed would design and develop a new AV unit and accessories range called the SuperDAVE to present to IAL for potential supply. 2464 Directed told Lee about the opportunity to supply the SuperDAVE (DIR8000) and its accessories to IAL. Directed did this to obtain the assistance of Hanhwa Korea in their design and development for supply by Hanhwa Korea to Directed. 2465 From August 2014 to December 2016 Directed engaged in an iterative development and testing process with Hanhwa Korea to ensure that the new AV unit met IAL's requirements, that it was at a price point that was acceptable and that it was of requisite quality. This also applied to the range of accessories to be supplied with the DIR8000. Directed says that in April 2016, IAL informed Directed that it was happy with the DIR8000 and its accessories subject to achieving a price point. I will address this in more detail later. 2466 As to the work done and information provided by Directed for this purpose, which I accept, the following may be summarised. 2467 First, there were changes requested by Directed and IAL to the DIR8000 and its accessories. 2468 Second, meetings were held between Directed and IAL in which Directed obtained IAL's instructions, which Directed passed on to Hanhwa Korea. 2469 Third, there were meetings between Directed and Hanhwa Korea in relation to Directed's wish list of features and instructions in relation to the AV unit and accessories. Further, Directed was doing testing of the AV unit and accessories installed in a vehicle in Melbourne, Sydney and Alice Springs. 2470 Fourth, an open and close list was created by Directed recording changes or issues requested or identified by Directed and incorporates Hanhwa's comments as to how and when the change or issue was addressed. It was Directed rather than Hanhwa Korea that requested simplification of the icons on the screen, shape of the icons and the inclusion and positioning of certain buttons, which ultimately find their way into the DIR8000 and HAU8000 GUI. 2471 Fifth, there was a tear down report created on 9 December 2015 by one of Directed's qualified engineers following his pulling apart a sample DIR8000 to ensure all of its component parts were of appropriate automotive grade and suitable for the proposed application. Further, there was a CPU change from Samsung Exynox to Nexcell Octa Core. 2472 Sixth, Meneses and Summers visited Hanhwa Korea's premises in Korea in April 2016 and had meetings to discuss the design of the DIR8000 and to assess Hanhwa's manufacturing and supply facilities. 2473 Seventh, Directed also kept Hanhwa Korea informed of the status of its negotiations with IAL in relation to the supply of the DIR8000 and its accessories. Indeed, for example, IAL discussed possible exclusions with Directed in order to meet IAL's pricing imperatives, which Meneses provided to Hanhwa Korea and sought pricing from it to meet. 2474 Eighth, the AV unit and accessories as reflected in the 2015 project proposal incorporated the changes to the unit made at the request of Directed and IAL to that date. The relevant changes were in part as a result of the provision of information by Directed to Hanhwa Korea and in part as a result of developments and changes in parts and software agreed between Directed and Hanhwa Korea. 2475 But by no later than August 2016, according to Directed, Hanhwa Korea took a decision to exploit the DIR8000 with all of its development for itself and to attempt to supply it directly to IAL. It is said that this was recorded in internal Hanhwa documents. And it is also said that this conduct is also consistent with Meneses' and Lee's emails around the time. 2476 Directed says that on 18 November 2016 an agreement in principle was reached between the relevant Hanhwa entity and IAL that it would supply the SuperDAVE directly for AUD 1300 per unit. Lee informed Oh by text and told her to keep this a secret. That the unit concerned was the DIR8000 is confirmed by the Korean language version of the text message; the image is of the DIR8000 and contains a relevant date. The documents also reveal that Meneses had had a conversation with Shanks of IAL that day. Directed says that having regard to Meneses' long standing role as the interface with IAL, it can be inferred that a deal in principle was done between him and Shanks in that call. I will return to this later. 2477 On that same day, by text, Oh asked Lee whether she could provide a copy of the Directed Specification to Dylan Hartley. He authorised her to do so. Directed says that this was in response to Dylan Hartley's request the day before for a copy of the "Isuzu radio protocol" "to finish the integration for telematics". Oh sent the Directed Specification to him that day. I will return to the case against the Gridtraq parties later. 2478 On 18 November 2016 Lee also prepared an MFL for DIR8000. Meneses provided this to IAL on 21 November 2016 and 8 December 2016, together with Directed's cost breakdown sheets for the DIR8000 and its accessories. 2479 On 18 November 2016 Lee also prepared an MFL for the HAU8000 which, by comparison with the DIR8000 MFL, showed them to be identical. 2480 Lee also prepared two quotes for the supply of the AV units. One quote was for the supply by Hanhwa Korea to Directed for the DIR8000 for USD 713 per unit, having previously quoted on 15 August 2016 at USD 660. He sent this quote to Meneses at Directed. The other quote was for the supply by Hanhwa Aus to IAL for the HAU8000 for USD 660 per unit. Hanhwa Korea ultimately supplied the HAU8000 to Hanhwa Aus at USD 650. 2481 Directed says that an available inference from these documents is that Lee engineered the supply prices for the identical unit so as to make it impossible for Directed to compete, thus enabling Hanhwa Aus to win the supply on price. I agree that this is a reasonable inference. 2482 On 20 November 2016 Lee emailed staff informing them that agreement had been reached to supply IAL direct and giving directions to implement the decision. Importantly, a field test was to be carried out in Australia in January 2017 on what can only have been an advanced working sample. 2483 Now Lee denied that this was the proper construction to put on the documents. In the case of the "We won Isuzu for $1300" text, he said that this was a "lie" he told to Oh to "motivate her". But Oh was a capable and motivated employee. His evidence was unconvincing. Further, in the case of the MFLs and differential quotes, he gave unconvincing evidence. In the case of the 20 November 2016 email, he said that this was "the same lie, which is very incorrect to my staff". I reject these false explanations of Lee. 2484 In December 2016 Meneses made a presentation to IAL that Directed says is likely to have been a sham to keep Directed off the scent of Hanhwa's and Meneses' appropriation of the DIR8000 and its opportunity. He knew, whilst Siolis and Tselepis did not, that Directed would not obtain the business. This description of events by Directed in my view is not inapposite. 2485 Now in the period following, Hanhwa progressed the development of the DIR8000/HAU8000 including field testing in Australia in December 2016, which was carried out by Palone, one of Directed's employees. 2486 Now according to Directed, two further elements were required for Hanhwa Aus to successfully supply the DIR8000/HAU8000 to IAL, neither of which it had. 2487 The first element was telematics functionality. Directed says, as is apparent from Dylan Hartley's request for, and Oh's provision of, the Directed Specification in mid November 2016, Gridtraq was engaged with Hanhwa Aus to provide the telematics integration. In December 2016, Lee told Dylan Hartley of his agreement with IAL to supply the DIR8000/HAU8000 direct, that it was "splitting away from Directed" and that it was counting on Gridtraq to provide the telematics. Gridtraq says that this proposal was put to its Board but says that it rejected the proposal. It also says that although it did attempt to integrate its telematics unit (CPU) with the HAU8000, it was unsuccessful in doing so. Directed says that I should reject this explanation. I will deal with this topic in more detail elsewhere. 2488 The second element required was navigation software. Directed says that Polstar was engaged by Meneses and the Hanhwa entity to develop and provide the software. Meneses was intimately involved, and he involved other employees of Directed in testing and providing suggestions. Directed says that there was subterfuge involving Lee, Meneses and Mills to ensure that Siolis and Tselepis, with whom Mohos of Polstar was acquainted, did not discover the goings on. It took 7 months to develop. I agree with Directed on this element of the case. 2489 Directed says that in March 2017 Meneses led Directed into believing that the DIR8000 project was dead and that IAL would continue to purchase the DIR6200. He also told Summers to "box up everything" which included all sample units of the DIR8000 and they were sent off to Lee. These working samples were never discovered by Hanhwa which has meant that comparisons between the DIR8000 and the HAU8000 have had to be done on the documentary evidence. I also note that in July 2017, Meneses told other Directed staff that the SuperDAVE project was on hold and not going ahead until IAL gives the go ahead. This is an accurate description of events in my view. 2490 Directed says that on 30 June 2017 Meneses and Lee presented the HAU8000 and some accessories to IAL. Notes produced by IAL disclosed that head-to-head pricing was discussed comparing the DIR8000, as presented in December 2016, and the HAU8000. As expected, Hanhwa's pricing undercut Directed's. Meneses or Lee told IAL that Meneses was to be employed by Hanhwa Aus from 1 August 2017. This meeting occurred at a time that, even on Lee's and Meneses' version of events, Meneses was still employed by Directed. This is an accurate description of events in my view. 2491 Further, Directed says that on 19 July 2017, IAL formally approved the supply of the HAU8000 and its accessories at a PPC meeting. Two matters are of note. First, the PPC noted that "several key staff … have moved employment to Hanhwa Aus". This is likely to be a reference to Meneses. Directed says that it is an available inference that IAL placed reliance on the false representation that Meneses would start employment with Hanhwa Aus on 1 August. I agree. Second, the PPC minutes record that "Their new product has undergone almost two years of development and testing in anticipation of adoption by IAL." Meneses or Lee had told this to IAL. So, development of the HAU8000, as presented to IAL, had commenced two years earlier. That is, in July 2015. The only such unit in development then was the DIR8000. Directed says that this is further confirmation that Hanhwa appropriated the development work of the DIR8000 and supplied it as the HAU8000. I agree. 2492 In early October 2017, a supply agreement was signed between IAL and Hanhwa Aus. Lee and Meneses signed on behalf of Hanhwa Aus. 2493 It is convenient at this point to recall something more about the supply arrangements. 2494 On 1 June 2009, IAL entered into a written supply agreement with Directed concerning the supply inter-alia of various units. The original agreement was for a fixed two year term, but it was extended from time to time pursuant to the right given to IAL to extend (clause 2.2) for a further one year term(s) by the giving of an extension notice. The last formal notice of extension appears to have been given on 15 April 2014, purporting to extend the term out to June 2016. It would seem that after June 2016, the parties treated the agreement as being on foot until October 2017. After that time, the supply agreement between IAL and Hanhwa Aus took over. 2495 As I have said, in early October 2017, IAL and Hanhwa Aus entered into a written supply agreement. It was signed, inter-alia, by Meneses on behalf of Hanhwa Aus. It is to be recalled that Meneses ceased employment with Directed in November 2017. Meneses represented by his signature that he was a "Director/Company Secretary" of Hanhwa Aus. Lee also signed as a director on behalf of Hanhwa Aus. Lee gave his address as the Brooklyn premises. 2496 The agreement provided for a commencement date of 1 October 2017 and was for a term of 3 years. It could be renewed at IAL's option on a yearly basis (clause 2). The goods to be supplied by Hanhwa Aus to IAL were in essence the HAU8000 and accessories. The unit price was stipulated at AUD 1,512.93. 2497 I should note at this point that if Directed is correct concerning the diversion of the DIR8000 opportunity, one inference open is that it lost an opportunity to supply this unit to IAL for no less than 3 years. This may be a reasonable inference given that IAL was prepared to enter into a 3 year contract with Hanhwa Aus for what at least was the analogous HAU8000. But I should note that Directed says that the lost opportunity was for a 5 year contract with IAL. I will return to these matters later. 2498 Let me now turn to the detail. The detail 2499 Let me recap some of the background matters. 2500 Between 2009 to 2018 Directed was the incumbent supplier to IAL of AV units referred to as the DIR4800 and DIR6200 or the DAVE. The development of these units involved significant investment of time and resources by Directed. Directed was actively involved in all aspects of specifying the features of the AV units, specifying its accessories, and liaising with its OEM customers to ensure that the AV unit and its accessories as designed meets the OEM's requirements. It received multiple samples of the AV units and their accessories for testing. It conducted bench testing, testing of the units and its accessories installed in vehicles and field testing. It provided feedback, design change suggestions, and design requests. The same process occurred with the DIR8000 unit and its accessories. 2501 In 2014, Directed disclosed to Hanhwa Korea the confidential opportunity to supply a new AV unit to IAL to replace the DAVE. This opportunity was shared by Meneses with Lee solely for the purpose of Hanhwa working with Directed to produce the AV unit. 2502 Directed was also the incumbent supplier to IAL of a telematics unit and associated telematics services. IAL offered these services to fleet customers. To be attractive to IAL, the updated DIR8000 had to provide telematics capability and the ability to work with the Isuzu telematics portal. 2503 From late 2014 extending through 2017, Directed pursued a confidential project to supply the "SuperDAVE" to IAL (product code DIR8000). This was a new AV unit and accessories range. The SuperDAVE was intended to replace the DAVE. The project was initiated following a meeting between Shanks of IAL, Siolis and Meneses in late 2014. The project involved extensive communications between the parties on all issues necessary to bring the product to market. Directed employees were heavily involved. 2504 As at August 2015 the design of the DIR8000 had not yet been finalised. Its precise specifications, its accessories and their price had not yet been agreed to by IAL or Directed. 2505 In August 2015 Meneses disclosed to Lee the cost target he was trying to achieve from Hanhwa Korea for supply of the DIR8000 (USD 650) and his target cost to IAL (AUD 1290). This revelation is significant in that the ultimate pitch made by Hanhwa Aus to IAL on 30 June 2016 for the HAU8000 business, achieved Meneses' stated target price to IAL, but undercut any price that Directed could achieve. This was effected by Hanhwa Korea substantially increasing its price previously offered to Directed from USD 660 to USD 713 and by absorbing the tooling costs itself. The Hanhwa parties assert that the HAU8000 was an entirely new unit designed from scratch. But the evidence does not support this. 2506 By late 2015, Meneses and Lee, with assistance from Mills, secretly set about establishing a Hanhwa business to enter the marketplace in competition with Directed. The business came to be conducted through Hanhwa Aus. This conduct involved breaches of Meneses' and Mills' fiduciary and employment obligations to Directed. Lee was aware that this was so. 2507 The secrecy was manifest. In offering Meneses email "aliases", Mills expressed his concern that people might mix up Meneses' Hanhwa Aus email address with his Directed email address; Meneses told Lee as much in an email on 14 July 2016. The work involved all things necessary to commence a start-up: "Hanhwa" email addresses, a corporate logo, business cards, social media pages, promotional videos, marketing materials, and corporate uniforms. Meneses looked after the incorporation of Hanhwa Aus and was later reimbursed by Hanhwa Korea. He was provided with a laptop computer paid for by Hanhwa Aus, and a credit card issued to him by Hanhwa Korea. 2508 The Hanhwa parties admit that around mid-2016, Lee decided to design an AV unit to market to IAL directly through an Australian company, later to be Hanhwa Aus. They further admit that they resolved to use the tooling of the DIR8000/SuperDAVE. The Hanhwa parties say they were entitled to compete because Directed had not paid for tooling costs. They further say they inferred from this that Directed did not want to buy the SuperDAVE. 2509 On 13 July 2016, the plan to divert Directed's business to the new Hanhwa entity, and the need for the secrecy, was openly articulated in an email between Meneses and Lee on 13 July 2016. The diversion of the DIR8000 and its accessories became the first opportunity to be successfully diverted away from Directed in the form a signed contract to supply products. 2510 By April 2016 IAL advised Directed that the design of the DIR8000 and its accessories was generally acceptable, however changes were required to meet its cost targets. However, IAL had not yet committed with Directed to proceed. 2511 Further, there is no evidence of an obligation on Directed to pay for the tooling at that point in the design process nor of any invoice from Hanhwa Korea nor demand for such payment. Further, there was no entitlement for the Hanhwa parties to use the confidential information it had been provided or to take the intellectual property of Directed. 2512 Now Lee conceded that in committing to the tooling at that point in time, Hanhwa was taking the risk that the design of the unit would change, thus rendering that expenditure wasted. He also conceded that there was never any obligation on Directed to pay for the tooling, as Directed had never issued a purchase order for it, as was required by Hanhwa. He also accepted that a liability for the DIR8000 tooling never appeared in its current outstanding remittance reports, by which Hanhwa Korea advised Directed of amounts outstanding. There is no documentary evidence of a demand that payment for the tooling be made, nor did he speak to Floudas, Siolis or Tselepis about this issue. I agree with Directed that as there was no liability to pay for the tooling at that stage, the Hanhwa parties' justification for the diversion falls away. 2513 If, as was the case, the disclosure of the SuperDAVE opportunity was subject to an obligation of confidentiality under the Hanhwa Korea Agreement or in equity, notwithstanding any dispute over the payment for tooling, Hanhwa was not entitled to exploit the opportunity for itself in any event. 2514 On 26 April 2016, Jaffe, Meneses and Tselepis met with IAL representatives. IAL approved the SuperDAVE and its accessories. The parties agreed to work towards a mid-2017 launch. 2515 A matter that came up during the April 2016 meeting with IAL, was that Directed needed a truck to test the DIR8000 steering wheel control. Tselepis and Siolis then told Meneses that Directed should buy a second-hand Isuzu truck to test the SuperDAVE. Instead, Meneses bought the truck himself for and on behalf of Hanhwa Aus. 2516 During the latter part of 2016, Summers engaged in road testing of an Isuzu radio unit using this vehicle, providing feedback. Meneses also caused Palone to engage in extensive testing, together with Shin of Hanhwa Korea, of an Isuzu radio unit using this vehicle. It was an Isuzu truck as it was necessary to ensure that the SuperDAVE or equivalent, with any associated telematics, would work in the real-world. Data from a specific Isuzu vehicle run through the full range of operating conditions was needed to verify that this could be achieved. 2517 In August 2016 Lee announced to Hanhwa personnel that Hanhwa would now be supplying the DIR8000 directly to IAL and that its part number would now change to "HAU8000". This is consistent with an Advanced Product Quality Plan dated 22 May 2017 which shows the evolution of the development of the AV unit and its changed model number. 2518 Lee initially put the position that design on the HAU8000 commenced in March 2017. But he resiled from that position. He and other Hanhwa witnesses put in correcting affidavits which accepted that some conceptual work on the HAU8000 was performed in 2016. Nevertheless, the Hanhwa parties asserted that the HAU8000 was an entirely new unit, the design and development of which commenced in March 2017. 2519 But in 2016, Hanhwa was determined to take over the DIR8000 and rename it the HAU8000. And any design development of the HAU8000 did not start from scratch. 2520 Now Lee's enthusiasm for their new competitive venture, and his recklessness in failing to guard against its establishment becoming known by Directed, was of concern to Meneses. On 18 October 2016, there was the following exchange: Meneses: Ryan, You are making my life very difficult! Please slow down!!! I have to explain fucking why!! STOP sending any emails with those contact details. Lee: Sorry it was my mistake. Thank you and this is why many people is saying we are the A team. 2521 Further, IAL was concerned about progress of the SuperDAVE project. On 15 November 2016, Humphries of IAL emailed Meneses complaining that the mid-2017 start date was in jeopardy and sought a full proposal from Directed that addressed a list of specific requirements. This appears to have led to informal discussions between Meneses and IAL in November 2016, with his "Hanhwa Aus" hat on to secure the deal for it to supply the SuperDAVE directly to IAL. 2522 Further, Meneses told Summers he had pitched to Taylor of IAL the idea of bringing the price of the SuperDAVE down by having Hanhwa supply it directly to IAL. Meneses reported to Summers, "Phil was very happy with that idea". 2523 It would seem that Meneses secured the deal for Hanhwa to supply the SuperDAVE directly to IAL. 2524 On 18 November 2016, Lee had the following text exchange with Oh: Lee: We won ISUZU… Oh: Are you talking about 8000, Mr EVP? Or DEMAX???? Lee: 8000 for 1300 dollars Oh: Mr EVP!!!!!!!!!!!!!! Units only, right?? Accessories are all separate???????????? Lee: Of course. Don't tell anyone. [About four hours later] Oh: Dear Mr EVP, Would it be okay to open our ISUZU protocol information to Dylan?? 2525 Directed contends that "Dylan" means "Dylan Hartley", and that, by this text, Oh sought permission to share with the Gridtraq parties, the Directed Specification, which had been provided in confidence to the Hanhwa parties for testing purposes, to facilitate the Gridtraq parties providing the telematics functionality of the HAU8000 and its role as the Hanhwa parties' new telematics partner. 2526 It is noted that "1300 dollars" is almost the sum that Meneses advised Lee on 27 August 2015 that he was seeking to pitch the SuperDAVE to IAL at and ultimately presented by Hanhwa at the meeting on 30 June 2017 to IAL for the supply of its HAU8000. 2527 Now Lee's text messages with Oh of that day are clear. His evidence that this was "a lie" he told her to motivate her should be rejected. The texts speak for themselves. The documents and events of that day make clear the following. First, the HAU8000 and the DIR8000 were the same unit. Second, Hanhwa Korea intended to quote a higher figure to supply the unit to Directed (USD 710, after having previously quoted USD 660 to Directed) than it would supply it to Hanhwa Aus (USD 650). Third, it intended to supply the unit directly to IAL. Fourth, IAL had agreed to take the supply from Hanhwa Aus at AUD 1300. 2528 Now the Hanhwa parties say that the proposition that 18 November 2016 was when the Hanhwa parties and Meneses secured the HAU8000 at the expense of Directed's DIR8000 and that during the call between Meneses and Shanks on 18 November 2016 Shanks informed Meneses that Hanhwa Aus could supply the HAU8000 directly to IAL, is unsound. 2529 They say that not only does it invite speculation absent evidence from IAL about the call between Meneses and Shanks on 18 November 2016, it ignores the objective facts conveyed by the communications with IAL in 2017. In this respect they have also strongly emphasised the content of an internal email from Shanks to Humphries of 4 May 2017. 2530 Further, they say that the suggestion that the preparation by Hanhwa Korea of the quotation for Directed on 18 November 2016 was a facade to suggest Hanhwa Korea was pursuing the project with Directed in good faith and was created so as to ensure Hanhwa Aus would have the contract to supply the SuperDAVE to Isuzu ignores the fact that the provision of the quotation from Hanhwa Korea to Directed facilitated the quotation from Directed to IAL (and the accompanying MFL), which gave Directed the chance of securing the project for itself. 2531 Further, they say that there is no evidence of the provision of a quotation at that time from Hanhwa Korea or Hanhwa Aus to IAL. 2532 But notwithstanding these points made by the Hanhwa parties, the preponderance of the evidence suggests to me that some understanding in principal was reached at this time between IAL and Hanhwa Korea / Hanhwa Aus concerning the supply of the SuperDAVE. 2533 Now by 8 December 2016, from Directed's perspective it had met IAL's requirements. IAL would seem to have, at least to some extent, approved the design and specifications of Directed's SuperDAVE and its accessories, the MFL, GUI, renderings, cost breakdown sheets and the working samples previously provided and demonstrated to IAL. But the price had not yet been agreed. 2534 I am also of the view that Meneses formulated the Directed price to IAL on 8 December 2016 at AUD 1495 intending it to be substantially more expensive than the AUD 1300 that had been informally raised between Hanhwa Aus and IAL on 18 November 2016, even if that had not been formally agreed between Hanhwa Aus and IAL. 2535 Let me return to a matter that I have just adverted to. An internal IAL email from Shanks to Humphries of 4 May 2017 stated the following: Simon, Cost from Directed for the new multimedia system is $1490.00 which includes tooling amortisation over 21000 units of $20/unit. Cost of the current audio is $986.00. Both costs are worked out at the same exchange rate so there is no room to reduce the cost by exchange rate. I think the best way to present this is to target the new audio at say $1100.00 (or $1150.00 if you can stretch it) and we have to meet that and sell the benefits over the current. The new audio will never match the current price who ever supplies it. Attached is the MFL from Nov 2016, I suggest this is outdated as it assumes Directed Telematics interface, also the Digital switching people are asking for inputs??? Also the listed accessories need to be considered TPMS, cameras etc. (See attached file: SuperDAVE Master Feature List as of Nov 2016.xlsx) Steering wheel remote from Directed is $112.82 which includes tooling amortisation over 2000 units at $10/unit and an obsolescence fee of $5/unit for the old remote. The $15.00 will be removed after 2000 parts. The remote pricing looks okay. I suggest you don't mention the new accessories at this stage. I left a message for you to call, when you can we should discuss. 2536 Now the Hanhwa parties say that this email contradicts two elements of Directed case. 2537 The first element is that by 8 December 2016, Directed had met IAL's requirements, aside from which is conceded to be the failure to agree on price. But as to this, in my view this email does not substantially undermine the thrust of Directed's point. 2538 The second element is that the deal between Hanhwa Aus and IAL to supply the HAU8000 with IAL was confirmed and approved on 18 November 2016. The Hanhwa parties say that if IAL had locked away a deal with Hanhwa Aus on 18 November 2016, why were Shanks and Humphries engaging in this communication on 4 May 2017? Much less why did Lee and IAL's representatives engage in the correspondence in 2017? But in my view this may negate an earlier concluded detailed deal between the parties, but it does not negate any earlier informal understanding. 2539 Let me return to the chronology. 2540 Hanhwa Korea's 2017 business plan dated 15 December 2016 recorded its "self-supply" of models including the HAU8000, and identified Australia office personnel as including Meneses and Mills. 2541 On 8 December 2016, Allen Hartley sent an email to his business partners, Thibaud, David Keightley and Davidson: We are now at the point where as Quantam we need as Directors to please discuss and evaluate [an] opportunity and to decide a way forward. Hugh, we also need you to meet with Ryan as he needs reassurance of our commitment [and] ability to deliver. Dave, we need you to head up the integration and connectivity requirements of the first phase of [the] project, and to also coordinate a meeting in Korea at the point that everyone is comfortable [regarding] delivery and we are ready to develop a telematics board to go into their head unit. Please can we discuss this at today's meeting as we really need to go back to Ryan with our feed[back]. Hanhwa is currently splitting away from Directed Electronics and they are counting on us being [able] to deliver the telematics component, and they want Quantam to partner with them going forward in [the] various markets that they are active in. 2542 Directed says that the reference to "their head unit" should be taken to mean the SuperDAVE. 2543 In December 2016, the Gridtraq parties prepared a document for its related entity, Quantam, called "Quantam Telematics Opportunity". It set out what was required to help Hanhwa Aus pursue the "Super Dave" with IAL; the reference to "CPU" should be taken to be to the RA7000 telematics unit and the "New Radio" to the HAU8000. It stated: HANHWA want to demonstrate Telematics using the CPU connected to their New Radio. The Radio is being presented to Isuzu in January – launching with the N Series Model. They expect the volumes to be 12,000 to 15,000 units per year across the range. Full production and supply of this new radio "Super Dave" is to be May 2017. For their demonstration in January to Isuzu they require the CPU connected to the Radio to perform the following: Messaging Driver ID Telematics including CAN Data They want the telematics component, added telematics services and support of the program to be priced and supplied by Gridtraq. 2544 Now in early 2017, and as I have earlier detailed elsewhere in my reasons, prior to his departure from Directed to join Hanhwa Aus, Mills in conjunction with Meneses facilitated the wholesale appropriation of Directed's confidential information and copyright works to assist this and other projects. 2545 Now as at January 2017, and I might say later, the desire for Hanhwa Aus to demonstrate a working sample of the HAU8000 to IAL with navigation and telematics functionality required, so Directed says, two things that Hanhwa did not have. First, a telematics unit and telematics expertise. This delves into a contentious area which I will discuss later. Second, mapping software. It obtained that ultimately through Polstar, although at first it contemplated seeking supply through NavNGo. 2546 On 31 January 2017, Mills provided Meneses with information concerning Directed's pricing from NavNGo for navigation software. 2547 Now from February 2017, in addition to already having had Directed employees Mills, Summers and Palone working on tasks for Hanhwa's benefit some time earlier, Meneses and Lee started soliciting these and other Directed staff to resign from Directed and to work for Hanhwa Aus at the Brooklyn premises. 2548 Further, Meneses then took active steps to ensure that Directed ceased work on the SuperDAVE and communication with IAL. 2549 On 16 March 2017, Meneses told Summers that the SuperDAVE project was not going ahead. Summers was told to box up all the materials and prototype units and accessories and give them to Meneses, which he did. Meneses said something similar to Pieries. The next day, Meneses put off a representative of NavNGo who had sought information about the progress of the "DIR-8000 Android project". Meneses then told Siolis that the SuperDAVE project was not going ahead and that IAL would simply continue purchasing the DAVE. Meneses told Siolis he had informed Directed to stop work on the project. At Meneses' request Summers loaded up all the SuperDAVE prototypes and other hardware onto an Isuzu truck and into the boot of Meneses' car. 2550 Further, the regular contact of Jaffe, a business development manager at Directed who reported to Meneses, with IAL virtually ceased. 2551 Now as I have said, the Hanhwa parties did not yet possess all the documents and information they required to offer their competing products and services within the required timeframe. It was Directed that had the customer relationships, knew the customers' bespoke requirements, and which had created essential documents to enable supply, for example, to IAL. And as I have said, in about February or March 2017, prior to Mills' departure to Hanhwa Aus, Mills and Meneses engaged in wholesale downloads of Directed's confidential information and copyright works. 2552 Meneses also asked Vardon for a copy of Directed's software it had developed for obtaining CAN Bus data using its CAN tool. Vardon acceded to this request. He also asked Vardon to upload all of Directed's CAN Bus Data into the cloud, but Vardon thought this odd and did not do it. 2553 In May 2017, Meneses instructed Summers to provide him with "a complete copy of everything in the K Drive", which he did. The PPAP, critical to the supply of an AV unit to IAL, was on the K drive. 2554 The Hanhwa parties, with the help of Meneses and Mills and the information they took from Directed, now had the necessary documents and information to create and market to IAL its competing products including the HAU8000 to IAL. 2555 Further, on 12 May 2017, Mills, who was now at Hanhwa Aus, copied Lee into an email to a digital marketing specialist with the following request: Could you please urgently dumb down the holding page for www.hanhwa.com.au. Please remove the Hanhwa logo, remove reference to Melbourne, Australia in the text. Also if you can, blur cover or chop out the Isuzu logo on the steering wheel. We are not ready to tell the world yet that we are setting up shop in Melbourne. Our Australian distributors do not know we are setting up and we need one or two months breathing space before letting the cat out of the bag. 2556 Between 10 April 2017 and 8 August 2017, various MFLs containing head-to-head comparisons between the DIR8000 and the HAU8000, were provided to IAL. Hanhwa made these comparisons because the design and specification of the DIR8000 and its accessories had been approved by IAL when presented by Directed. These documents show that the HAU8000 was the DIR8000 with minor evolutionary developments and that the accessories for both units were exactly the same. 2557 On 30 June 2017, Meneses and Lee made a presentation of the HAU8000 to IAL. At the 30 June 2017 meeting the following pricing was discussed: Current DIR6200 Directed 8000 HAU8000 (DAVE) (SuperDAVE) (SuperDAVE) AUD 986 AUD 1495 AUD 1292 Navi Navi (now) AUD 298 AUD 278 As accessory AUD 220 Std fit AUD 1284 AUD 1512 2558 The Hanhwa price for the HAU8000 was two dollars more than the price that Meneses advised Lee on 27 August 2015 that he was seeking to pitch the DIR8000 to IAL if he could get supply of the AV unit from Hanhwa at USD 650 with the tooling cost amortised over 10,000 units. Hanhwa Korea supplied the HAU8000 to Hanhwa Aus at USD 650. 2559 Meneses had clearly presented Directed's price to IAL on 8 December 2016 (AUD 1495) intending it to be substantially dearer than he advised Hanhwa would supply the unit directly to IAL. 2560 I have touched on the 30 June 2017 meeting elsewhere, but let me at this point say the following. 2561 Now Directed invites me to reject Lee's evidence that Meneses only attended at the end of the meeting. But the Hanhwa parties say that there is no contrary evidence. And they say that nor is it appropriate to reject Lee's explanation that the Directed price of AUD 1495 was not discussed at the meeting. 2562 They say that no one from IAL, much less the maker of the handwritten note, has been called. They say that the document is not minutes of a meeting at all but notes taken by a participant in the meeting. They say that it is more than possible that Lee pitched the Hanhwa Aus product and price and that the IAL representative wrote it down on the piece of paper and also wrote down what he knew was the Directed proposed price of 8 December 2016, but Lee did not know. 2563 They also say that there is good reason why IAL did not tell Lee of the Directed price. Had it done so, Lee would have known the Directed price and could have later adjusted his price upwards accordingly but still beating the previously offered Directed price. 2564 In any event, they say that at its highest, the note permits the possibility that IAL disclosed that information to Lee. But if that occurred, then it reflects the fact that such price information was not confidential and that the disclosure was by IAL. And they say that the fact that this discussion occurred at all including as to price is inconsistent with Directed's case theory that Meneses had secured the HAU8000 contract for Hanhwa Aus. 2565 I disagree with the Hanhwa parties' arguments. There is an air of unreality in their position. The likely position was that the price information was discussed and that misuse of Directed's confidential information had occurred. 2566 Further, less than 3 weeks later, with no further inspection of working samples or road testing, IAL confirmed to Hanhwa that it would be on-supplying the HAU8000 and its accessories. This demonstrates that the HAU8000 was not designed independently of the DIR8000, but appropriated the design and development work that had previously been done by and for Directed. Let me continue with the chronology. 2567 On 28 July 2017, Summers and Meneses received an email from Reidie of Directed NZ, following an enquiry from Reid of Isuzu NZ. Reidie asked for the timelines of "these units", which was a reference to the SuperDAVE. Meneses again misled a Directed employee and responded: We have submitted a proposal to IAL back in Nov 2016 regarding new audio and other accessories. They have not agreed to do anything at this stage, so the project is on hold until further notice. Directed will ONLY go ahead with this project until IAL give us the go ahead. If my staff have given you the wrong impression I am sorry. You should NOT pass any information to your customers in NZ until the product is available in the Australian market first. Sorry. Thanks. 2568 In September 2017, Meneses asked Jaffe for Directed's PPAP information for all products Directed supplied to IAL in the last 12 months. Jaffe acceded to the request. At the time, he thought the request was odd. Meneses had not asked for such information before. 2569 In early October 2017, unbeknown to Directed, Hanhwa Aus formally entered into a supply agreement with IAL for the HAU8000 and accessories. It was signed by Meneses and Lee as directors of Hanhwa Aus. 2570 Let me now say something more concerning the RA7000. Given that the RA7000 telematics unit has come up in the context of the HAU8000, it is worth saying something further at this point. The RA7000 – IAL dealings 2571 Directed says that the Gridtraq parties, with assistance from the Hanwha parties and Meneses, sought to exploit other opportunities received by Directed with the supply of the RA7000 telematics unit and the RA7000 AV unit. 2572 It is said that in 2015, the Hanhwa parties and Gridtraq parties pursued together a joint project or joint venture to develop a standalone AV unit with telematics and tyre pressure monitoring functionality. Designed to be mounted on the dashboard of vehicles, it was known internally as the RA7000 or the safety screen. It remains under development and has not been released to market. Hanhwa has been responsible for all technical aspects. 2573 It is said that the Gridtraq parties have helped determine the safety screen's specifications and functionality, as well as, they say, developing the protocol interface between the safety screen and its telematics unit. 2574 It is said that the Hanhwa parties and Gridtraq parties marketed the RA7000 to potential customers in Australia including IAL. 2575 On 25 September 2017, Allen Hartley, Davidson and Dylan Hartley presented to Cooper at IAL a proposal. 2576 Directed says that in the written presentation, Gridtraq represented to IAL that the RA7000 telematics unit could connect to and operate in conjunction with the HAU8000. Directed says that Gridtraq had tested and satisfied itself of this fact. Further, Directed says that Gridtraq represented that it had developed a specification for communication between the RA7000 telematics unit so it could connect to and operate in conjunction with the HAU8000. I should say now that I have rejected this part of Directed's case, which I will discuss in more detail when I get to the claims against the Gridtraq parties. But let me note the following concerning the Hanhwa parties. 2577 Directed also relies on a purported admission by Lee, who had not seen the 25 September 2017 presentation, was not its author and did not attend the meeting, in support of a suggested finding that the Gridtraq parties had achieved integration of the Gridtraq telematics unit with the HAU8000. But the cited reference does not support the proposition asserted and in any event is devoid of context. Lee was merely being asked to comment on a document shown to him on a screen which was not his document. Further, the purported concession relates to nothing more than the content of the document as then shown to Lee. The document itself is a marketing presentation. Lee also gave the following evidence: WISE QC: And I want to suggest to you, sir, that the only way that Gridtraq was able to tell Isuzu that it could achieve this integration was because they had, together with Hanhwa, connected and integrated the RA7000 telematics unit with the HAU8000. That's correct, isn't it? LEE: That's incorrect. On my MFL to Isuzu, I say on telematics section, we say we can develop any third party. This is one of the option that we have to offer which is from the Gridtraq parties but we haven't developed or we haven't approached to combine the units. We didn't. 2578 I should also note the following. 2579 On 18 September 2017, in an internal IAL email Humphries emailed Shanks and said: Last week, Hanhwa Australia provide Ian and I with an overview of the SatNav features that are being updated for the Isuzu Command Centre. The Tier 2 supplier to Hanhwa (Zoltan From Polstar) has developed some unique features for the SatNav that will be launch with VC43 FX & FY models in 5 weeks, and at this stage, with the ICC when it is rolled out to other Isuzu models next year. NOTE: Hanhwa Australia has no plans to develop a Telematics solution for IAL; they are already aware we have an option from Directed (of course!), but may be pursuing other options. They don't know that one of our options has integrated SatNav with truck features. 2580 On 3 October 2017, Cooper of IAL emailed Dylan Hartley and said: Thanks for coming in and presenting last week – we all appreciated the insight brought to the table. Given the increasing transience of the space, Isuzu is taking a considered and long term view (as an OEM) to ensure our connected proposition aligns with our position as Australia's leading commercial truck brand. As such, we believe the capability and requirements we've identified to achieve the above are not in keeping with the proposition put forward by Gridtraq. Again we thank you for your time, and it goes without saying that our conversation and any material shown will be held in utmost confidence. 2581 So various propositions can be synthesised, and all in a context where in early October 2017 Hanhwa Aus and IAL entered into a supply agreement for the HAU8000 unit. 2582 First, the Hanhwa parties had no independent telematics expertise. So, in order to provide a telematics option, they had to partner with an organisation which had such expertise, relevantly here either Directed or the Gridtraq parties. 2583 Second, the Hanhwa parties did not partner with Directed with respect to the provision of telematics connectivity in connection with the HAU8000/ICC unit. 2584 Third, the Hanhwa parties did not partner with Gridtraq in connection with the supply of the HAU8000/ICC unit in connection with the provision of telematics connectivity. 2585 In summary, in my view the HAU8000 was not supplied to IAL with the relevant telematics connectivity, contrary to the assertions of Directed. Now Girgis was of the view that the RA7000 telematics unit was successfully connected to the HAU8000. But in my view his evidence on this aspect was speculative and I have not accepted it. I have dealt with his evidence elsewhere. 2586 Now Directed also says that it should be inferred that Gridtraq used the Directed Specification to connect the RA7000 telematics unit with the HAU8000. It says that it should also be inferred that the specification for communication between the RA7000 telematics unit and the HAU8000 referred to in the Gridtraq presentation to IAL is the Directed Specification or a specification created by reference to the Directed Specification. But I am not prepared to draw these inferences. I will elaborate later on such matters when I discuss in detail the case against the Gridtraq parties, which in my view has largely failed. 2587 Further, the suggestion that Lee's explanation for the provision of the Directed Specification to Dylan Hartley on 19 December 2017 should be rejected and that likewise Dylan Hartley's evidence was deliberately obfuscatory is not made out. IAL had no interest in Gridtraq's services after 3 October 2017. 2588 Let me at this stage say something more about the navigation software. Polstar navigation software 2589 The Polstar navigation software for the HAU8000 was developed with the assistance and input from Meneses, and by Meneses involving other Directed employees such as Summers and Palone. This assistance addressed the specific requirements for truck navigation software and IAL's particular requirements in that regard. The Polstar software was tainted by reason of this involvement. According to Directed, that it took 5 – 6 months to develop is significant. 2590 Further, Polstar software was used for mapping in subsequent AV units exploited by Hanhwa Aus. The short timelines for the development of those units, with Polstar mapping software, means that the Polstar software developed for the HAU8000 was merely modified to suit those subsequent units. Each such modified version was as tainted as the original. 2591 Meneses' involvement is apparent from, inter-alia, Mohos' written acknowledgement to Lee on 27 April 2017 that he would not discuss Polstar's engagement with Hanhwa with anyone from Directed other than Meneses. 2592 Now any AV unit offered to IAL in competition had to have navigation software, which is loaded onto the AV unit via an SD card, USB or DVD. Further, it was necessary to ensure that the navigation software was customised to the needs of trucks and the specific needs of IAL or other particular customers. 2593 The Hanhwa parties selected Polstar as its navigation supplier. Directed's existing navigation software supplier was NavNGo. 2594 The Polstar representative the Hanhwa parties dealt with was Mohos, who had left NavNGo in early 2016. He knew Directed representatives such as Siolis and Meneses well, having dealt with them previously when at NavNGo. He had been keen to acquire Directed's business, which led to some ongoing discussions with Directed, but they did not eventuate. 2595 From at least 27 April 2017 Mohos became aware that the Hanhwa parties were pursuing the SuperDAVE to the exclusion of Directed. In an email exchange with Lee, Lee told Mohos that he should not speak to Siolis about Polstar's engagement with Hanhwa. Mohos observed (copied to Mills and Meneses): I met Johnny last week who told me that you will take over the projects and now we also have real dilemmas and details to discuss so, of course, I will fly in…Don't worry, I don't talk to Steve. I do talk to Johnny but that should not be a problem, I guess. 2596 During April to June 2017, at the request of Meneses, Summers at Directed reviewed and provided information and advice to Mohos about what was required to enable the Polstar software to be suitable for Australian roads, conditions, legislation and Directed customer requirements. The information was specific. It included data points and the information IAL needed for navigation software suitable for its vehicles. 2597 In early June 2017, Summers and Mohos undertook a three-hour drive in Melbourne to evaluate and provide detailed feedback on the Polstar navigation software. Specific changes to make it suitable for IAL were recommended. A list of tasks for Polstar was drawn up. 2598 All of this work was done by Directed's employees, at the direction of Meneses. This work was not for the benefit of Directed. 2599 On 31 January 2017 shortly before his departure from Directed, the information Mills provided to Meneses, which was copied to Mills' personal email address, included Directed's pricing for navigation software. 2600 In the pitch to supply the HAU8000 to IAL, Directed's price to IAL for the NavNGo navigation software (AUD 298) was referenced. The HAU8000 was offered with the Polstar navigation software at AUD 220 (standard fit) and AUD 278 (as accessory). This was informed by the unauthorised use of Directed's confidential pricing information. 2601 Support for Directed's position is also provided by Lee's 27 November 2017 email when he updated Mohos of Polstar and copied this to Meneses, conveying Hanhwa Aus' intention to exploit Meneses' relationships with truck customers, and pursue all of them to the benefit of Hanhwa Aus. 2602 Polstar's importance stems from the use of its navigation software in the HAU8000 and in the later LM series. According to Directed the significance of Polstar to the overall product, and the need for secrecy, are important in establishing wrongdoing. 2603 This same Polstar software was used for mapping in subsequent AV units exploited by Hanhwa Aus. The short timelines for the development of those units, with Polstar mapping software, means that the Polstar software developed for the HAU8000 was merely modified to suit those subsequent LM units. 2604 Now the Hanhwa parties appear to accept that communications between Lee, Mills, Meneses and Mohos related to using Polstar as the navigation provider for the HAU8000. But Hanhwa submits that there was no use of confidential information in the development of the navigation software and that it has not been shown that Lee had relevant knowledge or brought about Meneses' and Mills' conduct to make him or Hanhwa parties liable as accessories. 2605 But Lee's involvement is demonstrated by the documentary evidence and his active involvement with Meneses in ensuring secrecy, and also in the knowledge that some of this conduct was occurring whilst Meneses was employed by Directed. 2606 But with respect to the selection of Polstar as the navigation supplier, I do accept that Mohos, now at Polstar, was developing a rival navigation product for potential supply not just to Hanhwa but also to Directed. There is reference to confirmation by Siolis from Directed that Polstar was pitching navigation services to Directed as well as to Hanhwa Aus. But this doesn't substantially assist the Hanhwa parties. 2607 In my view, the Hanhwa parties were knowing assisters in Meneses' fiduciary breaches, involved in his statutory breaches and inducers of Meneses' breaches of his employment agreement. Such breaches were actively induced by, and participated in, by Lee and the Hanhwa parties. There was secrecy and deception involved as between Meneses and Lee in their dealings with Mohos and the need not to let Siolis know of their conduct. 2608 Let me now say something more about the tooling, although I have touched on this elsewhere. Tooling 2609 The Hanhwa parties assert that Directed's failure to pay for the tooling for the DIR8000 meant that Hanhwa could pursue the opportunity itself. But I reject this justification. 2610 First, to Hanhwa's knowledge, final acceptance of the design and the product had to be obtained by Directed from IAL before tooling could be carried out. This stage of development had not been reached before Lee committed to tooling expenditure in July 2015 and deciding to divert the supply to Hanhwa Aus in July 2016. 2611 Second, Lee conceded that he had never received a purchase order for the tooling. So, Directed was not obliged to pay for the tooling. Further, Lee had never demanded payment for the tooling as an outstanding obligation. 2612 Third, there were emails between Meneses and Lee in January 2016 which record that Hanhwa needed a purchase order from Directed before there was any commitment to pay for tooling. 2613 Fourth, Hanhwa's December 2016 business plan reflects that Hanhwa's sales to Directed, both in terms of number of units and dollars, continued to rapidly increase year on year and that sales to Directed continued to make up the vast majority of Hanhwa's total sales. YS Lee conceded that a tooling charge is not really a significant expense in the scheme of things. I agree with Directed that having regard to the volume of business, and the relative insignificance of tooling charges, this defence of the Hanhwa parties is a flimsy ex post facto justification. 2614 Fifth, Hanhwa's 2017 business plan for Australia reflected on matters from 2016. It did not record that there was any problem or issues with Directed not paying for tooling for the SuperDAVE. Rather it noted that the issues related to fixing software debugging and software and circuit design related issues found during the first field tests conducted between 12 and 17 December 2016. 2615 I should now say something of the relevant similarities between the various units, a topic which I have to some extent discussed previously. The question of similarities 2616 The Hanhwa parties rely on various alleged differences to avoid the conclusion that the DIR8000 and the HAU8000 are the same unit. But none of those alleged significant differences are sustainable. 2617 First, as to the different CPUs, several Hanhwa witnesses including Lee maintained that a fundamental difference between the DIR8000 and the HAU8000 was that they used a different CPU. They gave evidence that this difference fundamentally affected the hardware and software design of the units. In truth, there was no difference in CPUs. Girgis' evidence is that they both specified the Exynos octa-core chip. 2618 Lee's exhibit KL-11 contained a misleading comparison of what was said to be the DIR8000 to the HAU8000. It contained this assertion about different CPUs. The "corrected" version of this exhibit continued that assertion. 2619 In fact, the DIR8000 in its stage of development as at 11 November 2016 was identical to the ultimate and final design of the HAU8000. So much is clear from a significant concession by Lee. 2620 Lee conceded that had Directed paid for the tooling, then the unit Hanhwa would have delivered was a unit, the rear of which was depicted in a line drawing dated 11 November 2016. This line drawing can be compared with the rear of the unit depicted as the HAU8000 in exhibit KL-11. The depictions of the HAU8000 are identical to the 11 November 2016 line drawing. 2621 For completeness, an amended version of exhibit KL-11 was included in Lee's correcting affidavit as exhibit KL-56. The depictions of the DIR8000 in exhibit KL-56 do not reflect his evidence as to the 11 November 2016 depiction. 2622 Second, as to the different operating systems, several Hanhwa witnesses including Lee maintained that a fundamental difference between the DIR8000 and the HAU8000 was that they used a different operating system. The DIR8000 used Android Automotive version 4.1.2 as its operating system, whereas the HAU8000 used Android Automotive version 5.1.1. 2623 But there was no difference in their operating systems, according to Girgis' evidence. It is to be noted that Hanhwa Korea's MFL comparison document records that the DIR8000 and HAU8000 used the identical operating system: Android OS Automotive 5.0. 2624 Third, as to the different GUIs, Hanhwa witnesses also claimed that the GUIs for the DIR8000 and the HAU8000 were fundamentally different. Lee exhibited examples in exhibits KL-11 and KL-56 of what he said were the respective GUIs. What he exhibited as the GUI for the DIR8000 was an earlier iteration which was subsequently further developed. 2625 Girgis compared the GUI documents for the DIR8000 as at 18 December 2015 and for the HAU8000 as at 5 April 2017 and they appear to him to be almost identical. 2626 What is clear is that the GUI for the DIR8000 as at 18 December 2015 is very similar to the GUI for the HAU8000 as at 5 April 2017. It is to be noted that the GUI for the Main Page for both the HAU8000 and the DIR8000 contains a 4 icon cluster. The comparison made by Lee in his exhibit KL-11 is to an 8 icon cluster, which looks very different. The origin of this GUI design was a suggestion from Directed contained in an open and close list sent by email to Hanhwa on 13 November 2015. Regardless of who originated the idea, the GUI concept ultimately depicted as that of the HAU8000 was applied to the DIR8000 in December 2015. 2627 So, there was a similarity between the DIR8000 and the HAU8000. 2628 The opinion of Girgis, which I have accepted, is that HAU8000 is the same as the DIR8000, but the HAU8000 had a slightly faster CPU. He also concluded that the additional features listed for the HAU8000 were all software-based changes, which could have been incorporated into the DIR8000 through software upgrades, because the hardware and operating system were the same. 2629 Further, the MFLs that Lee prepared for the HAU8000 and the DIR8000 on 18 November 2016 were identical. The MFL comparisons of the HAU8000 and the DIR8000 prepared by the Hanhwa parties in the period April to August 2017 also showed they were virtually identical. 2630 In addition, the Hanhwa witnesses confirmed that the HAU8000 was manufactured using the same tooling that it asserts it ordered and paid for in 2015. This means that the fascia, sides, top, bottom and rear of both units had the same overall shape, appearance and dimensions. In that way they were identical, except for the part of the fascia where the air gesture sensor on the HAU8000 is located. 2631 Girgis' evidence is also that the accessories of the HAU8000 were the same as were specified and designed for supply with the DIR8000. The specifications and proposed functionality of the parking sensors, 4 analog cameras, external SD card reader, the TPMS, the external microphone, wireless charger, DVR, ADAS, GPS antenna, telematics unit tracking system, front iPod cable, daytime running lights, front 3 way auxiliary cable and many of the harnesses were the same. 2632 Further, they were the same as were supplied with the DIR6200 being parking sensors, 4 analog cameras, TPMS, GPS antenna, front iPod cable, daytime running lights, front 3-way auxiliary cable and many of the harnesses. 2633 I will not linger on this topic further as I have discussed it elsewhere and in more detail. Moreover, for the most part I have accepted Girgis' opinions. The PPAPs 2634 The further progress of the HAU8000 exploitation included the preparation of a PPAP. The PPAP for the HAU8000 sprang off many of the documents in the PPAP prepared by Directed for the DIR6200 and the MFL, renderings and GUI's prepared for Directed for the DIR8000. 2635 And it is clear that Mills had a copy of the DIR 6200 PPAP on the red hard drive and misused it. Mills gave Oh important help in assisting Hanhwa Korea to prepare its PPAP for the HAU8000, something it had never done before, although it had previously assisted Directed by preparing particular documents for inclusion in it. 2636 I will return to the topic of the PPAPs later. DIR6200/Accessories 2637 Let me address an aspect of Directed's case concerning the DIR6200 and accessories. 2638 First, Directed's attempt to assert that the subsequent supply of the HAU8000 is prevented because of similarities to the DIR6200/DAVE is a recognition of the flaw identified by the Hanhwa parties, namely, that the disputed exclusivity term speaks to similarity between the subsequently supplied unit and a Product defined as a product the subject of an order, which the DIR8000 never was. But all of this is now academic as I have rejected the continued operation of any exclusivity term in any event. 2639 Second, I do not accept that Leemen Korea was prevented from supplying accessory parts in respect of subsequently designed and manufactured units. 2640 I do not need to linger on these topics further in the present context. Recommencement of supply of the HAU8000 in 2020 2641 This topic was raised in the context of Directed's application to reopen, to amend and to further cross-examine Lee, which application I acceded to. 2642 In April/May 2020 Hanhwa Aus and IAL discussed the reworking for use by IAL of the 388 HAU8000 AV units held by IAL since December 2017. They also discussed the further supply to IAL by Hanhwa Aus of 500 HAU8000 AV units held by Hanhwa Aus since December 2017. 2643 On 17 May 2020 Hanhwa Aus signed a letter prepared by IAL dated 7 May 2020 varying the HAU8000 Supply Agreement which provided an indemnity to IAL in relation to the further supply to it of the HAU8000 and its accessories. 2644 At IAL's request, Hanhwa Aus checked the firmware and supplied updated navigation software for the 388 HAU8000 AV units. These units were then installed in trucks by IAL. 2645 It only took about 12 days from IAL's advice that it wanted to proceed with the reworked HAU8000 units to delivery of the first batch of units. The short time frame suggests that the rework done was minor. I infer that this is because the work sprang off the software and firmware that was completed in 2017. Hanhwa has introduced no evidence to suggest that a new version of the Polstar navigation software was developed. So, I infer that all AV units using the Polstar navigation software sprang off the version created for the HAU8000 in 2017. 2646 IAL intended to use the same accessories supplied by Hanhwa Aus for the LM18I units with the reworked HAU8000s. At IAL's request, Hanhwa Aus advised that "all" accessories for the LM18I were compatible with the HAU8000. At IAL's request, Hanhwa Aus also prepared an excel spreadsheet which showed the commonality of the parts and accessories between the LM18I and the HAU8000. It is clear that the accessories were common. This is a further indication that the accessories were common both between the DIR8000, the HAU8000 and the LM units. 2647 At IAL's request, Hanhwa Aus updated the Owner's Manual for the HAU8000 AV units. It did this by making minor amendments to the existing manual, which Directed contends further breached its copyright rights in the Owner's Manual. Lee knew that the 2017 version included Directed's photos and that is why he changed them out. Lee conceded that he directed the further use and copying of the 2017 Owner's Manual in the knowledge of Directed's claim that it infringed Directed's copyright. 2648 From about 18 May 2020, Hanhwa was engaged in detailed planning in order to supply IAL with further units of the HAU8000 if required. 2649 Lee conceded that the impression his 19 October 2019 affidavit sought to convey was that there was no further supply or delivery of HAU8000 by Hanhwa to IAL. Notwithstanding his filing of 3 further affidavits on 27 April, 11 May and 19 May 2020, he did not mention the reworking of the 2017 HAU8000 units, or that there were active discussions about the possible further supply of those units before he was cross-examined. 2650 As I have indicated already, I found Lee's evidence problematic to say the least concerning the status of the supply of the HAU8000. 2651 There was also an operative variation to the HAU8000 agreement which was inconsistent with the impression given in his affidavit that IAL had "walked away" from the HAU8000 agreement. Again, he did not correct that impression and was content for me to act on the incorrect state of affairs that he had deposed to. This was all unsatisfactory and affected the reliability of his evidence to say the least. 2652 Let me refer to one other matter. 2653 In September 2020, IAL requested Hanhwa Aus to supply the further 500 HAU8000 AV units held by Hanhwa Aus at Brooklyn since December 2017, which Hanhwa Aus did for total receipts to Hanhwa Aus of AUD 704,000. This further supply of the HAU8000 units is a continuation of the exploitation for Hanhwa Aus' benefit of a unit developed in breach of Directed's rights. I will deal with the question of any injunctive relief after further hearing from the parties. Directed would not have supplied the DIR8000 to IAL at all much less on a minimum term of 5 years 2654 The parties put submissions to me based upon a counterfactual assuming that the Hanhwa parties had not with Meneses engaged in the relevant diversionary and other culpable conduct concerning the DIR8000 / HAU8000. If the relevant egregious conduct had not occurred, what would the supply relationship between Directed and IAL concerning the DIR8000 have been? 2655 I must say that there is some force in the following points of the Hanhwa parties. 2656 First, the price of the DIR8000 quoted by Directed to IAL on 30 November 2016 was too high for IAL. 2657 Second, and even assuming that the DIR8000 can be considered to be that which had the features set out in the MFL of November 2016, IAL regarded that unit as out of date. 2658 Third, absent an enforceable obligation against Hanhwa Korea for Hanhwa Korea to supply it with the DIR8000, which is not alleged and which is not maintainable, Directed had no means of supply of the DIR8000 to IAL. 2659 Fourth, the supply agreement between IAL and Hanhwa Aus entered into in early October 2017 was for a fixed term of 3 years. The Hanhwa parties say that it is unclear how Directed can maintain that it would have procured a 5 year agreement absent evidence from IAL. But I should say that the evidence supports the proposition that 5 years was about the average life of these products. The DAVE was supplied by Directed to IAL from 2012 to the end of 2018. The HAU8000/LM18I commenced supply to IAL in October 2017 and was still being supplied at the time of closing addresses. 2660 Let me hone in on two particular matters. 2661 First, the Hanhwa parties rely on the fact that IAL regarded the DIR8000 as out of date. And this relies on an IAL email of 4 May 2017. The email considers the MFL of the DIR8000 as at November 2016 to be "out of date" in two respects. But the argument ignores what occurred. 2662 Now Directed took its last active steps to progress the project with IAL in December 2016. And by March 2017, Directed had been told by Meneses that IAL was not proceeding with the SuperDAVE project. As a result of this deception, Directed engaged in no further development of the DIR8000 and had no further consultation with IAL on the project. 2663 Contrastingly, Hanhwa Korea proceeded with its development of the DIR8000, but renamed as the HAU8000. Ultimately the HAU8000 was approved by IAL and purchased. Lee conceded that had Directed paid for the tooling, the unit Hanhwa Korea would have delivered was the same as the final version of the HAU8000. 2664 So, if Meneses and the Hanhwa parties had not improperly diverted the DIR8000, the unit that would have been delivered by Directed would have been the same as the HAU8000 that was accepted by IAL. So it would not have been out of date. 2665 Second, it is said that the price of DIR8000 was too high and there was no enforceable obligation on Hanhwa Korea to supply to Directed and therefore Directed had no means of supply of the DIR8000 to IAL. 2666 Now the price struck by Directed for IAL was predicated on the pricing offered to it by Hanhwa Korea, together with its margin. But the cost that Hanhwa Korea was ultimately prepared to offer to Directed in November 2016 was artificially manipulated so as to allow Hanhwa Aus to undercut Directed in offering the HAU8000 to IAL. 2667 Directed says that to have validity, the counterfactual should be predicated on bona fide conduct of Hanhwa Korea and Directed as though they were in an arms-length relationship. Now IAL wanted a new AV unit, and they were content with the DIR8000/HAU8000 features. And it is clear enough that both Directed and Hanhwa Korea were prepared to make accommodations on price to secure the business, particularly noting that accessories represented additional supply with profit to be earned. Directed says that it should be assumed that as between Hanhwa Korea, Directed and IAL, an accommodation would have been reached on price. 2668 Directed says that I should find on the balance of probabilities that if the respondents had not engaged in their wrongful conduct concerning the SuperDAVE conduct, Hanhwa Korea would have supplied the DIR8000 to Directed, as part of their continuing pattern of dealings. But I am not prepared to accept this. 2669 Now Directed says that if, however, I accept that Hanhwa Korea would not have agreed to supply Directed with the DIR8000, and advised Directed in June 2016 when it decided to exploit it for itself, then Directed could have sourced a new supplier and supplied it to meet IAL's required timeframes and sourced a new supplier able to supply it with AV units of the necessary quality and to meet IAL's required pricing. But I am not convinced as to this. I would need to hear further evidence on this aspect. 2670 Further and in any event, I reject Directed's suggestion that it can be inferred that a supply contract would have been obtained for 5 years. In my view, at most only 3 years would be likely. But in any event at the present stage I cannot make any definitive findings. Conclusions 2671 In my view, in relation to the SuperDAVE opportunity and its diversion, the Hanhwa parties were knowing participants in Meneses' breach of fiduciary duty and breached their contractual and equitable duties of confidence. Let me make one other point. 2672 The Hanhwa parties have said concerning the supply of the HAU8000 as compared with the DIR8000 that they were always in a position to undercut Directed concerning the supply to IAL because they could absorb or manipulate the tooling costs as between Hanhwa Korea and Hanhwa Aus. But this point, if it is good, does not deny any findings on liability concerning breach or accessorial liability. The point, if good, may go to the question of causation or the remedy. Hanhwa new AV units 2673 Let me say something about the Hanhwa new AV units generally. 2674 The Hanhwa new AV unit was given the following product codes for supply to the following customers: IAL – LM18I; Mercedes/Fuso – LM19/LM19F; UD – LM19U; and Hino – LM18H. 2675 The LM18I (IAL) is the HAU8000 with cosmetic changes. 2676 The LM19M/LM19F (Mercedes/Fuso) is virtually the same as the LM18I. Since December 2018, Fuso has not purchased any further AV units or accessories from Directed. It purchases the LM19F from Hanhwa. Further, a version of the Polstar LM19M navigation software was available for road testing in Australia, and its owner manual was drafted within 3 to 4 weeks from Hanhwa being successful in its tender for the supply of the LM19M to Mercedes. 2677 The LM19U (UD) is the same as the LM18I with minor changes. From 2011 to 2018, Directed sold UD an AV unit with the model number DIR6300FB. During this period Directed supplied UD with 2,884 units. From 2012 to 2019 Directed supplied UD with telematics units designed in 2010 by Directed. Since March 2019, UD has not purchased any further AV units or accessories from Directed. It purchases the LM19U from Hanhwa. Directed continues to supply UD with telematics units and telematics services. The LM19U navigation software was available for road testing in Australia within 3 to 4 weeks from Hanhwa instructing Polstar in relation to the software's development. 2678 The LM18H (Hino) is the same as the LM18I with minor changes. 2679 Now the LM18I (IAL), LM19M (Mercedes), LM19F (Fuso), LM19U (UD), and the LM18H (Hino), all utilised the back end of the HAU8000 with minor modifications and different fascias and screens. 2680 These AV units were also supplied to the OEMs with the same accessories as had been supplied to Directed for use with other AV units supplied by Hanhwa Korea to Directed and/or developed by it for supply to IAL with the DIR8000. 2681 They were also supplied with versions of the Polstar navigation software developed for the HAU8000. 2682 In my view, the Hanhwa parties through the LM units and their accessories have wrongfully misused the confidential information of Directed concerning the DIR8000, and this is also a continuation of the knowing participation by the Hanhwa parties in Meneses' and Mills' breaches of their fiduciary, statutory and contractual obligations to Directed and breach of the Hanhwa Korea Agreement in relation to the terms that I have found. 2683 Further, each of these units (except the LM18H for Hino) has led to the cessation of supply by Directed of the AV units and their accessories that it was then supplying to the OEMs concerned. The LM18I continues to be supplied by Hanhwa Korea and Leemen Korea (in respect of the accessories) to Hanhwa Aus, and Hanhwa Aus continues to supply it to IAL. The LM19M, LM19F and the LM19U are all in active supply as well. 2684 Now the Hanhwa parties say that the LM units are not similar to the DAVE or the HAU8000 other than the fact that they are all AV units designed and manufactured by Hanhwa. Now the other LM units are closer to the LM18I than the LM18I is to the HAU8000, nevertheless each had some idiosyncratic features. But in my view the LM units are similar. In any event, I am not here concerned with any breach of a contractual exclusivity term, but rather a broader case concerning the misuse of confidential information and an accessorial case. 2685 Now let me return to the position concerning IAL. 2686 After the commencement of this proceeding, IAL ceased to take further supply of the HAU8000 and its accessories. 2687 In due course Hanhwa Aus supplied to IAL the LM18I unit and the same accessories as had been supplied with the HAU8000. As I have said earlier, the LM18I is merely the HAU8000 with a different fascia and smaller screen. It was supplied with the same accessories as had been supplied with the HAU8000. I agree with Directed that the LM18I and its accessories also involved a misuse of confidential information. 2688 Let me say something further about the LM18I. 2689 Shanks told Lee in early November 2017 that it would cease ordering the HAU8000 due to its legal issues. 2690 On 18 December 2017, Shanks and Lee then met to discuss next steps. They initially contemplated Hanhwa supplying the DIR6200 with a new fascia. Shortly after Christmas, Shanks contacted Lee: Please provide a sample of the DIR6200 (DAVE unit) with your proposed Hanhwa facia which we discussed at our 18/12/2017 meeting where you reported that with the new facia Directed OE would have no claim on this combination. 2691 Lee responded that: "This unit will differ ONLY front facia however "back end" will be the same PCB/Connection. Further, it will be the same accessory connection …". 2692 Now on 19 January 2018, IAL invited Directed to participate in a closed tender for the supply of an AV unit to replace the DAVE. 2693 On 23 January 2018, Lee presented a working version of the Hanhwa 6200 with new fascia and GUI to IAL. Shanks confirmed its attributes the next day, noting: "This version is Telematics ready". Polstar was to compile the maps for the new 6200 unit. The lead time was 3 months for the new 6200. 2694 On 12 February 2018, Directed presented to IAL its ideas for a replacement AV unit for the DAVE with significant improvements over the DIR8000. 2695 By 16 February 2018, Hanhwa and IAL changed the plan to Hanhwa supplying the HAU8000 with a new fascia and the same accessories as had been approved for the DIR8000 and the HAU8000. The unit was called the LM18I. By that date, there was an MFL for the LM18I, which at this point had a 6.1 inch screen. 2696 By 22 February 2018, IAL had approved the LM18I. Shanks informed his colleagues that Hanhwa Aus' success was due to "cost". He also referred to the comparative lack of detail of the Directed offer. 2697 But IAL wanted the SuperDAVE and its accessories which had been under development since 2014 and Hanhwa could supply it. The LM18I and its accessories was, in truth, the HAU8000 with a 6.2 inch screen and the same accessories. 2698 On 26 February 2018, Lee sent Shanks an email with the proposed rendering, the MFL, diagrams of the unit with all accessories, and a table comparing the LM18I to the HAU8000. They needed to compare it and its accessories to the HAU8000 as that unit and the DIR8000 and its accessories had been sampled, inspected, tested and approved by IAL in 2016 and 2017. 2699 On 28 March 2018, Shanks informed Lee that the LM18I was approved and that production quantity stock was required by July 2018. 2700 On the same day, Directed was informed verbally and in writing that it had lost the tender to the Hanhwa parties. In about June 2018, Directed was told that it had also lost the business for Isuzu New Zealand. They were to purchase the same units supplied in Australia from Hanhwa. 2701 Let me at this point say something further about the Polstar navigation software. 2702 Now the Hanhwa parties say that accepting that Hanhwa Aus sold the LM18I to IAL which was loaded with Polstar navigation software, as was the LM19F sold to Fuso and the LM19U sold to UD, how the alleged use by the Hanhwa parties of what is alleged to be Directed confidential information furthered the Polstar navigation conduct alleged is not clear. 2703 The Hanhwa parties say that Mohos from Polstar was formerly an employee of NavNGo and now worked for Polstar. In his capacity as a Polstar employee, unsurprisingly he pitched to Directed and to Hanhwa. 2704 Now Directed alleges that the Hanhwa parties used Directed's confidential information. But the Hanhwa parties say that the price information was not confidential. No doubt IAL knew what it paid. And NavNGo knew what it charged Directed. They say that Mohos probably knew it too and took that knowledge with him when he went to Polstar. But they say that there is no evidence of misuse. 2705 But the development of this specialist truck navigation software was done with the active involvement of Meneses, the Hanhwa parties and through Meneses, other Directed employees. These were breaches by Meneses of his contractual, fiduciary and statutory duties, actively induced by, and participated in, by Lee and the Hanhwa parties. 2706 And the timing of the development of the Polstar software for use with the LM units makes it apparent that subsequent iterations supplied with the LM units were mere modifications of the tainted original software. 2707 It is convenient at this point to discuss other aspects of Directed's case concerning diversionary conduct, other than that concerning the SuperDAVE. Diversion of the Isuzu D-MAX 2708 A related but separate opportunity sought to be diverted concerns the exploitation by the Hanhwa parties, Meneses and Mills to supply an AV unit to Isuzu Utes for its D-MAX utility vehicles. 2709 In February 2016, Meneses and Lee identified the D-MAX as potentially an opportunity to be taken. Meneses was aware of this opportunity because he had been instructed by Siolis to pursue the opportunity to supply AV units to IAL for the D-MAX vehicles. Siolis of Directed identified this opportunity and instructed Meneses to pursue it for Directed. Meneses harboured the opportunity to himself by reporting to Siolis that Isuzu Utes was not interested. 2710 Meneses identified this opportunity as one that he and Lee could exploit through Hanhwa Aus. Hanhwa, with Meneses', Mills' and Summers' involvement whist they were employees of Directed, developed a product to supply to Isuzu Utes. 2711 The opportunity was confirmed in August 2016 by Hanhwa Korea when they changed the prefix of the part number of the AV unit to the "HAU8100 (D-MAX)". Lee did not consider this conduct wrongful because, as far as he was aware, Directed had never supplied a product to Isuzu Utes. This is not the relevant test. 2712 In August 2016, Lee and Meneses presented directly to Isuzu Utes to supply a Hanhwa AV unit for D-MAX vehicles. Meneses wore his "Hanhwa" hat: he was listed as the Australian contact with his jm@leemen.net email address. Lee was listed as the Korean contact. Meneses had forwarded the email and presentation to Mills. Mills was involved, and also during the period of his employment restraint. 2713 Hanhwa's 2017 business plan made in December 2016 showed the expectation to exploit the D-MAX unit and the expected revenues. Lee confirmed that Meneses presented the D-MAX unit at a dealer showroom in Brisbane in early 2017. 2714 Meneses, Mills and Sue Mills were aware of and assisted in the preparation of the presentation, which recorded that Meneses was the contact person for Hanhwa Aus and providing his Hanhwa email address and the mobile number issued to him and paid for by Directed. 2715 The exploitation of the D-MAX unit continued through 2017. 2716 On 9 June 2017, Oh sent to Mills high resolution images of three units, one of which was the D-MAX 8 inch AV unit. There are many features in common between the renderings of the D-MAX AV unit and the HAU8000. 2717 Had Siolis been told of the opportunity to supply the AV unit in the presentation to Isuzu Utes, he would have wanted Directed to pursue it. 2718 Now even if Hanhwa Aus was not successful in winning this business, it was an opportunity that Directed lost through Meneses', the Hanhwa parties' and Mills' misconduct. It was diverted away from Directed in breach of his obligations by Meneses with the knowledge and active participation of Lee, Hanhwa Aus and Hanhwa Korea parties. 2719 Now the Hanhwa parties say that as to the Isuzu D-MAX, Isuzu D-MAX is a separate customer to IAL and Directed had never supplied it. Further, none of the Hanhwa parties have supplied the D-MAX. But that is no sufficient answer. 2720 They also say that in so far as the claim rests on the proposition that the idea of supply or the sales lead is confidential information, it is flawed. But I disagree. 2721 Further, they point out that in respect of the D-MAX, Girgis ultimately found that it was impossible for him to conclude one way or another whether it was substantially the same as the LM18I. He gave the following evidence: There are many features in common between the D-Max AV Unit and the LM18I which I have listed above. There are also a number of features and accessories specified for the LM18I, LM19F, LM19M, LM18H and LM19U that are not listed for the D-Max AV Unit, such as TPMS, blind spot indicator, telematics, ADAS and the ability to connect 4 cameras. This is not surprising given that the D-MAX AV Unit is intended for a ute whereas the LM18I was proposed for trucks and heavy vehicles. However, just because a feature is not listed does not necessarily mean that the hardware and operating system of the AV unit could not support these features. It may be that the unit could support many of these features but they were not promoted as they were unlikely to be required by the customer. However, without further drawings or information, such as a more detailed master feature list or final GUI designs (noting that the documents I have reviewed are described as concept designs), it is impossible for me to conclude whether or not the D-MAX AV Unit was substantially the same as the LM181. 2722 But that conclusion does not defeat Directed's broader case. 2723 More generally, the Hanhwa parties were aware of Meneses' obligations as a senior employee of Directed. They are liable as knowing assisters. The 6160 opportunity 2724 Directed sold to Mercedes an AV unit with the model number DIR6160, which was developed with Hanhwa Korea in 2016. This had a 6.1 inch screen and was supplied for use with Directed's telematics unit. In 2017, Mercedes purchased 1,224 units. 2725 Directed says that during February to August 2017, Hanhwa with Meneses' knowledge and involvement, developed an AV unit to supply to Mercedes to replace the DIR6160 AV unit that Directed was then supplying. 2726 According to Directed they needed a telematics unit and telematics functionality. 2727 Directed says that the Hanhwa parties and the Gridtraq parties proposed to integrate the RA7000 telematics unit with the Hanhwa 6160 unit for supply to Mercedes. 2728 Directed says that in March 2017 Hanhwa worked on extracting CAN Bus data in order to provide telematics functionality for its proposed AV unit, including by Shin and one of its other employees extracting CAN Bus data on a Mercedes truck at Directed's premises. 2729 Directed says that in early 2017 Lee told the Gridtraq parties that he had received an inquiry relating to the supply of an AV unit to Mercedes. Directed says that I should infer that this was the 6160 opportunity and Lee had sought the Gridtraq parties' assistance for the telematics. 2730 Directed says that in the period February 2017 to August 2017, Hanhwa designed an AV unit for supply by it to Mercedes as a substitute to the DIR6160. Hanhwa worked on extracting CAN Bus data in order to provide telematics functionality for its AV unit, including by Shin and one of its other employees extracting CAN Bus data from a Mercedes truck at Directed's premises. 2731 Directed says that it appears that the attempt to supply a new AV unit to Mercedes to replace Directed's DIR6160 was overtaken by the successful supply by Hanhwa Aus of the LM19M to replace Directed's DIR6160. But it says that the attempt was a breach by Meneses of his obligations in which Directed says that the Gridtraq parties and the Hanhwa parties knowingly participated. 2732 Now the Hanhwa parties say that there may have been a proposal to do this, but deny that there was any such unit produced. The Gridtraq parties say that there is no evidence of its involvement in the 6160 conduct or its misuse of confidential information. I will discuss the Gridtraq parties' position later. 2733 Let me say something about the Hanhwa parties' position. 2734 Hanhwa relies upon the minutes relied upon by Directed, that is to say those of 25 January 2017 which affirm that the contemplation of a new combined unit (combining the trim plate and the unit) would proceed gradually and in the meantime the current DIR6160 and TP012 would continue to be supplied until further notice. 2735 Now I agree with the Hanhwa parties that Directed's case is based on a misinterpretation of a Hanhwa Korea minute of 25 January 2017, the substance of which was that long term, Hanhwa Korea would design a new unit which inter alia involved a new fascia and a combined trim plate for Mercedes, which would be supplied direct, but that in the meantime the DIR6160 would continue to be supplied by Directed. 2736 Further, Lee denied that Hanhwa was working on a new version of the 6160 to supply direct to Mercedes, and he rejected the suggestion of the creation of two test codes, viz, a DIR6160 and a HAU6160. 2737 Directed makes no reference to the relevant email chain which relevantly includes an email from Kang to the Korean engineers which says: Hello? This is Jongwoon Kang. To reduce possible confusion like below, DIR6160 HAU6160 Please I request you to consider dividing the code into the above two and manage them. 2738 This was a suggestion in the context of the establishment of test codes (in contrast to production codes). 2739 As Lee explained, this related to development work being conducted for a new blind spot camera for the DIR6160. Importantly, Shin then responded: Hello Having discussed with Mr Lee of Australia, we will proceed with the current DIR6160 CAN Benz CAN model number without any temporary change. Please be careful of confusion. 2740 Further, in relation to the work done by the Hanhwa Korea engineers in March 2017, the evidence of Shin is to be preferred. 2741 Summers' original evidence with respect to the 2017 visit by the engineers was very confined. That was then responded to by the detailed affidavit of Shin, which was corroborated by the documentary evidence to which Shin referred. Having then being confronted with Shin's detailed account which revealed an innocuous purpose associated with the extraction of the CAN Bus data, for Directed's benefit, Summers responded with a further affidavit. 2742 Now Summers was cross-examined. It is clear from an examination of the transcript and from a review of the video that the preparation of Summers' affidavit material was problematic to say the least. Summers appeared to have little knowledge of what was in his affidavits, where Summers was cross-examined on the fact that in his affidavit he said he was unable to locate any texts that he had sent Meneses before 9 October 2017 because he had lost his phone, which was contradicted by documents that he had referred to in his affidavit which contained text exchanges between himself and Meneses in July 2016. Similarly, Summers accepted that he did not look at some of the documents that had been referred to in his affidavit before swearing it. Likewise he had no recollection of when things had occurred. He was also asked as to the account of events set out in his affidavit evidence. There were a range of contradictions as the Hanhwa parties pointed out between what Summers had deposed to in his affidavit and his oral evidence. 2743 In the circumstances I prefer Shin's evidence. 2744 Now I should also note that Hanhwa Korea designed a new AV unit (the LM19M) for Mercedes which has been supplied by Hanhwa Aus to Mercedes since October 2018. The design and development of that unit occurred from July 2018. But this is not the HAU6160. 2745 Further, putting the different units aside, and assuming in Directed's favour that a Hanhwa Korea designed unit was supplied by Hanhwa Aus to Mercedes, as a substitute for the DIR6160, and that it was designed with telematics capacity, that does not make out Directed's case, save potentially for misuse of confidential information. The Hino opportunity 2746 A related but separate opportunity sought to be diverted concerns the exploitation by the Hanhwa parties and Meneses to supply a larger AV unit to Hino to replace the AV unit that Directed was then supplying. 2747 Between 2013 to 2017, Directed supplied AV units with a 6.1 inch screen to Hino, manufactured by Hanhwa, with model numbers DIR6100, DIR6100FB and DIR6110. They were supplied for use with Directed's telematics unit. Directed supplied Hino with 29,340 DIR6110 units during the period. From 2014 to 2019, they were supplied for use with Directed's telematics unit. 2748 Hino was an existing customer of Directed. In February 2016, when Meneses diverted the D-MAX opportunity for his and Lee's benefit, he communicated to Lee at the same time that a new Hino project was for the benefit of Directed ("Send it to my Directed email … Isuzu DMax was for me."). This had been a planned project in which Hanhwa would create a face-lift DIR6110 for Directed for supply to Hino, being a 6.4 inch screen with new rendering. During their tenure at Directed, Dylan Hartley acknowledged that Meneses had introduced him to Petrovski of Hino. 2749 In early 2017, Petrovski had told Jaffe that Hino wanted a new, upgraded Hino unit with a bigger screen. Several months later, Meneses told Jaffe, "don't worry about it, I've got it under control". In fact, Meneses and Lee tried to exploit this opportunity through Hanhwa Aus with a version of the DIR8000 called the HAU8200. 2750 Between at least April 2017 and September 2017, the Hanhwa parties worked on design renderings for a new 8 inch Hino AV unit. Lee asked Meneses' opinion of them. 2751 On 11 May 2017, Jeff Gibson of Hino provided Directed by email with links to two new proposed Hino vehicles, the "500" and "700". That day, Meneses forwarded this to Lee: "New models coming…". Hino shared with Directed its 2018 and 2019 plans (including the launch of a new Hino truck). 2752 On 25 May 2017, under the title "CANBUS", Dylan Hartley emailed Davidson and Allen Hartley 10 attachments of CAN Bus information and parameters for IAL, Hino, Mercedes and UD. It is to be inferred that the Gridtraq parties were closely involved in developing telematics opportunities for all new projects, including this one. 2753 On 14 August 2017, fresh from a visit to Sydney where Pieries learned this, he gave Meneses and Jaffe the news. Meneses forwarded this email to his personal email address, evidencing continued diversion of the Hino opportunity. 2754 Now in relation to the Hino product (the LM19H/HAU8200), Lee instructed Park to develop this product and for him to show Hino in or around June 2017. The development phase took approximately 5 to 6 months, which was longer than originally anticipated. This longer than expected development phase was caused by the need to incorporate a pivot feature in the monitor which enabled the monitor to pivot backwards and forwards from the dash with an arm, which had never been incorporated in any units by Hanhwa Korea previously. This pivot function is a distinction between the HAU8000 and the HAU8200/LM18H, as well as the fact that the HAU8200/LM18H also incorporates a DVD Deck. 2755 Throughout 2017 Hanhwa developed the new Hino unit with Meneses' active involvement. During the May 2017 Brisbane Truck Show, Lee held discussions with Petrovski about direct supply of the new Hino unit, making reference to the unit Hanhwa Aus was to supply to IAL. 2756 Whilst at Directed, on 29 August 2017, Jeff Gibson of Hino asked Pieries for dimensioned drawings for the new Hino AV unit, providing him with the dashboard dimensions to help. Pieries provided Gibson with the drawings that same day. Gibson responded: "You are a legend. I will tell your boss you are worth more money…". Meneses, to prevent Directed pursuing this opportunity, told Pieries, Summers and Jaffe: "Gents, slow down!! Speak soon about this project." Meneses did not raise it again. 2757 Further, in the context of Jeff Gibson of Hino revealing plans to Pieries of a new Hino truck and associated AV unit, Pieries asked Meneses whether Directed should try to sell the SuperDAVE to Hino. Meneses told him words to the effect, "They wouldn't be interested". Instead Meneses and Hanhwa sought to do exactly that to the exclusion of Directed with the HAU8200. 2758 In October 2017, Meneses' trip to New Zealand for which he billed both Hanwha and Directed, included a visit to Hino. 2759 After these proceedings were instituted and during his restraint period, Lee confirmed in an email dated 25 November 2017 that Meneses approached Hino on behalf of Hanhwa Aus and sought to supply Hino the HAU8200. 2760 Now Lee's evidence under cross-examination, that he and not Meneses personally approached Hino to supply the HAU8200 is problematic. He tried to conceal his knowledge that Meneses made the approach within the period of his contractual restraint. During his restraint period, Meneses continued to approach Hino on behalf of Hanhwa Aus to supply Hino the HAU8200. 2761 Now the Hanhwa parties say that the Hino opportunity was not diverted. Directed pitched a rival product which was apparently accepted. 2762 But the evidence establishes that an opportunity arose in early 2017 which Directed could and should have pitched for. Had Meneses and Hanhwa not acted wrongfully, Directed would have done so with a version of the DIR8000 with a different screen. Instead it found itself more than 12 months later competing with Meneses and Hanhwa with a new unit which Directed had to develop from scratch. It was competing with the LM18H, which was the modified unit that Directed had spent 2 years of time and money developing. Directed says that this is compensable loss. 2763 Now Directed says that it is to be inferred that the Gridtraq parties were involved in developing telematics functionality to work with the HAU8200 in Hino trucks as they were for the HAU8000 in Isuzu trucks. It is said that the Gridtraq parties knew at all times that Meneses was involved in the Hino conduct given their knowledge of his role at Hanhwa Aus. It is said that the Gridtraq parties were acting with requisite knowledge to induce Meneses to breach his contractual, fiduciary and statutory obligations to Directed in relation to the Hino conduct. But the Gridtraq parties argue that there is no evidence of its involvement in the Hino conduct or its misuse of confidential information. I will return to Gridtraq's position later. The ICL opportunity 2764 This was an opportunity that Directed had to supply its product to an international channel for IAL products represented by ICL. ICL is a division of IAL's parent entity in Japan, and is a global distributor of Isuzu parts and accessories. 2765 In 2013, the DAVE was placed on Isuzu's global inventory platform. Directed sent sample DAVE units to Isuzu UK and Isuzu USA which led Directed to contemplate international expansion. In about 2014, Siolis told Meneses to approach ICL. 2766 On 22 January 2015, Yuji Tsukano of ICL contacted Meneses by email at Directed, expressing interest in the DAVE. ICL requested sales history, specifications and other information. 2767 Meneses travelled to Japan on 18 to 20 October 2015 where he met with Isuzu and ICL representatives in Japan. Meneses told Shanks of IAL that it went well and there appeared to be opportunities for the sale of products in the UK market. Meneses further shared the opportunity with Lee, forwarding relevant emails to him. Mills also appeared to have knowledge of the opportunity. 2768 Meneses also explored the opportunity with YS Lee. Meneses told YS Lee in essence not to approach ICL at that stage. YS Lee acknowledged that at the time it was made this disclosure and the opportunity were confidential. 2769 Further, in the period September 2016 to July 2017, Meneses with his "Hanhwa hat" on and Hanhwa pursued the ICL opportunity for Hanhwa's benefit and sought to supply ICL with the HAU8000 and its accessories. 2770 On 14 October 2016 Meneses forwarded to Lee a 2015 email string between himself and ICL. Now Directed says that having regard to the timing, which is the period when Meneses and Lee were actively pursuing opportunities for Hanhwa Aus, it can be inferred that this was Meneses diverting for Hanhwa's benefit the opportunity to supply to ICL the SuperDAVE. But this does not seem correct literally. 2771 When it was put to Lee that when Meneses forwarded the email to him on 14 October 2016, this email was in connection with the opportunity to supply the HAU8000 to ICL Japan, Lee answered "That's incorrect. This is definitely for DAVE unit which is DIR6200". He reaffirmed that evidence. It is not probable that Lee and Meneses would have been pitching the as yet undeveloped HAU8000 to ICL, with whom they had never had any dealings, when they had not even approached the Australian entity IAL at that time. 2772 Meneses and Lee attempted to exploit the ICL opportunity to the exclusion of Directed by the supply to ICL of the HAU8000 and a single AV unit based on the DIR1024 as well as DRLs. 2773 From May 2017 Lee, Meneses and Mills actively pursued ICL to supply an AV unit, telematics unit, steering wheel remote, DRLs and wing mirror cameras. This included Lee meeting with Hara of ICL at the Brisbane Truck Show. 2774 Meneses needed to obtain clearance from Shanks before pitching the HAU8000 and its accessories to ICL. This was apparently obtained, and a meeting with ICL took place in June 2017. 2775 A further meeting took place with ICL in Japan on 11 July 2017. Lee admitted it was their plan to supply ICL with the HAU8000 with a different sized screen and changes to the GUI. ICL also considered buying both the single HAU1024 for Japan, and DRLs for Russia and Japan. Pricing was discussed between Meneses, Mills and Lee. 2776 Moreover, the day of the execution of the search order, Meneses and Lee were in Japan and were to visit ICL that day. 2777 The ICL opportunity was pursued through to December 2017, after the commencement of these proceedings. It is not clear whether Hanhwa has been successful in winning this business. However, it is clear that the ICL business represented an opportunity that Directed lost through Meneses', Mills' and the Hanhwa parties' misconduct. 2778 Now the Hanhwa parties deny any wrongdoing. They say that the approach to ICL commenced with Lee meeting Hara San at the Brisbane Truck Show. They say that the HAU1024 was an entirely new design. They say that ICL was not an existing customer of Directed. And they say that the products offered to ICL were not "similar products" for the purposes of the Hanhwa Enterprise and Hanhwa Korea Agreements. 2779 The Hanhwa parties say that one of the products the subject of the pitch (the 1 Din CD audio unit for potential supply to the Japanese company ICL) was a newly designed unit, the HAU1024. They say that this was substantially different to the DIR1024 supplied by Hanhwa Korea to Directed. 2780 But I accept Directed's case that the product which Hanhwa Korea sought to supply to ICL, the HAU1024, was derived from the DIR1024. 2781 Meneses had no proper basis to send ICL contact details to Lee. Further, Meneses was specified as Hanhwa Aus' Australian contact in the presentation for ICL emailed on 19 June 2017, whilst he was still employed by Directed. He breached his contractual, fiduciary and statutory duties to Directed and the Hanhwa parties were accessories. 2782 Further, the DRLs, the DIR1024, Steering Wheel Remote, DVR, cameras and harnesses, TPMS and parking sensors were all products previously supplied by Hanhwa to Directed. 2783 Further, the claim does not depend on Directed having previously supplied products to ICL, but rather that the opportunity to exploit was improperly diverted away from Directed. RA7000 other opportunities 2784 It is said that Meneses diverted at least two opportunities away from Directed to the Hanhwa parties and the Gridtraq parties which they sought to satisfy with the RA7000 AV unit and/or the RA7000 telematics unit. 2785 Let me deal with the first supposed opportunity. On 2 February 2017, Dane received an email from John Madour of Mercedes inviting Directed to submit a proposed design for a standalone AV unit with Australian mapping to be fitted to its Sprinter bus line with Australian navigation maps to replace a unit without Australian map data. 2786 Dane forwarded that email to Meneses immediately upon receipt but heard nothing further. Meneses forwarded it to Lee. Several days later, consistent with the prospect, Summers, Meneses and Tselepis were provided with Mercedes data and specifications requests for telematics. Meneses told Summers he would respond to it. Summers heard nothing further. I agree with Directed that Meneses actively put Directed's employees off the pursuit of the Mercedes Sprinter opportunity. 2787 Between 8 February and 9 April 2017 Meneses and Lee exchanged design renderings and options for "Sprinter Transfer bus". 2788 But there is no sufficient evidence that the Hanhwa parties sought to supply the safety screen to Mercedes for the Sprinter vans. Lee's evidence is that there was never any intention to supply the safety screen other than through Directed. 2789 I am unable to reach a concluded view against the Hanhwa parties on the diversion of this opportunity. 2790 Directed says that the second opportunity diverted that was to be met by the RA7000 was an opportunity identified by Meneses on 20 March 2017 to supply a product to Australia Post. Meneses sent the RFI to Allen Hartley. But the Hanhwa parties did not market the safety screen to Australia Post. 2791 In summary, I am not satisfied that Directed has a case against the Hanhwa parties concerning these two opportunities, notwithstanding Meneses' behaviour. General 2792 Now the Hanhwa parties assert that as there were no sales of product by Hanhwa in relation to the alleged diversions concerning non-IAL opportunities, there can be no claim for damages nor any profit for which to account. But this has yet to be established. Further, there may be the loss of Directed's ability to exploit any one or more of such opportunities. And such damage may be compensable. Breach of confidence 2793 Let me now discuss the breach of confidence question in more detail. 2794 Directed's case against Meneses, Mills and the Hanhwa parties alleges the wholesale taking of the confidential information and intellectual property of Directed. It asserts various breaches of confidence as well as claims for breaches of fiduciary and statutory duties and accessorial conduct. In my view its claims against these parties have largely succeeded. I will deal with the claims against the Gridtraq parties later, which in my view have largely failed. Let me begin with some introductory remarks. 2795 Now Directed says that during the course of their employment with Directed, each of Meneses and Mills were provided with information concerning Directed's business that was confidential to Directed and was imparted in circumstances importing an obligation of confidence upon them. The employment agreements of each of Meneses and Mills contained express terms imposing obligations not to use any information provided to them that was confidential to Directed. Further, by reason of their equitable duties of confidence and fidelity to their employer, Meneses and Mills were also bound not to use any information provided to them that was confidential to Directed and was imparted in circumstances importing an obligation of confidence upon them. I have accepted such duties and their breaches as the earlier parts of my reasons indicate. 2796 Directed claims that Meneses and Mills misused Directed's confidential information by providing it to each other for purposes contrary to the interests of the business of Directed, and to the Hanhwa parties and Lee. It is alleged that they breached their express contractual obligations, their fiduciary obligations, and their equitable duty of confidence. As I say, there is little doubt that this part of the case has been made out. 2797 Second, Directed says that the Hanhwa parties misused Directed's confidential information, both in equity and in breach of the Hanhwa Enterprise Agreement between Directed and Hanhwa Enterprise and also in breach of the Hanhwa Korea Agreement between Directed and Hanhwa Korea. Save for the claims concerning the Hanhwa Enterprise Agreement, in my view these other claims have been made out. 2798 The Hanhwa Korea Agreement had an implied confidentiality term which required Hanhwa Korea and Leemen Korea to maintain confidentiality in any confidential information they were provided by Directed. This included any non-public information that in the circumstances would be considered to be confidential. 2799 Now the Hanhwa parties claim that this was all done without Lee's knowledge or instigation, or in respect of matters not useful to them. Further, it is said that Hanhwa Aus did not misuse the information. But I reject the Hanhwa parties' various defences in this respect. 2800 Clearly Meneses and Mills were subject to confidentiality obligations which the Hanhwa parties can be taken to have known of. Mills and Meneses were subject to express confidentiality terms via their respective employment agreements. Moreover, Hanhwa Korea and Leemen Korea were subject to the terms of the Hanhwa Korea Agreement and the relevant implied terms. Moreover, equitable duties of confidence applied. Further, it ought to have been reasonably apparent that the Hanhwa parties were not free to deal with Directed's confidential information as their own. 2801 Further, the Hanhwa parties' unauthorised acquisition and use of confidential information saved considerable time in their development of products and services to compete with Directed. I agree with Directed that they obtained a substantial springboard benefit. 2802 The Hanhwa parties misused confidential information by disclosing or using the prices at which Directed supplied or proposed to supply products to its customers, its gross profit on products Directed supplied to its customers and the cost price of Directed's products and services which were sourced from suppliers other than Hanhwa Korea. Such information was confidential and not in the public domain. 2803 Directed's pricing information provided to OEMs, such as Directed's cost breakdown sheets for the DIR8000 and its accessories, had the necessary quality of confidence and were not within the public knowledge. Indeed the nature of the information and the circumstances under which they were provided by Directed to IAL makes that out. And there is no evidence that IAL ever disclosed such information to any third party or made it publicly available before being taken and used by Hanhwa Aus to create the corresponding Hanhwa Aus versions for the HAU8000 and its accessories. The same is true for other pricing information of Directed provided to OEMs. 2804 Moreover, the Hanhwa parties readily understood that information not in the public domain concerning potential commercial opportunities was confidential. If information was disclosed to them by a third party, it could only be used for the purpose for which it was provided. 2805 Now the Hanhwa parties have said that the confidentiality of component cost and profit information has no relevance in the present case where Hanhwa Korea knew the price at which it was supplying product to Directed, and likewise where the supply price at which Directed was supplying its customers (including IAL) was self-evidently known to the acquirer of the product, whose receipt of such information was not subject to any requisite confidentiality obligation and who would, in the ordinary scheme of things, inform a party who wished to supply an alternative product of the price currently being charged. But none of this is an answer. First, it does not address the position concerning Hanhwa Aus. Second, Hanhwa Korea could only use information for the purpose for which it was given. Third, what third parties might have done in the future in terms of disclosure is not to the point. Business opportunities 2806 Let me address the first category of confidential information, 2807 The relevant business opportunities were opportunities to sell products to existing or potential customers of Directed. The availability of these opportunities was in my view confidential information. Let me make the following points. 2808 First, Directed had been invited exclusively to submit a proposal to supply and/or it had identified such opportunities by its own endeavours in circumstances which required skill and effort as well as relationships and contacts to acquire the information. 2809 Second, Directed had only disclosed such opportunities to Hanhwa Korea in order to assist Directed to meet the opportunity to supply in circumstances importing an obligation of confidence. 2810 Third, Meneses wrongfully disclosed to the Hanhwa parties such opportunities in the following circumstances. In my view the Hanhwa parties knew or ought to have known that such disclosure was in breach of Meneses' duties of good faith and fidelity to Directed. Further, the Hanhwa parties improperly or surreptitiously obtained the information with the intention of the Hanhwa parties using it in commercial competition with Directed and to the detriment of Directed. 2811 In my view it would have been clear to a reasonable person on reasonable grounds that he was not free to deal with the information as his own, or could only deal with it subject to certain limitations. 2812 Moreover, as Directed points out, these commercial opportunities were not just sales leads. 2813 Further, all relevant conduct was done as between the Hanhwa parties and Meneses at a time when secret commissions were being paid to Meneses, so inducing him to act in conflict of interest and in breach of his fiduciary obligations to exclusively advance the interests of his employer. Moreover, the Hanhwa parties knew that he was doing so. 2814 Now the Hanhwa parties dispute that business opportunities disclosed to it by Directed, in order that Hanhwa Korea could work with Directed to develop product to supply to the potential customer, were confidential information and which they were obliged to keep confidential and not seek to exploit for themselves to the exclusion of Directed. 2815 They say that each of the so-called business opportunities was at best a sales lead which was disclosed by Directed to Hanhwa Korea because it would be up to Hanhwa Korea to conceive the design and manufacture a unit which could fulfil that end customer requirement. They say that such a sales lead does not in any relevant sense constitute information protectable at law or in equity. This is a bare assertion with little merit in my view. 2816 And they say that the existence of the sales opportunity was disclosed by Directed to Hanhwa Korea in circumstances where a reasonable person could not have regarded Hanhwa Korea as being under any obligation not to use the information otherwise than in Directed's interest. Again, that is merely a superficial assertion. 2817 In any event, they say that the exploitation of the product for Directed's benefit inexorably carried with it the design work and manufacture by Hanhwa Korea, which it would only be willing to do if it could come to a mutually acceptable commercial arrangement with Directed. So, they say that to regard Hanhwa Korea as bound outside of any contractual obligation to not use the sales lead provided for potential exploitation on its own would oblige it in effect to agree to whatever terms Directed would dictate as to the price of supply and tooling. But this submission is exaggerated. Moreover, Hanhwa Korea was subject to equitable duties. 2818 Indeed, they go so far as to say that the so-called Directed opportunity was in fact a joint opportunity for Hanhwa Korea to design and manufacture a unit which could be supplied by Directed to the end customer. For the opportunity to ripen into a commercial arrangement, agreement as to the suitability of the product and as to price needed to be negotiated between the end customer, Directed and Hanhwa Korea, with each free to act in their own commercial interests in an effort to achieve (or not achieve) mutual agreement. But they say that if agreement was not reached, they were free to deal with the opportunity as each saw fit. I disagree. They were not so free in the present circumstances. 2819 Let me deal with another point. They say that Lee's evidence was that there was no overarching agreement as between Directed and any Hanhwa party. But I reject Lee's evidence in this respect. Clearly, the arrangements between Hanhwa Korea and Directed necessitated some form of agreement of the type that I have found, which Lee can be taken to have known of, which knowledge can be attributed to Hanhwa Aus. In any event, it does not address the other causes of action concerning the misuse of confidential information. 2820 Further, the LM AV units and their accessories and navigation software are a continuation of the breach by Meneses and Mills of their fiduciary obligations to Directed, in which the Hanhwa parties are knowing participants. Now the Hanhwa parties say that the LM AV units were all supplied as and from 2018 when both Meneses and Mills were employees of Hanhwa Aus. But this is no answer. Their later conduct is just a continuation of the earlier wrongful conduct. 2821 Further, the Hanhwa parties say that it is not the law that a mutual sales lead is a form of information which warrants equitable protection at least outside circumstances where the contractual arrangements between the parties suggest otherwise or where the parties are in a fiduciary relationship. But in my view the relevant information here was more than just that. 2822 Now the Hanhwa parties say that even if there was confidential information of Directed appropriated by Meneses and Mills, there is no basis to suggest that this ought to have been known by the Hanhwa parties, much less that such information was foundational to the decision of Hanhwa Korea to set up Hanhwa Aus and relatedly to terminate the distribution arrangements with Directed and in lieu distribute via Hanhwa Aus. 2823 The Hanhwa parties say that Hanhwa Korea already had the core elements of the business. The business involved the design of AV units; those AV units were then distributed on Hanhwa Korea's behalf by Directed. They say that all that changed here was that the role of the intermediary Directed was cut out of the distribution chain with respect to future products. In other words, Directed did not lose the business by reason of any acts or omissions of Meneses or Directed. It had no business to lose. And what it so-called lost was the supply of new yet to be designed and manufactured products. And it lost that because Hanhwa Korea decided to no longer distribute through it. This was a decision made by the Lees which was within their rights. 2824 But these points, even if they have some validity, in my view do not answer completely Directed's case for misuse of its confidential information. 2825 Now the Hanhwa parties say that the so-called lost opportunities were not opportunities that Directed lost to supply "its product" except in the most literal sense. Directed was no longer able to distribute Hanhwa Korea designed and manufactured units after the Lees had made their decision in mid 2016. 2826 They say that any opportunity was not lost by reason of Meneses' or Mills' activities in breach or otherwise of any relevant contractual or equitable obligations owed by them. It was lost because in mid-2016 the Lees had had enough of Directed and no longer wished to design new products and manufacture them for distribution via Directed. 2827 But the fact is that Directed did lose such opportunities. And they had the potential to meet them other than through Hanhwa Korea. 2828 Now Directed says that in order for a plaintiff to be entitled to relief arising from a breach of fiduciary obligation, it is not necessary for the claimant to establish that it otherwise would have availed itself of the opportunity. But the Hanhwa parties say that the correct proposition is that if the accessory to the fiduciary breach obtains a benefit, the claimant is entitled to relief, without the need to show that the claimant would have otherwise obtained the benefit, and nothing more. But this does not establish that the claimant is entitled to relief if it could not have exploited such an opportunity because its designer and manufacturer, Hanhwa Korea, had chosen to no longer design and manufacture for it. But in my view, the Hanhwa parties' position is not completely accurate, particularly if Directed could have exploited the opportunity by a non-Hanhwa Korea means. 2829 Further, the Hanhwa parties say that Directed persists in a claim that it has lost an opportunity with respect to the supply to Hino notwithstanding that it apparently accepts that Hanhwa was not successful in winning this business, and even where Directed itself apparently successfully exploited the opportunity. For example, Lee's evidence was that: Daniel Petrovski from Hino subsequently asked Hanhwa Aus to participate in a tender for its work. I was subsequently informed by Johnny that he had a telephone conversation with Petrovski around July 2018 in which Petrovski notified Johnny to the effect that Hino had chosen Directed's tender over that of Hanhwa Aus. Hanhwa Aus does not supply and has never supplied Hino directly. 2830 Indeed, Tselepis confirmed that Directed is still providing telematic services to users of Hino trucks, presumably in association with an AV unit supplied by Directed. So, Directed still seeks relief in respect of an opportunity which Hanhwa Korea did not exploit and which Directed did. 2831 But in my view, all of this goes to the question of remedy (if any) rather than establishing a defence to misuse per se. 2832 Now the Hanhwa parties have also made other points concerning the SuperDAVE. 2833 The Hanhwa parties say that to the extent to which the relevant matters occurred and Meneses was involved in them, they were not activities carried out by him in breach of his obligations to Directed, much less part of a dishonest and fraudulent design. But I disagree for the reasons I have previously set out. 2834 Further, they say that if Hanhwa Korea was not able to utilise information provided to it with respect to the testing and the like of the DIR8000 for its own purposes in the event that its commercial dealing with Directed did not proceed, whether by reason of failure to agree on price or otherwise, then it would effectively compel Hanhwa Korea to treat solely with Directed notwithstanding that there was no concomitant obligation upon Directed, much less any agreement in relation to price. But in my view such an argument is spurious. 2835 I reject the Hanhwa parties' arguments. They misused Directed's confidential information in relation to the SuperDAVE and other opportunities as I have addressed earlier. Directed Specification (radio specification) 2836 Directed says that the use by the Hanhwa parties of the Directed Specification was not authorised and constituted a misuse of Directed's confidential information. Called "DE01 Radio Specification", the software the subject of the specification enables the AV units to communicate with the telematics units. I will address Directed's claims against the Gridtraq parties later. Let me begin with some facts. 2837 Vardon created the Directed Specification on 20 February 2014 after some development work. Vardon created various versions. It was confidential. 2838 When the Directed Specification was developed in 2014, IAL was the only customer with telematics and audio visual navigation connectivity. It became Directed's standard communication protocol. It was implemented for communication between all of Directed's AV units and its telematics units, including those supplied to IAL between 2014 and 2018. 2839 Vardon provided the Directed Specification and versions thereof to Tselepis, Meneses, and sometimes to Peter Berlin, Directed's server developer. 2840 On 7 May 2014 at 9:14 pm Vardon circulated to Tselepis (copied to Berlin) a radio specification which was said to be draft 1. The document attached described itself as "DE01 Radio Specification" with Vardon as the author. 2841 The attached email stated: Okay, after much faffing about, I have put together a draft for the Radio Specification. It is fairly generic and extensible so it should allow a lot of room to move on the part of the Radio guys without having to make too many changes to the basics of the spec. So, if you guys could just give it a quick once over and then if you are happy with it, can you pass it on to Johhny and Dylan? Now onto formalising the testing regime. 2842 At 9:20 pm, Tselepis responded: Thanks Dave, Will go through it tomorrow. Please keep in mind that Dylan had nothing to do with this at this stage. So no information is to be passed on to the Gridtraq boys at this stage. 2843 At 9:11 am on 8 May 2014, Vardon responded: Thanks for that and not a worry, I don't intend on sharing with the gridtraq guys at any point soon. Though it would be good if the radio guys can look at it and see if they have any issues with it. 2844 Later that day at 3:36 pm, Tselepis forwarded the specification to Lee (copied to Meneses) in the following terms: Junior, Here is a copy of the radio specification communications protocol between the GSM unit and the radio via RS485. Please forward to your software engineer to start implementing into radio. If any problems please come back to us ASAP. Please confirm that you have implemented the RS485 interface into the radio hardware. ***Please Note that this document is Confidential and should only be between Me and You and Johnny. NO ONE ELSE! *** 2845 The specification was marked "For Internal Use". An introductory paragraph was in the following terms: The purpose of this document is to define the Communications interface for use between the Radio and the tracking device. It is designed to be an ASCII based text protocol with a leaning towards XML mark-up simplified for use on an embedded system in order to provide both the maximum compatibility with various interface technologies [AT Command set etc..] as well as to make human user interaction far simpler than an binary based system. Also, the use of text makes error checking simpler in that single bit errors will tend to invalidate the entire command packet rather than potentially allowing a broken packet to be handled. The primary method of interacting with the Radio is the idea of a 'Message'. The Message is the text to be displayed as well as the conglomeration of all the other potential entities that a Message can possess. The entities that can be associated with a message are as follows. 2846 Further, the Directed name in capitals was on each page of the document in the top left hand corner. 2847 Further, it would seem that the version of this Directed Specification may have derived from a radio serial protocol specification issued on 6 December 2012 authored by Vardon for Varteknik, an entity not associated with Directed. 2848 On 8 May 2014, Tselepis provided the Directed Specification to Lee by email so the Hanhwa parties could test the AV units they were to supply to Directed. This was to ensure they could communicate with the telematics units. Directed planned to use the Directed Specification for the DIR8000. The Directed Specification stated it was for "Internal Use". When providing it to Lee, Tselepis warned him of the confidential nature of the information. 2849 Now in the event that the purchasers of the Isuzu trucks installed with the Directed telematics units wished to have telematics features available through the AV unit, such as driver identification, two way messaging, CAN diagnostic data and driver violation features, then the relevant Hanhwa AV unit installed in those trucks needed to communicate with the Directed telematics unit and the Directed Specification would have been required for it to do so. Directed's portal/platform software utilised the Directed Specification to pass on communications and commands between the portal/platform and the Directed telematics unit and Directed AV units installed in customer vehicles. Directed's AV units supplied to OEMs who required telematics functionality had software libraries that enabled them to communicate with the Directed telematics platform using the Directed Specification. 2850 The Directed Specification appears to have been updated. On 30 March 2016, Vardon forwarded an update to, inter-alia, Tselepis and Meneses. On the same day this update (said to be revision 0.10) was forwarded by Meneses to Lee. 2851 This updated version then seems to have been internally circulated within Hanhwa Korea including to Oh on 30 March 2016 and 11 April 2016. 2852 A further update (revision 0.15) then seems to have been circulated on or after 29 June 2016, but with all reference to Directed removed. 2853 On 17 November 2016, Dylan Hartley sought by email from Lee the Isuzu radio protocol. In response, Hartley was sent the Directed Specification on 18 November 2016. 2854 On 31 March 2017, Oh of Hanhwa Aus referred Dylan Hartley to an attached "ISUZU Radio specification" data, which was a version of the Directed Specification created by Vardon on 29 June 2016. 2855 Further, on 19 December 2017, Lee forwarded to the Hartleys and Davidson a copy of the email that Tselepis had sent to Lee over 3 years earlier on 8 May 2014 at 3:36 pm, which I have reproduced above, together with another copy of the original version of the Directed Specification (version 0.1) produced on 7 May 2014 but with all reference to Directed redacted. Lee's email just asked the question: "What is this one??". The earlier Tselepis' email had the email warning. 2856 Now the Hanhwa parties accept that the specification would constitute a species of information that would attract protection as confidential information. They further accept that the circumstances of its provision to Hanhwa Korea are such that it could not be used otherwise than for the purposes of facilitating communication between the Hanhwa Korea designed and manufactured DIR6200 and the telematics unit supplied by Directed. 2857 Further, they accept that the specification in its original form, when first provided to Hanhwa Korea in 2014, did have the confidentiality marker noted on it, although numerous other versions of the specification were also later provided to Hanhwa Korea. And they accept that the information was relevantly confidential. However, they say that it was not used. 2858 Now Directed complains of various instances of use by the Hanhwa parties. The first use is said to be on 18 November 2016 by email from Oh. The second use is said to be on 31 March 2017 by email from Oh. And the third use is said to be on 19 December 2017. But they say that the context of each alleged use is important. 2859 On 17 November 2016, Dylan Hartley sought a copy of the Isuzu radio protocol "to finish the integration for telematics" from Oh and Lee. The integration was in relation to the integration of the Hanhwa manufactured RA7000 or safety screen and the Gridtraq telematics unit, namely, the CPU. 2860 Gridtraq were experiencing difficulties in establishing connectivity between the two. Lee responded "Irene, Talk to Daniel today.". In purported response to Dylan Hartley's request, he was sent the Directed Specification on 18 November 2016. 2861 On 9 January 2017, in an email not copied to Lee, Oh uploaded files to a Dropbox including the "Protocol data sheet of Isuzu unit". 2862 On 10 January 2017, Dylan Hartley emailed Oh at her Leemen Korea address copying in Lee, Allen Hartley and Davidson. On the face of the email it appears to deal only with "Firmware". Oh responded in relation to various matters, none of which on their face refer to anything answering the description of the Directed Specification. 2863 On 31 March 2017, some 10 weeks later, Oh, who was now using a Hanhwa Aus email address, sent a four point email to Dylan Hartley, which Allen Hartley, Davidson and Lee were copied. The email attached a document called "Radio – Specification – Rev0.15.pdf." 2864 Now none of this assists the Hanhwa parties. The fact is that Lee and Oh should not have so circulated it. 2865 As to the other allegation of use being on 19 December 2017, Lee's email read "What is this one??.". Lee said that he sent this because he wanted to know if this was a document that Directed was referring to in its statement of claim. Whether or not I accept this explanation, the fact is that it should not have been sent. 2866 In my view, each communication to Dylan Hartley by the Hanhwa parties was strictly an unauthorised use of Directed's confidential information. But a different assessment is warranted concerning the Gridtraq parties which I will discuss later. CAN Bus information 2867 In relation to CAN Bus data and vehicle parameters insofar as this concerns claims made against the Hanhwa parties, I have set out my principal conclusions in annexure E, based principally on the factual matters identified earlier concerning the Hanhwa parties. The PPAP Documents, including the MFL, GUI and renderings 2868 Now to supply a product to IAL, including relevantly an AV unit, Directed had to submit a PPAP which included critical information about the AV unit. This included the MFL, the GUI, the Owner's Manual, renderings, Bill of Materials, Drawings, Warranty, Dealer Trouble Shooting Guide, Product Failure Investigation Report and Installation Instructions. Its provision is integral to the supply of product to IAL. 2869 Summers, Mills and Tselepis created the first PPAP for the DIR4800, inserting documents into a master document to create it. 2870 The PPAP submitted and approved by IAL for the DIR6200 was compiled by Mills when he was a Directed employee. He and other Directed employees also created a significant number of its component documents, each of which are claimed as copyright works in their own right. Directed has identified those authors who were Directed employees. 2871 Some of the works were created in whole or part by Hanhwa Korea employees, for example, the MFL, GUI, rendering and Owner's Manual, for Directed, pursuant to the terms of the Hanhwa Enterprise / Hanhwa Korea Agreement. The MFL and GUI were determined through a process of collaboration between employees of Directed and Hanhwa Korea. Similarly the MFL, GUI and rendering for the DIR8000, were determined through a process of collaboration between employees of Directed and Hanhwa Korea. 2872 Now Hanhwa needed a PPAP for presentation to IAL with its HAU8000 and its LM18I. For this purpose, it copied extensively from Directed's DIR6200 PPAP. Similarly the MFL and GUI for the DIR8000 were used to create the MFL and GUI for the HAU8000 and its LM18I. 2873 The PPAP submitted and approved by IAL for the DIR6200 was provided to me in the opening addresses. Directed's PPAP is a compilation, which contains an array of works, which for the purposes of the case might be likened to chapters in a book. Copyright is claimed by Directed in the whole of the PPAP book with respect to literary and artistic works within it, save the Parts Submission Warranty, Confirmations regarding Master Sample, Compound Changeover Request Form and Bill of Materials, which it appears were created by Mills. 2874 A soft copy of the PPAP was on Directed's K drive which was copied by Summers at Meneses request in May 2017. It was most likely used as the source for the Hanhwa parties' compilation of the PPAP for the HAU8000 commenced in May 2017. Lee deposed that Mills was responsible for and did prepare the Hanhwa PPAP for the HAU8000. This was largely done by copying key elements of the DIR6200 PPAP. Copies of Hanhwa's PPAPs for the HAU8000 and LM18I were provided to me during opening addresses. 2875 Between 15 May 2017 and 22 September 2017, Mills and Oh in Australia exchanged email communications, most of which were copied to Lee, in relation to the use of parts of the Directed PPAP for the DIR62000. Amendments were made to documents in the Directed 6200 PPAP to create a draft PPAP for the HAU8000. 2876 On 10 August 2017 and following, Lee and Shanks exchanged emails, copied to Meneses at the Meneses Hanhwa email address, in relation to the creation of the PPAP for the HAU8000. Lee proposed to submit the PPAP that day by dropping off a hard copy and files on a USB but he needed Isuzu part numbers. Shanks responded advising that IAL would not approve the PPAP until he had audited Hanhwa's facilities and had obtained final approval for the project. 2877 On 21 and 22 September 2017, Humphries and Lee exchanged emails, copied to Shanks and Meneses at the Meneses Hanhwa email address, in relation to the sample HAU8000 units and the PPAP for the HAU8000 to be delivered on Monday, 25 September 2017. Humphries advised that he was seeking installation instructions as soon as possible. The HAU8000 PPAP was substantially ready as at 22 September 2017. However, it was not yet finally completed as it needed the installation instructions and Isuzu part numbers for the bill of materials and some other documents. 2878 Lee proposed to submit the PPAP on 25 September 2017 by dropping off a hard copy and files on a USB, but he needed Isuzu part numbers. On 26 September 2017, Meneses asked Directed staff, including Jaffe and Proghios, for a copy for each item as per the Directed PPAP list. These were provided to him. Meneses needed this for Hanhwa Aus to provide the HAU8000 to IAL. 2879 In my view, the Hanhwa parties copied chapters of the Directed DIR6200 PPAP and the documents created for the DIR8000 in breach of confidence. 2880 The PPAP framework for the first PPAP created by Directed for supply of AV units to IAL was created by Tselepis, Summers and Mills during the course of their employment by Directed. The cover page records that the document was prepared by Tselepis on 13 June 2013. The cover page has the name of the author (Tselepis) and the date of creation. 2881 Different types of MFLs for the DIR8000 were created by Hanhwa Korea for Directed with input from Directed. Version A was in a presentation style with images from the GUI. Version B was like a shopping list of features which would get ticked off by Directed and IAL. 2882 The MFL included in the DIR6200 PPAP is in the Version A presentation style. The MFL was created by Hanhwa Korea for Directed with input from Directed's employees for the purposes of the development, marketing and sale of the DIR6200 to IAL. The MFL includes photographs taken by Summers during the course of his employment by Directed. Directed is the equitable owner of copyright in the MFL for the DIR6200 unit and the legal owner of copyright in the Directed photographs. 2883 On 27 April 2017, Mills sent an email from the Mills Hanhwa email address to Lee and Meneses at the Meneses Hanhwa email address attaching an MFL for the HAU8000 and a comparison schedule comparing the features and specifications of the DIR8000 and the HAU8000. 2884 In evidence was a marked-up version of Hanhwa's MFL comparison between the DIR8000 and HAU8000 identifying the reproduction of text and images from the DIR8000 Shopping List MFL. 2885 In evidence was a marked-up version of the MFL included in one of Hanhwa's draft PPAPs for the HAU8000 identifying the reproduction of text and images from the DIR8000 presentation MFL. This document includes the Directed photographs. 2886 In evidence was a marked-up version of the MFL for the HAU8000 signed off by IAL identifying the reproduction of text and images from the DIR8000 presentation MFL. This document includes the Directed photographs. 2887 Also in evidence was a marked-up version of the MFL included in Hanhwa's PPAP for the LM18I identifying the reproduction of text and images from the DIR8000 presentation MFL. This document includes the Directed photographs. 2888 In evidence was a marked-up version of one of Hanhwa's draft PPAPs for the HAU8000 identifying the reproduction of text, images, forms and documents from the DIR6200 PPAP. The reproductions include the table of contents and section cover sheets, the MFL, the equaliser graphs, the PCP flow diagram, the installation instructions, the dealer trouble shooting guide, the quality control requirements sheet and the owner's manual. 2889 Other marked-up versions provided to me of other documents prepared by Hanhwa for inclusion in the PPAP for the HAU8000 identifying the reproduction of text, images forms and documents from the DIR6200 PPAP, include reproductions of the installation instructions, the product failure investigation report and the changeover radio request form. 2890 In evidence was a marked-up version of the equaliser graphs included in Hanhwa's PPAP for the LM18I identifying the reproduction of text and images from the equaliser graphs included in the DIR6200 PPAP. 2891 In evidence was a marked-up version of the PCP flow diagram included in Hanhwa's PPAP for the LM18I identifying the reproduction of text from the PCP flow diagram included in the DIR6200 PPAP. 2892 In evidence was a marked-up version of the changeover radio request form included in Hanhwa's PPAP for the LM18I identifying the reproduction of text from the changeover radio request form included in the DIR6200 PPAP. 2893 In evidence was a marked-up version of the quality control requirements sheet included in Hanhwa's PPAP for the LM18I identifying the reproduction of text from the quality control requirements sheet included in the DIR6200 PPAP. 2894 The bill of materials also formed part of the PPAP. On about 26 September 2017, Meneses requested Directed staff to provide him with copies of, amongst other things, all bills of materials for all Isuzu products ordered in 2017. Given the timing of the request in relation to the preparation of the PPAP for the HAU8000 for submission to IAL, it is clear why they were sought and for what purpose they were used. 2895 Now the Hanhwa parties made the following preliminary points. 2896 First, a PPAP is a standard document issued as part of the manufacturing and supply process. To that end, documents which form part of the PPAP such as parts submission warranty documents, bills of materials and change over requests all mirror earlier TechAudio PPAP documents. 2897 Second, much of the content of the PPAP is referable to the particular product, for example, the line drawings and user manual in the DIR6200 PPAP relate to the DIR6200, and the equivalent in the HAU8000 PPAP relate to the HAU8000. 2898 Third, much of the relevant content of the various PPAPs was authored by the Korean engineers, for example, the line drawings, the test results, the MFL, the owners' manual and the GUI. 2899 Fourth and relatedly, much of the HAU8000 PPAP and the LM18I PPAP was authored in Korea. 2900 But none of these points are a complete answer to Directed's case. 2901 Further, as to the PPAP comparisons that were in evidence, the Hanhwa parties made the following points. 2902 First, take the Section 1 – Part Submission Warrant – DIR6200; HAU8000; LM18I. Now the template is similar, but the template is identical to the TechAudio template. The Directed employees took the template with them when they went to Directed. 2903 Second, take the Section 2 – Engineering and Appearance approvals – DIR6200; HAU8000; LM18I. These are all emails to and from IAL. There is no copyright in the DIR6200 emails and there has been no infringement in any event by these sections in the HAU8000 and LM18I PPAPs. 2904 Third, take the Section 3 – Sample Product Statement – DIR6200; HAU8000; LM18I. The Hanhwa parties say that this document is not the product of skill or exertion. It does not appear in the HAU8000 PPAP but does in the LM18I PPAP. In any event it is identical to the TechAudio document. 2905 Fourth, take the Section 4 – Design Records including the MFL – DIR6200; HAU8000; LM18I. The MFL for the DIR6200 was prepared by Hanhwa Korea. Some of the drawings were as well. One document was prepared by Kornix Technology. Some of the pages may have been prepared by Directed. The equivalent sections of the design records for the HAU8000 and LM18I were all prepared in Korea for different units. There is some similarity between the box parts of the DIR6200 and the equivalents for the HAU8000 and the LM18I. 2906 Fifth, take the Section 5 – Dimensional Results – DIR6200; HAU8000; LM18I. The two pages for the DIR6200 bear no resemblance in form or substance to the much larger sections for the HAU8000 and the LM18I, both of which on their face have been prepared in Korea. The two pages in the DIR6200 PPAP are identical to the TechAudio document. 2907 Sixth, take the Section 6 – Test Results – DIR6200; HAU8000; LM18I. About half of the test results for the DIR6200 were prepared by employees of Hanhwa Korea. The templates for the balance have similarities, but the substance differs. It is probable that the template is a standard form document based on an earlier TechAudio version. In any event, the Hanhwa parties say that the creation of the template does not warrant copyright protection. 2908 Seventh, take the Section 7 – Process Flow diagram – DIR6200; HAU8000; LM18I. The format of the process flow diagram for the DIR6200 replicated the one taken from TechAudio. The versions for the HAU8000 and the LM18I are as a matter of form different and different as a matter of substance. 2909 Eighth, take the Section 8 – Process Control Plan – DIR6200; HAU8000; LM18I. The smaller version for the DIR6200 bears little resemblance to the larger and Korean created versions for the HAU8000 and the LM18I. The substance is different. 2910 Ninth, take the Section 9 – Process FMEA – DIR6200; HAU8000; LM18I. As a matter of substance the content differs, particularly with the far larger LM18I. Again, it is probable that the template was taken from TechAudio. The Hanhwa parties say that this does not warrant protection. 2911 Tenth, take the Section 10 – Bill of Materials – DIR6200; HAU8000; LM18I. The template has similarities but the content is different. The template of the DIR6200 was taken from TechAudio. The Hanhwa parties say that this does not warrant copyright protection. 2912 Eleventh, take the Section 11 – Performance Data – DIR6200; HAU8000; LM18I. The substance is different, as is the form. 2913 Twelfth, take the Section 12 – Fitting Instructions – DIR6200; HAU8000; LM18I. The fitting instructions for the LM18I are different in form and substance. The steps for the HAU8000 are different to the steps for the DIR6200. And the photos are different, save for the photo accompanying step 1. The fitting instructions for the HAU8000 were prepared by Palone, but not in the ordinary course of his employment with Directed. 2914 Thirteenth, take the Section 13 – Diagnostics – DIR6200; HAU8000; LM18I. The DIR6200 includes a one page product failure investigation report (PFIR), a one page compound changeover request form, a one page changeover radio request form, and a 31 page Isuzu Care Trouble Shooting Guide. In the case of the HAU8000, only the 3 pages comprising the changeover radio request form, the PFIR and the compound changeover request form appears. In the case of the LM18I, only a similar looking changeover radio request form and compound changeover request form appear, but not the PFIR form. In neither the HAU8000 nor the LM18I does the trouble shooting guide appear. The compound changeover request form in the DIR6200 was clearly based on the TechAudio form. The other two templates were likely taken from TechAudio as well. The Hanhwa parties say that this does not warrant copyright protection. 2915 Fourteenth, take the Section 14 – Quality Requirement Sheet – DIR6200; HAU8000; LM18I. On the face of the form, it appears that the document is an IAL document. It does not appear in the HAU8000 PPAP. 2916 Fifteenth, take the Section 15 – Owners' Manual – DIR6200; HAU8000; LM18I. The owners' manual for the DIR6200 was created by Hanhwa Korea. There is no equivalent in the HAU8000 PPAP. The owners' manual relates to the particular unit and as such the content of the LM18I manual is different to that of the DIR6200. 2917 Sixteenth, take the Section 16 – GUI – DIR6200; HAU8000; LM18I. The GUI for the DIR6200 was created by Hanhwa Korea. The GUI is specific to each unit and as such the content of the GUI for the HAU8000 and the LM18I is different to that of the DIR6200. 2918 Seventeenth, take the Section 17 – Accessories – DIR6200; HAU8000; LM18I. The drawings for the accessories for the DIR6200 show that they were created by Palone. The accessory drawings for the HAU8000 and the LM18I were created by Hanhwa Korean engineers and are different to the DIR6200. 2919 But even accepting that many of these points may have some substance, I do not think they completely answer Directed's case. In respect of the DIR6200 PPAP, in my view Hanhwa copied extensively from this for the purposes of the HAU8000 and LM18I PPAPs, even accepting that some elements of the PPAP are the technical data and even assuming technical differences in the units. I may hear further from the parties if further precision is required. 2920 Further, with respect to the MFL, GUI and renderings for the DIR8000, and the alleged copying of same for the HAU8000 PPAP, Directed accepts that they were created by Hanhwa Korea, as it does for the DIR6200's MFL, GUI, Owner's Manual and Equalise Graphs, but says that they were created with input from Directed. I accept this. 2921 Let me at this point say something about GUIs. 2922 The GUI for the DIR8000 was created by Hanhwa Korea for Directed with input from Directed's employees for the purposes the development, marketing and sale of the DIR8000 to IAL. The GUI includes the Directed photographs. 2923 In evidence was a marked-up version of Hanhwa's GUI for the HAU8000 as at April 2017 identifying the reproduction of content from Directed's GUI for the DIR8000 as at December 2015. Girgis and Siolis reviewed these GUIs for the DIR8000 in and for the HAU8000 and they appear to them to be substantially the same. 2924 In evidence was a marked-up version of Hanhwa's GUI for the LM18I as at March 2018 identifying the reproduction of content from the DIR8000 GUI. Girgis compared the GUI documents for the HAU8000 as at 5 April 2017 to the LM18I GUI as at 16 March 2018 and whilst it appeared to him that there have been many changes that have been made to the GUI for the LM18I, there are also a lot of screens that are very similar. I accept his evidence. 2925 Let me say something about installation instructions. 2926 Summers and Palone created Directed's installation instructions for the DIR6200 during the course of their employment by Directed. The photographs at Step 1 and Step 3 of the DIR6200 PPAP were taken by Summers during the course of his employment by Directed. 2927 During the search at the Mills House, a copy of Directed's installation instructions for the DIR6200, modified for the HAU8000 was located. This version bears handwriting that appears to be that of Mills. During the search at the Brooklyn premises, a copy of Directed's installation instructions for the DIR6200, modified for the HAU8000 was located. Further, the Hanhwa Aus installation instructions appear to have been prepared by Palone, with handwritten amendments by Mills. 2928 On 25 October 2017, Mills sent a version of the Hanhwa installation instructions for the HAU8000 unit to Shanks. These installation instructions appear to have been prepared by Palone and been checked by Mills and by Shanks and approved by Meneses and Lee and included the further Directed photographs that I have just identified. 2929 Dane created the Trouble Shooting Guide during the course of his employment by Directed. Dane created the Warranty Policy during the course of his employment by Directed. The Quality Control Requirements Sheet is a Directed form DIR014 created by employees of Directed during the course of their employment by Directed. Summers, during the course of his employment by Directed, and Lee created the Owner's Manual for the DIR6200. It included the first set of Directed photographs that I mentioned. Oh provided a link to the Directed Owner's Manual to employees of Hanhwa Aus. Mills created the PCP Flow Diagram during his employment by Directed. The Equaliser Graphs (colour line graphs) were created by Hanhwa Korea for Directed for the purposes of the sale by Directed of the DIR6200 to IAL. 2930 Directed does not challenge that the MFL, GUI, Owner's Manual and Equaliser Graphs in the DIR6200 PPAP, the MFL for the DIR8000, the GUI for the DIR8000, and renderings of the DIR8000 were created by Hanhwa Korea, albeit with input from Directed. 2931 Rather, Directed says it is the equitable owner of copyright in the works and seeks declaratory and injunctive relief to that effect on the basis that such documents were made for the exclusive benefit and use of Directed, which was entitled to claim copyright ownership in such documents. An assignment of such copyright is sought in the present proceeding and an injunction restraining the Hanhwa Parties from continued use of such works. 2932 I will hear further from the parties as to whether Directed is entitled to such relief. Directed's computer drives 2933 The evidence establishes the large-scale downloading and appropriation of Directed's confidential information contained on computer drives by Meneses and Mills for the benefit of the Hanhwa parties. 2934 Now the Hanhwa parties assert a lack of knowledge that Meneses and Mills had made the downloads. But it is clear that Meneses was Lee's business associate concerning Hanhwa Aus and that Meneses and Mills were working for Hanhwa Aus' benefit at Lee's instigation. Meneses and Lee both directed Mills' actions from late 2015 in the set-up of Hanhwa Aus and advancing the plans of Meneses and the Hanhwa parties to take Directed's business. The actions of Mills and Meneses since late 2015 were knowingly participated in by the Hanhwa parties. 2935 Lee knew about and encouraged such use of Directed's confidential information and the Hanhwa parties were the beneficiaries of such misuse. 2936 Now the Hanhwa parties assert that such confidential information was of no use and not used by them. But this is contradicted by the evidence that I have detailed. 2937 Now the Hanhwa parties also say that such information was taken to assist Hanhwa Korea in fulfilling its contractual obligations to Directed. But I reject this. Further, in so far as such information was given to Hanhwa Aus, Hanhwa Aus was not Directed's manufacturer and the information was used to further Hanhwa Aus' exploitation of commercial opportunities to the exclusion of Directed. 2938 Let me set out some of the detail, some of which I have dealt with elsewhere. Red hard drive 2939 Mills made several affidavits in support of his claims for privilege against self-incrimination. I have discussed this elsewhere. The red hard drive was one of the items seized from Mills. He has deposed in his privilege affidavits to its use. But I accept that these affidavits cannot be used as evidence against other parties. 2940 Now in about February or March 2017, whilst Mills was employed by Directed, Meneses asked him to copy electronic files from Directed's server onto a hard drive, being the red hard drive, which he then did. 2941 In April 2017, after he began working at Hanhwa Aus, Mills took the red hard drive to Hanhwa Aus' office at the Brooklyn premises. He uploaded the electronic files stored on the red hard drive to the following cloud storage locations owned by Hanhwa Aus: (a) DropBox, uploaded in about August 2017; and (b) OneDrive, uploaded in about March 2017. He also uploaded Directed's electronic files stored on the red hard drive to Microsoft Groups, a cloud based file sharing system within Outlook under the names "HANHWA AUS" and "HAU8000 Project". Now the "HANHWA AUS" group consisted of Mills, Chloe Jeon, Chris Kim, Erin Kim, Oh, Meneses, Lee, Shin and Tim Kim. And the "HAU8000 Project" group consisted of Mills, Oh and Lee. It would seem that these files were then modified. 2942 I agree with Directed that the fact that the files were uploaded to an "HAU8000 Project" group demonstrates that Directed's confidential information can be traced into the competitive HAU8000 project. Further, I also agree with Directed that the fact that Lee was a member of the HAU8000 group proves his involvement personally, and for and on behalf of the Hanhwa parties. The same holds true for Directed's confidential information traced into the HANHWA AUS group. 2943 Plainly, Directed's confidential information was generally available to Lee, Oh and other Hanhwa Aus employees so that they could mine it as required. 2944 Now although some of the evidence that I have just described is not directly admissible against the Hanhwa parties, nevertheless there is sufficient other evidence to infer the Hanhwa parties' receipt and use of some of such information. Meneses USB conduct 2945 In his privilege affidavits, Mills also deposes that in about April or May 2017, Meneses handed Mills, who was by then an employee of Hanhwa Aus, a USB which contained approximately 10MB of data. He asked Mills to upload the contents to Mills' Hanhwa Aus work PC, which he then did. 2946 Mills says he uploaded the contents of the USB to his Hanhwa Aus work PC and saved the files in a folder labelled "Directed" on the desktop. The contents of the USB contained various items within the 10 categories contained in Schedule A of my search order. He then returned the USB to Meneses. 2947 Mills is unaware of the current location of the USB. Directed has been unable to obtain it to inspect its contents. However, Mills' Hanhwa Aus work PC was seized from the Brooklyn premises. In the circumstances and as Directed submitted, I can infer that the Hanhwa parties' discovery, which includes copies of seized documents, contained the contents of the Meneses USB. 2948 Now again, accepting the limitations of the admissibility of Mills' evidence directly against the other parties, I am able nevertheless to infer from other evidence that Directed's confidential information was transferred by Mills to Hanhwa Aus so that it could be freely exchanged between Mills, Meneses, Lee and other Hanhwa representatives for the Hanhwa business, and to divert business opportunities from Directed. Seagate 2TB drive 2949 The 2 terabyte Seagate portable hard drive was seized from Meneses' house. A copy of the digital image comprising the Seagate 2TB drive was inspected in April 2020. Tselepis' conclusions following this inspection were not challenged. There had been a comprehensive downloading of Directed's bank of documentary materials in connection, amongst other things, with the supply of AV units, accessories and telematics services. K drive 2950 Directed's K drive was where all of Directed's confidential documents relating to finance, marketing, sales, service, production and testing matters are stored. These included line drawings, product pricing, owners and user manuals, installation guides, brochures and promotional material, spreadsheets (including PPAP documentation, data and spreadsheets), kit diagrams, photos, MFLs, spreadsheets, part numbers, forecasts, customer contacts and many other documents. Access to Directed's K drive was password protected and limited to those employees engaged in sales, service, engineering and production. A complete copy of the K drive was made by or for Meneses on three occasions: 6 October 2016; 10 February 2017; and 13 February 2017. That Mills' last day of employment with Directed was on 13 February 2017 indicates he was involved in copying the files for their use at Hanhwa Aus. 2951 As to the Summers copy of the K drive, Summers says that, in May 2017, Meneses instructed him to provide him with a complete copy of everything in the K drive which he did. Summers was challenged in cross-examination on the timeline. But the fact that the event took place was not challenged, and the timing follows a plausible sequence. Now that Mills no longer worked at Directed, Meneses needed someone else to help him get the latest copy of the K drive for either general or specific use within the Hanhwa Aus start-up. 2952 The K drive also contained a number of communications protocol specifications, in addition to the Directed Specification, a Diagnostics program, a CAN Monitor Tool program, a CAN Data Analyser program and Directed Telematics Unit Firmware. 2953 It can be inferred that these were sought and obtained for the benefit of the work which the Hanhwa parties undertook to develop AV units, telematics units and telematics services for their various offerings to OEMs. 2954 Now as to the contents of Directed's K drive and the sample of contents of the engineering drive, Lee gave the following evidence. 2955 As to the Directed cost breakdown sheet, Lee said that IAL provided this form to their suppliers who then put their own figures in the form. It is not a document that either Directed or the Hanhwa parties have prepared. As to the content of the documents, he said that he had not seen the information in these documents or corresponding emails prior to the proceeding. He said that he did not instruct Mills to send any of these documents. I do not accept this. In any event, in my view he actively encouraged such behaviour. 2956 As to the Directed cost study, he said that he had not seen this document before and he was not aware of who created it. Again I do not accept this. 2957 As to maps pricing, Lee said that he told Meneses he wanted to know the market prices for navigation chips supplied by NavNGo which supplies the maps. Meneses sent the document. As far as he was aware, NavNGo provided their pricing quotes to anyone upon request. Hanhwa Korea has also received a similar document in a similar format from NavNGo in respect of pricing quotes for the United Arab Emirates for navigation and map information. But in my view, Lee ought not to have sourced this material from Meneses. 2958 As to the excel spreadsheet pricing breakdowns for Mercedes and Fuso, he said that he had not seen these documents prior to the proceeding. I do not accept this. 2959 As to the New Zealand pricing lists, he had not seen the document prior to the proceeding. I do not accept this. 2960 He also gave evidence that he knew none of the following matters or gave instructions referable to them, namely, that: (a) Mills at Meneses' request copied electronic files from Directed's servers to a red external hard drive and Mills took the hard drive to Hanhwa Aus' Brooklyn premises in April 2017; (b) Summers, at Meneses' request, copied the entire contents of Directed's K drive to a USB which he then gave to Meneses, who then gave it to Mills; (c) Mills uploaded the documents on the USB to his work PC at his offices at Hanhwa Aus and Mills uploaded documents sourced from the hard drive or the USB to a cloud storage in a Dropbox account in the name of Hanhwa Aus or related entity (or to a one drive); and (d) Meneses copied the contents of Directed's file server on to a 2TB drive. 2961 But in my view, even if he did not give direct instructions, Lee encouraged such behaviour and was a willing beneficiary of it. 2962 Now the Hanhwa parties say that Directed has conflated documents obtained from Meneses' house and other sources with those obtained from Hanhwa Aus without distinguishing the same. Now that is true to some extent, but it may not matter given my view of the Hanhwa parties accessorial conduct and liability. They knowingly assisted in Meneses' and Mills' fraudulent and dishonest breaches of fiduciary duties. Q drive 2963 As to Directed's Q drive, the Q drive contains Directed's documents relating to quality assurance and all of the company policies, procedures and forms used for its business. These include training guides, incident reports, employee induction forms, product changeover forms, warranty policies, invoicing requirements, process flow diagrams, product evaluation guides, product testing procedures and occupational health and safety policies. Meneses' role at Directed was limited to the "OE" division. That he had information extending beyond his role at his home puts beyond doubt that he had no legitimate reason for possessing it. 2964 I am satisfied that the Hanhwa parties were provided with access to that material. Line drawings 2965 Let me now say something more on the question of line drawings. 2966 Each of the identified line drawings was an unauthorised reproduction of drawings created by employees of Directed during the course of their employment by Directed. 2967 These drawings were reproduced by the Hanhwa parties, apparently by Mills in the period July 2017 to September 2017. The Directed drawings which were reproduced by the Hanhwa parties were originally created by Directed employees in the period 2013 to 2017 and were used in the PPAPs supplied by Directed to the OEM customers. Each of the drawings bears the Directed logo, the name of its author (primarily Slade and Palone) and its date of creation. 2968 Those drawings created by Directed in or before May 2017 were stored in the K drive, which was downloaded by Summers at the direction of Meneses in around May 2017, and apparently subsequently loaded on to the Hanhwa Australia computer systems by Mills. 2969 The creation date of the Hanhwa reproductions of these drawings, which were in the period July to September 2017 and done apparently by Mills, indicates that they were used or proposed to be used in relation to the Hanhwa parties and Gridtraq parties offerings of AV units and accessories and telematics units to IAL, Mercedes, Fuso and Hino, including for marketing purposes with OEMs and for inclusion in Hanhwa Aus PPAP documents to be provided to OEMs. 2970 In the case of the Hino drawings, these were made by Palone in 2014. An example shows modification in July 2017. The unit had been supplied to Hino since 2014. Palone confirmed that he did not make versions of any such drawings for Directed in July 2017. It is likely that the reason why Mills and Hanhwa Aus created these versions of these drawings at this time was because Hanhwa Aus was pitching for the Hino AV unit (HAU8200) and accessories and telematics business. 2971 In the case of the Isuzu drawings, these were made by Palone in 2013. Examples show modification in July 2017. These drawings were for use in supply of the DIR6200 and its accessories to IAL (and show Isuzu part numbers) for TPMS layout drawings, reverse parking sensor drawings and DRL fog kits. The unit and accessories had been supplied to IAL since 2012 and 2013. Palone confirmed that he did not make versions of any such drawings for Directed in July 2017. It can be inferred that the reason why Mills and Hanhwa Aus created these versions of these drawings at this time was because Hanhwa Aus were to supply the HAU8000 and the same accessories to IAL. Substantial reproductions were seized from the Brooklyn premises pursuant to the search order or produced by IAL under subpoena. 2972 Slade was been employed by Directed since May 2017. When he started, Directed did not have line drawings for Directed's existing AV units and telematics units and accessories supplied to Mercedes Australia and Mercedes New Zealand. At the request of Meneses, Slade created these line drawings between May 2017 and July 2017. Some of these drawings were then provided by Meneses to Lee on 14 July 2017, and have a modification date in July 2017. 2973 On 18 July 2017 Meneses emailed some of the Slade drawings to the Daimler group, together with Directed pricing information, with the email communication having been blind copied to Lee. Another of the Slade drawings was created by Slade in June 2017 and modified by him in August 2017 for Directed. But the Hanhwa version discovered by Mills was created on 18 September 2017. It is likely that Meneses was still providing Directed's drawings to Mills right up to September 2017. It can be inferred that the reason why Hanhwa Aus obtained these versions of these Mercedes drawings at this time was because Hanhwa Aus and the Gridtraq parties were pitching for the supply of the Mercedes and Fuso AV unit and accessories and telematics business. 2974 Now the Hanhwa parties say that the line drawings were all created by Hanhwa Korea and sent to Directed. But that is not a sufficient answer to Directed's case, given that in part they had some input from Directed. Pricing and financial information 2975 The Hanhwa parties had information they should never have had when the search order was executed, including complete lists of Directed's stock items, cost breakdowns to enable Hanhwa to work out its pricing, Directed's analyses of the cost of production and gross profit, costs studies, and Directed's sales, pricing, costs and profit information for its products and services supplied to Mercedes, Hino, Volvo, Fuso, IAL, UD and Caterpillar from 2009 to October 2017. 2976 The volume of Directed's pricing and financial information said to have been appropriated and shared between Mills, Meneses and the Hanhwa parties was set out in Directed's annexure B. Directed's confidential information was said to have been used for the Hanhwa Aus start-up, and to pursue opportunities. I have largely accepted this case. 2977 I have set out in annexure F to these reasons, a modified annexure B to Directed's closing written submissions which sets out a table of Directed's confidential information which in my view was misused by Meneses, Mills and the Hanhwa parties concerning pricing, financial information and salary and employment information. I have made necessary modifications to the form of Directed's annexure B to accord with my reasons. 2978 Let me say something more on the question of prices. The Hanhwa parties say that Directed's cost prices were not confidential because they were the prices charged by Hanhwa Korea to Directed. Nor could the retail price charged by Directed to IAL (or other truck manufacturers) be regarded as confidential information. 2979 Nevertheless, the Hanhwa parties focused on three particular instances of price information adverted to by Directed in cross-examination of Lee. 2980 First, there was the email from Meneses to Lee of 27 August 2015, in which Meneses asked Hanhwa Korea to reduce the quoted price for the DIR8000 of USD 713 to USD 650, so that Directed could charge IAL AUD 1290, which was apparently the price that Directed as at 22 August 2015 proposed to charge to IAL. 2981 Now it is said that the information so passed on to Hanhwa Korea was not confidential information. 2982 Further and in any event, it is said that the circumstances of the communication of that price to Hanhwa Korea are not such as to give rise to any obligation on Hanhwa Korea to keep that information, that is, the potentiality of supplying the DIR8000 to IAL at AUD 1290, confidential and only for Directed's purposes. 2983 The Hanhwa parties say that the idea for a pitching of the product at that price to IAL had been communicated to Hanhwa Korea in an effort to advance Directed's commercial interests by persuading Hanhwa Korea to reduce its price of supply to Directed, that is, Directed's cost price. In circumstances where the information had been voluntarily disclosed by Directed to Hanhwa Korea because it was perceived to be in Directed's commercial interests, and not in Hanhwa Korea's commercial interests who was being asked to reduce its price charged to Directed, to bring about a reduction in the price, it is said that it cannot be suggested that Hanhwa Korea was not otherwise entitled to use the information provided for its own purposes. 2984 Second, it is said that the camera kit pricing offered by Directed to IAL in connection with the ancillary products for the DIR6200, which was the subject of Mills' email to Lee of 11 July 2017, was not misused. Assuming that the price charged by Directed to IAL for that unit was confidential, then the information was not used by Hanhwa Aus. Hanhwa Aus was proposing to supply a different product to IAL, which product was not ultimately provided in any event. 2985 Third, it is said that in respect of the prices apparently charged by Directed to IAL for DRLs, assuming that the prices charged to IAL were confidential, the information was of no use to Hanhwa Aus and was not used by it in connection with its pitches to IAL. 2986 But I do not accept the Hanhwa parties' points. Moreover, whether the information was used is not a complete answer. Other documents and information 2987 Let me refer to some specific documents that in my view for the most part involved a misuse of confidential information by inter-alia Lee and Hanhwa Aus. In doing so I will make reference from time to time to annexure F of my reasons to be read subject to the following comments. DIR.BROO.0320.0001 2988 I have referred to this document in annexure F rows 6.1.1(a) and (j). 2989 This document consists of Directed's cost breakdown sheets dated 30 November 2016. But this is not Directed's cost breakdown sheets for the SuperDAVE, rather they are cost breakdown sheets for accessory parts in connection with the DIR8000/Super DAVE. The cost breakdown sheets generally were provided by Directed to IAL on 8 December 2016. Now it is said that this was of no value to Hanhwa Aus. But this is not an answer. DIR.HOPP.0298.0001 2990 I have referred to this document in annexure F row 6.1.1(b). 2991 This document lists each item supplied by Hanhwa Korea and/or Leemen Korea to Directed. In so far as it lists the product numbers, the cost price and the date of last purchase then Hanhwa Korea was aware of that information. To the extent to which the right-hand columns of the document refer to Directed's list price it can be assumed that this refers to the sale price provided by Directed to IAL. The gross profit is necessarily the difference between the two. The Hanhwa parties say that in circumstances where the end customer was not required by the terms of its contractual arrangements with Directed to keep the price at which it was acquiring products from Directed confidential, and where it would have every incentive to disclose that price to a subsequent competitive alternative supplier, that sale price information cannot be confidential and nor as such can be the gross profit or gross profit percentage accordingly. 2992 Further, they say that the information could only have been potentially advantageous to Hanhwa Aus if Hanhwa Aus intended to sell the same product to IAL or some other customer. 2993 Now in my view this information was valuable. When it was put to Lee "Do you agree that this constitutes – you would regard this as sensitive information of Directed." Do you agree with that?", Lee answered "That's correct I have never seen that document." Now it was put to Lee that the document would be a useful document for Hanhwa Aus in carrying out its business to know Directed's price and profit margins for corresponding products (those products not being specified) that it was wanting to sell to customers. His answer was "If I have that document yes, it would be beneficial for Hanhwa Aus business but I have never seen that document." DIR.BROO.0099.0001 2994 I have referred to this document in annexure F row 6.1.1(c). 2995 This is a document headed DIR8000 (SuperDAVE) Cost Study which is undated and which records a cost excluding tooling of AUD 1,355 and for tooling of AUD 422,857.14. Given that this was not the Hanhwa Korea cost price to Directed for the unit or for the tooling, the utility of the document and what the document represents is unclear. But I accept that the information would be commercially valuable to Directed. REL0000040538 2996 I have referred to this document in annexure F row 6.1.1(d). 2997 It is an email from Mills to Meneses subject: Isuzu Quotations for DIR8000 and accessories which attaches a number of Excel spreadsheets with the messages "Johnny Isuzu quotes for Mr Shanks." These quotations subsequently formed the basis of the email from Meneses to Shanks on 8 December 2016. It is likely that Lee saw it at the relevant time, although he denied knowledge. HAN.001.025.3739 2998 I have referred to this document in annexure F row 6.1.1(e). 2999 This is an email from Mills to Meneses dated 2 December 2016, which relates to two products which bear particular part numbers and provides a suggested new price. It would appear to be a similar document to that which related to the DIR8000 quotation sent by Meneses to IAL on 8 December 2016. It is likely that this was used to create the corresponding documents submitted to IAL by Hanhwa Aus. REL0000086145 3000 I have referred to this document in annexure F row 6.1.1(f). 3001 This is an email from Meneses to Mills and Lee of 27 April 2017 which encloses a photo of an NavNGo publication which apparently lists Here Maps' standard prices. This document is relevant to pursuing the SuperDAVE opportunity. DIR.BROO.0262.0001 3002 I have referred to this document in annexure F row 6.1(g). 3003 This is a copy of an agreement between Mercedes and Directed, a hard copy of which was seized from Hanhwa Aus' premises. Lee was asked about this document. The first part of the questioning involved Lee being shown aspects of the document and asked to accept various matters. With reference to one particular price, Lee said that this was from the Hanhwa Korea to Directed price i.e. the price that Hanhwa Korea charged Directed. When it was put to him that these were Directed documents that were taken to Hanhwa Aus and that somebody at Hanhwa Aus was making use of them to do pricing calculations for Hanhwa Aus, Lee answered: I cannot confirm this is for Hanhwa Aus or this is for Hanhwa Korea. I cannot confirm. Because we didn't approach to … at that stage. So there is no point to calculate the price or selling price. But, again, I never seen that document and I never used the document, you know … 3004 I do not accept that Hanhwa Aus did not use the document. REL0000095017 3005 I have referred to this document in annexure F row 6.1.1(h). 3006 This apparently is an email from Mills to himself with pricing calculations for Fuso. The attached spreadsheets are historical pricing calculations carried out by Mills presumably whilst he was at Directed. I am not able to accept that this was of no utility to Hanhwa Aus. IZU.002.001.0026 3007 I have referred to this document in annexure F row 6.1.1(i). 3008 This is the handwritten notes of the IAL meeting of 30 June 2017. In my view, some part of this document was used for the purposes of a competitive pitch and that such use by Lee and Meneses was unauthorised. DIR.BROO.0320.0001 and HAN.001.034.7629 3009 I have referred to these documents in annexure F row 6.1.1(j). 3010 On 12 July 2017, Mills emailed to himself Directed's cost breakdown sheets for the DIR8000. These were the cost breakdown sheets sent by Meneses to IAL on 8 December 2016. Directed says that the cost breakdown sheets for the HAU8000 were created on 29 June 2017. But apart from small adjustments to pricing they were almost identical. They seem to have been prepared by reference to Directed's document. 3011 Now the Hanhwa parties had a number of answers to these documents but none of them were convincing. DIR.HOPP.0238.0001 3012 I have referred to this document in annexure F row 6.1.1(k). 3013 This is a document found at Mills' house which has handwriting on it and which in fact took the form of an email from John Allen at Daimler group to Meneses which asked for certain price information to be inserted in relation to parts apparently supplied by Directed to Mercedes. I am not prepared to accept that the document would have been useless to Hanhwa Aus. REL0000085691 3014 I have referred to this document in annexure F row 6.1.1(l). 3015 Now the Hanhwa parties say that neither the face of the email nor the attachments have anything to do with price. Now on 18 July 2017 Meneses emailed Daimler group representatives attaching part number updates for various parts, layout and part number documents which presumably Lee was blind copied in. Lee then sent it on to Mills on 18 July 2017. REL0000095558 3016 I have referred to this document in annexure F row 6.1.1(m). 3017 This is a listing of Mercedes New Zealand part number and prices of telematics kits. REL0000095744 3018 I have referred to this document in annexure F row 6.1.1(n). 3019 This is a spreadsheet which contains the cost of various products and prices charged to IAL. It lists both new and current products. It appears to be an amalgam of products supplied by both Hanhwa Aus and Directed, and was presumably kept by Mills as some sort of live document. It included the Isuzu Command Centre product (the name given to the HAU8000) which was supplied by Hanhwa Aus not Directed. 3020 Lee was asked about this document. The document was described to him as a "spreadsheet which analyses the cost of production and gross profit derived by Directed from its supply of the DIR6200 compared with the HAU8000." That description indicated that it was a document that contained information which was not solely that of Directed. 3021 Lee agreed that Directed's gross profit for the sales of the DIR6200 and associated products would be sensitive financial information, but that would only be of utility to Hanhwa Aus if it intended to sell the DIR6200 and associated accessories to IAL. DIR.DIRS.0418.0001 3022 I have referred to this document in annexure F row 6.1.2(o). 3023 This document does not on its face have the price at which Directed sold or licensed software to IAL. The only information relevant to the question of navigation contains the number of navigation licences purchased by Directed over an unspecified period. REL0000088313 3024 I have referred to this document in annexure F row 6.1.3(p). 3025 This is an email chain between Mills and Lee of 30 August 2017 with the subject line "Hanhwa Australia Purchase Orders". The email relates to purchase orders placed by Hanhwa Aus on Hanhwa Korea. That characterisation is clear when one looks at the bottom email which is sent to Bin at Leemen and attaches Hanhwa Aus purchase orders and says "any problems please discuss with Irene." Lee then responds to Mills and Bin "Sorry mate we will discuss tomorrow not accept TPMS price it has to be under USD140. Bin discuss with Mr Park regarding the parking sensor kit price." 3026 Plainly this was a conversation which related to the price at which Hanhwa Korea would supply Hanhwa Aus. The next email is Lee's email to Mills and others of 30 August 2017 in which he confirms a price and says "Please revise the PO and forward to Bin." Again this is the Hanhwa Korea price to Hanhwa Aus. Mills then seeks clarification from Lee that the TPMS has gone down in price and the parking senor has gone up in price. Lee said that Mills was right and then asked "what about sales figures for low mount kit at Directed". Mills then responds by giving the number sold, by which he either is referring to the number sold by Hanhwa Korea to Directed, or possibly by Directed to its end customers. He responds by saying that there were 140 sold as a high mount and 286 as a low mount. REL0000088125 3027 I have referred to this document in annexure F row 6.1.3(q). 3028 Directed asserts that it is a list of 50 or so products based on Directed's pricing (and that) the pricing was adjusted to give Hanhwa Aus a competitive advantage over Directed. It says that the misuse is apparent on the face of the email of 11 July 2017. 3029 Now the Hanhwa parties had a number of answers, none of which I found convincing. MIL.004.00305.0001 and HAN.001.034.7070 3030 I have referred to these documents in annexure F row 6.1.3(r). 3031 These relate to the DRLs in the context of potential supply to ICL. Lee agreed that it was clear that Mills and Oh were using Directed's pricing and profit information, but as Lee went on to explain when he confirmed that he did not ask Mills to "stop doing that" or did not tell Mills to "delete such information", which was then followed by the next answer: Well, that is – that's quite hard to answer because the DRL price that I made to offer to ICL was to a different product which is a new design and new harness. Because ICL didn't have any DIR6200 because the HAU51 harness didn't actually connect to the DAVE unit. So we – I wasn't – well, I didn't have a plan to supply DAVE unit to ICL. So it has to be a new development and also a new harness, and we need to match the regulation which is the … regulation. So it's not good benefit for Hanhwa actually but, yes. 3032 Now Lee was making the point that the information that Mills had related to the DIR6200 was of no assistance to Hanhwa Aus. But that is not a complete answer, and in any event I do not accept it. REL0000088113 3033 I have referred to this document in annexure F row 6.1.3(s). 3034 This is said to be relevant to the HAU8000 and constituted Directed's pricing for its cables. But what was being discussed was the prices charged by Hanhwa Korea to Directed, which was known to Hanhwa Korea. For example, the email chain starts on 12 July 2017 with Lee emailing Leemen Korea saying that he needs a price for the steering remote control for the new unit. The response comes back from Leemen Korea to Lee. Oh then sends it to Mills on 12 July saying that she is sharing the material cost for the steering wheel remote control and additional harness for HAU8000, that is, the price at which Hanhwa Korea was going to supply those items to Hanhwa Aus. That is then followed up by her email of 12 July at 7:09pm. Mills then responds: Hi Irene, Thanks. Nice and cheap pricing. So is that the actual price we pay? Or will Mr YS Lee charge more USD on top of this? Then as a comparison, Directed are getting charged $17USD for 10 metre (H Cam -C10m) and $15.50USD for 8 metre (H Cam – CO8M) but main cost is water proof connectors each end I believe. 3035 This was the price that Hanhwa Korea was charging Directed. Now it is said that this was not confidential to Directed. But of course, none of this should have been used to advantage Hanhwa Aus and was confidential against it. DIR.DIRS.0271.0001 3036 I have referred to this document in annexure F row 6.1.3(t). REL0000088402 3037 I have referred to this document in annexure F row 6.1.3(u). This document is described as Directed's pricing on camera extension. HAN.001.023.1015 3038 I have referred to this document in annexure F row 6.2.1(a). 3039 This document is an email from Mills to Meneses of 17 August 2016 with proposed pricing for IAL for the DIR8000. REL0000060981 3040 I have referred to this document in annexure F row 6.2.1(b). 3041 This is a document dated 21 November 2016 and contains workings as to the proposed price to be charged by Directed to IAL in respect of the proposed DIR8000 supply. A later version of the document was provided to IAL on 8 December 2016. DIR.BROO.0262.0001 3042 I have referred to this document in annexure F rows 6.2.1(c) and (d). 3043 This document lists the number of sales by Directed of product from January to September 2017 and additionally by reference to customer. It contained information as to the name of the customer and/or the number of products sold. Further, in so far as the information set out the revenues of Directed, neither Hanhwa Korea nor Hanhwa Aus would have otherwise had that information. Further, whether it was ultimately of assistance to Hanhwa Aus is not an answer. DIR.ASPE.0256.0001 and HAN.004.005.0311 3044 I have referred to the document(s) in annexure F row 6.2.1(e). 3045 This was seized from Meneses' house and also discovered by the Hanhwa parties. It is then asserted by Directed that the mere fact that there are multiple copies signifies its importance to the start up. Now the document lists each item of current Directed stock that had been supplied by Hanhwa Korea. But again, Hanhwa Aus should not have had this. HAN.004.006.0405 3046 I have referred to this document in annexure F row 6.2.2(f). 3047 This document is a Directed forecast for suppliers, that is, Hanhwa and Leemen. In accordance with the usual procedures followed by Directed and Hanhwa Korea, Directed provided Hanhwa Korea with non-binding forecasts. Lee was cross-examined about this document saying variously "This is for Hanhwa Korea which is my company as a managing director. So they need to support Hanhwa Korea for Hanhwa Australia." But again, Hanhwa Aus should not have had access to this. REL0000086316 3048 I have referred to this document in annexure F row 6.2.2(g). 3049 This is the email from Mills at Hanhwa to Oh of 4 April 2017 headed "Directed OE Forecast". Lee was cross-examined about this. He maintained that this was for Directed so that Hanhwa Korea could make an order for long term delivery forecasts. But again Hanhwa Aus should not have had access to this. REL0000086259 3050 I have referred to this document in annexure F row 6.2.2(h). 3051 This document dated 12 April 2017 is described as "Directed's foreshadowed purchase orders for products from Hanhwa Korea and Leemen Korea.". This is a document used by Mills to assist Directed in relation to the supply of product by Hanhwa Korea and Leemen Korea to Directed. Hanhwa Aus should not have had access to this. REL0000086260 and REL0000086185 3052 I have referred to these documents in annexure F rows 6.2.2(i) and (j). 3053 Hanhwa Aus should not have had access to this. Salary and employee information 3054 Now it seems apparent on the evidence that Meneses was the person deciding and giving directions on the salary and terms and conditions of employment by Hanhwa Aus of Directed's employees. In doing so, he misused Directed's salary and employment information. As part of the employee solicitation conduct, on 16 December 2016 Meneses obtained all salary packaging information from Floudas which he either provided to Lee or used himself for this purpose. 3055 Further, Meneses sourced and obtained employee contracts and the like which he forwarded to his own personal email address. 3056 Further, Meneses, at an earlier point, forwarded to Lee in soft copy one of Directed's standard employment contracts. An examination of the Hanhwa employment contracts used to solicit employees such as Mills, Dane and Palone reveals how Directed's standard contract was modified. They are in substance the same. 3057 Now Directed made reference to Palone assisting Hanhwa Aus whilst still a Directed employee. But Palone gave evidence that he was involved in a serious workplace accident at the beginning of March 2017 and that he was at home until about mid-2019. In any event, Dane's email to Meneses of 6 September 2017 reveals that Palone had evidently not returned to work at Directed by at least 6 September 2017. Consistently, Lee's email to Mills of 27 July 2017 records Lee's understanding that Palone was "ready to work now". In those circumstances, it cannot be said that representatives of Hanhwa Aus could be taken, in dealings with Palone, to have appreciated that he apparently remained on Directed's books throughout the relevant events of 2017. 3058 Now Lee says that he did not use this employment information. But the evidence suggests to the contrary. 3059 Further, the Hanhwa parties say that no further Directed employees actually moved from Directed to Hanhwa Aus. Accordingly, any misuse could only sound in nominal, if any damages. But that is not a matter that needs concern me for the moment. 3060 Further, in my view it is likely that the Hanhwa new starter form was created by reference to the Directed version. Other unlawful misuse of documents and objects 3061 Hanhwa's application for credit form was also a reproduction of Directed's form. 3062 Further, Meneses also provided confidential product insurance information of Directed to Lee, as requested by Lee. 3063 Further, on 14 August 2017, Pieries visited Hino and obtained information concerning Hino's plans for 2018. He sent his report to Meneses at Directed, who sent it to his personal email address. At this time Meneses was also working for Hanhwa. It seems that Lee subsequently had access to this. 3064 Further, on 6 October 2017, Meneses received an email and photos from Fuso for a new truck AV unit, and he sent it to Lee. 3065 Further, Hanhwa's product label was a reproduction of the Directed product label. 3066 Further, as to the files on a range of matters including further financial information, design documents and a MFL for the D-MAX, and telematics, Tselepis, Calleja, Pieries, Jaffe, Dane, Floudas and Pieris all gave evidence of their contributions by reference to specific examples. 3067 Now the Hanhwa parties knew or ought to have known that Directed's information, coming into their possession via Mills or Meneses was made for the exclusive benefit and use of Directed and not for their collateral use. Hanhwa Korea and Leemen Korea were also subject to relevant terms of the Hanhwa Korea agreement. 3068 Now the Hanhwa parties say that any downloads of Directed's confidential information by Meneses or Mills did not occur at the instigation or knowledge of Lee or Hanhwa Aus. But Lee was not a reliable witness. Further, Meneses' and Mills' actions are to be sheeted home to Hanhwa Aus. The conduct in question had no purpose other than to advance the interests of Hanhwa Aus. 3069 Further, it was clear to Lee that Meneses sent him confidential information both whilst he was employed by and after Lee asserts Meneses had left the employ of Directed. And it was clear that he was using it and provided it, at the request of Lee, to Lee to further the business of Hanhwa Aus. 3070 Further, I agree with Directed that it was clear to Lee that Mills had taken such confidential information after he left the employ of Directed and was using it and providing it at the request of Lee to Lee to further the business of Hanhwa Aus. Conclusions 3071 Let me draw some general conclusions, and specifically by reference to the possession or use of material by inter-alia Lee and Hanhwa Aus. 3072 Directed's confidential information was sought and used by Hanhwa Aus to pursue business opportunities. This was facilitated by the Hanhwa parties and of course Meneses and Mills. 3073 Directed's financial information inappropriately obtained by Hanhwa Aus included lists of Directed's stock items, its sales prices and gross profits derived from the sale of such items including Directed's sales, pricing, costs and profit information for all its products and services supplied to Mercedes, Hino, Volvo, Fuso, Isuzu, UD and Caterpillar for 2009 to September 2017. It also included Directed's cost breakdown sheets for the DIR8000 and its accessories to enable Hanhwa Aus to work out its pricing and Directed's study for supply of the DIR8000 and accessories with telematics pricing, detailing Directed's proposed pricing and profitability and proposed amortisation of tooling costs. It also included Directed's cost, pricing and profit information for the DIR6200. Further, it also included Directed's pricing for maps data supplied to NavNGo. 3074 Now the Hanhwa parties say that Directed's cost prices were not confidential and were known by Hanhwa Korea. But this does not justify exposure and use by Hanhwa Aus. Further, Directed's pricing information included non-Hanhwa supplied products. 3075 Now the Hanhwa parties also asserted that Directed's sale prices to its customers were not confidential. But there is no evidence that OEMs disclosed them to any third parties or that Hanhwa Aus obtained them other than by Meneses' and Mills' wrongful conduct. 3076 Further, the Hanhwa parties say that Directed's gross profit was not confidential. But Hanhwa Aus only obtained this by Meneses' and Mills' wrongful conduct. 3077 Let me conclude this part of my reasons by dealing with some general assertions of the Hanhwa parties. 3078 First, it is said that in so far as Directed's claim rests upon the downloads of Directed's confidential information, to the extent to which that conduct occurred it did not occur when Mills or Meneses were employed by Hanwha Aus. And it did not occur at the instigation or knowledge of Lee or Hanhwa Aus, much less Hanhwa Korea or Leemen Korea. But it is clear that this occurred in circumstances of advantage to the Hanhwa parties and with Lee's knowledge, perhaps not contemporaneous with the downloads but later. Moreover, the Hanhwa parties obtained the advantage of such egregious conduct. 3079 Second, it is said that there is no or no real evidence of any use by any of the Hanhwa parties, save for use by Hanhwa Korea of a handful of information in the interests of Directed for the purposes of enabling the supply by Hanhwa Korea of existing product to Directed. I disagree with this characterisation and have dealt with the detail elsewhere. 3080 Third, it is said that in so far as the claim rests upon the CAN Bus data and vehicle parameters extracted from the Mercedes truck, and assuming that the information extracted can be considered information of Directed rather than the manufacturer of the truck, the extraction occurred at Directed's premises in the presence of and with the assistance of Summers. It was authorised by Directed. It occurred for the purposes of dealing with the rear camera issues in the AV unit then being provided by Hanwha Korea to Directed. But I disagree with this characterisation of the evidence. 3081 Fourth, it is said that in so far as the claim rests upon Directed's financial information in the form of salary and employee information, there is no evidence of use. I disagree. 3082 Generally, I would reject these assertions of the Hanhwa parties. 3083 More generally, by the use by the Hanhwa parties for their own benefit of confidential information of Directed, Hanhwa Korea breached the Hanhwa Korea Agreement and the Hanhwa parties breached their equitable duties of confidence. 3084 Further, by their use of confidential information provided by Meneses and Mills to the Hanhwa parties other than for the purpose of the business of Directed, the Hanhwa parties induced Meneses and Mills to breach their employment agreements and were accessories to their breaches of fiduciary obligations and their equitable duties of confidence. And I should make one other point lest it is not clear already. The Hanhwa parties knew of the essential terms of Meneses' and Mills' employment agreements by no later than early 2017. Moreover, it would have been obvious to them that Meneses' and Mills' misuse of Directed's confidential information whether before or after the termination of their employment was a breach of their employment obligations. 3085 Further, and as I have said, the Hanhwa parties were knowing participants in Meneses' and Mills' dishonest and fraudulent breaches of their fiduciary duties. 3086 Let me now turn to the question of copyright infringement. I accept that there is some duplication in the matters I am about to discuss. Copyright infringement 3087 The relevant works the subject of Directed's infringement claims involve the PPAP for the DIR6200 and its contents, documents prepared in relation to the DIR8000 and its accessories, the Directed Specification, CAN Bus information and vehicle parameters, marketing materials, line drawings for product parts, and certain contents of the K drive. 3088 It is said that the works were created by Directed employees, by its contractor, Vardon or by Hanhwa Korea for Directed for the purposes of manufacturing or supplying products for Directed. 3089 Further, in the case of works created by Hanhwa Korea for Directed, Directed says that it is the equitable owner of copyright in the works and seeks declaratory relief to that effect on the basis that such documents were made for its exclusive benefit and use. It says that it is entitled to claim copyright ownership in such documents. An assignment of such copyright is sought as part of the relief in these proceedings. 3090 Further, Directed says that Meneses, Mills, the Hanhwa parties and the Gridtraq parties have engaged in unauthorised acts in relation to the works, and have aided each other in such conduct. I would accept this save for the Gridtraq parties. 3091 In my view, Meneses, Mills and the Hanhwa parties have engaged in various unauthorised acts in relation to many of the works. They have aided each other in such conduct. 3092 Now the Hanhwa parties deny that Directed has an equitable interest in works created by Hanhwa Korea. They also challenge originality in some of the works alleged on the basis that Directed's conduct did not constitute sufficient judgment, skill and/or authorship to attract copyright protection. Mills made similar submissions. 3093 Further, the Gridtraq parties also say that whatever reproduction there may have been by them of any of the copyright works the subject of Directed's claims against the Gridtraq parties, such reproduction has been ephemeral and trivial. Directed disputes this, but I accept this position of the Gridtraq parties if it is necessary to get to it. 3094 Let me say something briefly about various legal questions. 3095 First, in many instances, the whole of the copyright works or a substantial part have been reproduced without authorisation. Further, where there is deliberate copying, this may assist to more readily conclude that there is the requisite objective similarity between the infringing and copyright works or a substantial part of the copyright work. 3096 Second, the concept of authorisation embraces concepts such as sanction, approve or countenance. It seems clear that this includes the specific giving of permission or the extending of an invitation to do the act in question. And such permission or invitation may be express or implied from the circumstances. 3097 Third, in some cases, inactivity or indifference, exhibited by acts of commission or omission, may reach a degree from which an authorisation or permission may be inferred. In each instance, however, it will be a question of fact as to what is the correct inference to be drawn from the conduct of the respondent. Moreover, if a person including a director engages in, personally participates in or directs the relevant acts of infringement coupled with the power to prevent, this may be sufficient to demonstrate such sanctioning, approval or countenance, although something less than that may be sufficient. 3098 Fourth, let me say something about equitable ownership. Now as a matter of law, the author of a work is the first owner of any copyright subsisting in that work (s 35(2) of the Copyright Act). Now s 35 deals with the legal ownership of copyright but does not exclude the possibility that copyright might be owned in equity by some other person. Directed says that it was entitled to ownership of the copyright in the works created by Hanhwa Korea for use by Directed as a consequence of the relationship between them. 3099 On this aspect, let me further discuss Gold Peg. As I have said earlier, in Gold Peg it was held that the agreement between Gold Peg and Kovan Engineering included terms that were partly oral and/or to be implied as a matter of business efficacy that Kovan Engineering would not make any use on its own behalf of, and would keep confidential, the drawings created by it to manufacture Gold Peg's products, and it would not use the manufacturing drawings it created to manufacture products for Gold Peg other than for the purposes of manufacturing for Gold Peg. Further, whilst there was no express agreement between the parties as to the ownership of copyright in manufacturing drawings, there was a term that the intellectual property rights in manufacturing drawings based on the original works or any modification or enhancement of them in manufacturing drawings created by Kovan Engineering would be owned by Gold Peg. It was found that Gold Peg was entitled to equitable ownership, based on the oral and implied terms dealt with, which could be perfected by an assignment of the legal ownership. 3100 Now whilst the implied terms in Gold Peg were directed specifically to use of product drawings only, Directed says that the practical effect of them is the same as the implied term pleaded by Directed in relation to the drawings, designs, specifications, MFLs, GUIs, owner/user manuals, tooling or prototypes, samples and finished products created by Hanhwa Korea for the purposes of the design, development, testing, manufacture and/or assembly of prototypes, samples and finished products of the DIR8000 and its accessories. But of course I have not found for Directed on the implied terms that it has pleaded concerning the Hanhwa Korea Agreement. 3101 Now in Mastec Australia Pty Ltd v Trident Plastics (SA) Pty Ltd (No 2) [2017] FCA 1581, it was found that the applicant had made good its claims that it was the beneficial owner of CAD drawings concerning product designs for mobile garbage bins, and that the applicant was entitled to declarations that it was the beneficial owner of the CAD drawings concerning the product designs. 3102 In referring to Gold Peg, White J observed (at [123]) that: … there are numerous cases in which courts have found an implied term that the author of a copyright work will assign to the other party the legal title to the work when called upon to do so because the equitable ownership of the copyright does not belong to the author. Her Honour noted that frequently such an implied term has been found in cases of a commissioning arrangement for the preparation of copyright material, at [82]. 3103 Now Lightman J in Ray v Classic FM Plc (1998) 41 IPR 235 at 247 to 249 said: The issue in every such case is what the client under the contract has agreed to pay for and whether he has "bought" the copyright. The alternatives in each case are that the client has bought the copyright, some form of copyright licence or nothing at all … The general principles governing the respective rights of the contractor and client in the copyright in a work commissioned by the client appear to me to be as follows: (1) the contractor is entitled to retain the copyright in default of some express or implied term to the contrary effect; (2) … (3) the mere fact that the contractor has been commissioned is insufficient to entitle the client to the copyright. [Absent legislative provision] the client has to establish the entitlement under some express or implied term of the contract; (4) ... (5) where … it is necessary to imply the grant of some right to fill a lacuna in the contract and the question arises how this lacuna is to be filled, guidance is again to be found in [Liverpool City Council v Irwin [1977] AC 239]. The principle is clearly stated that in deciding which of various alternatives should constitute the contents of the term to be implied, the choice must be that which does not exceed what is necessary in the circumstances ... In short, a minimalist approach is called for. An implication may only be made if this is necessary, and then only of what is necessary and no more; (6) accordingly if it is necessary to imply some grant of rights in respect of a copyright work, and the need could be satisfied by the grant of a licence or an assignment of the copyright, the implication will be of the grant of a licence only; (7) circumstances may exist when the necessity for an assignment of copyright may be established. … [T]hese circumstances are, however, only likely to arise if the client needs in addition to the right to use the copyright works the right to exclude the contractor from using the work and the ability to enforce the copyright against third parties. Examples of when this situation may arise include: (a) where the purpose in commissioning the work is for the client to multiply and sell copies on the market for which the work was created free from the sale of copies in competition with the client by the contractor or third parties; (b) where the contractor creates a work which is derivative from a pre existing work of the client, eg when a draughtsman is engaged to turn designs of an article in sketch form by the client into formal manufacturing drawings, and the draughtsman could not use the drawings himself without infringing the underlying rights of the client; (c) where the contractor is engaged as part of a team with employees of the client to produce a composite or joint work and he is unable, or cannot have been intended to be able, to exploit for his own benefit the joint work or indeed any distinct contribution of his own created in the course of his engagement … In each case it is necessary to consider the price paid, the impact on the contractor of assignment of copyright and whether it can sensibly have been intended that the contractor should retain any copyright as a separate item of property; … 3104 But as White J stated, the examples given in Ray are not to be understood as though they are statutory provisions. On the contrary, Lightman J was stating them as examples only. White J continued (at [127]): On my understanding, the underlying rationale for the first example given in Robin Ray is the client's need to use the copyright to achieve the purpose for which the document was brought into existence. 3105 Now Directed says that it is entitled to require that Hanhwa Korea give an assignment to give effect to Directed's equitable title in the relevant materials being works created by the Hanhwa parties pursuant to its obligations for Directed, including those associated with the PAPP for the DIR6200. 3106 I will hear further submissions on whether I should direct an assignment of copyright in any relevant works (or part thereof) or grant suitable declaratory relief. 3107 It is convenient at this point to say something about the JV Vehicle and information relating to it. Directed asserts that it is now the owner of copyright in relevant forms of the CAN Bus data and vehicle parameters. It says that in so far as Dylan Hartley asserts authorship in any of the works, Directed is the copyright owner pursuant to a deed of assignment entered into in October 2019, together with all rights to sue for past infringements. 3108 Now I accept the validity of this assignment and that it is operative in accordance with its terms even though it was entered into after these proceedings commenced. Nevertheless, neither the JV Vehicle nor Directed had copyright in the relevant material in any event. 3109 If there has been an assignment of the copyright simpliciter after the proceedings have been commenced, then that may not be sufficient. But if the assignment which post-dated commencement is expressed to operate retrospectively and also makes clear that it operates as an assignment of rights to sue for infringement, including past or present infringement, then there is no difficulty for Directed in the fact that the assignment post-dated commencement (Global Brand Marketing Inc v Cube Footwear Pty Ltd (2005) 65 IPR 44 at [59] per Goldberg J). But if the latter type of assignment is in play, then Dixon Projects Pty Ltd v Masterton Homes Pty Ltd (1996) 36 IPR 136 is distinguishable for the reasons given by Goldberg J in Global Brand Marketing. 3110 Let me deal with another matter. The evidence given by Tselepis during cross-examination indicates that to satisfy himself that he was the "author" of a document, he simply checked the file properties of that document without giving any consideration as to whether he or others at Directed or a third party was or were responsible for the creation of the document. The following evidence was given: RYAN SC: Right. So how do you possibly say, at paragraph 103(b) of your affidavit, "This is a version of the document created by me in February and March 2014"? A: Because I looked at the file properties of that document and the author was me. Q: Well, whatever the file properties said, Mr Tselepis, that document originated from Mr Humphries of Isuzu and it went to Dylan Hartley, as we've seen. You may have accessed it at some point, but you didn't create it, did you? A: The properties in that document said that I created it, so that's why I wrote that in my affidavit. 3111 I then became interested in the topic: HIS HONOUR: Well, can you explain to me why you're confident that, because the notation AT-PC-Home appears that that meant that the document was created by you, as distinct from just appeared on your home computer? TSELEPIS: Correct, yes, because my PC at home is always named my initials and PC-Home. So AT_PC at home, so if the document properties had that in there it means it was created on my computer at home. … Q: As distinct from just appears on your home computer and given that distinction? A: Yes. RYAN SC: Mr Tselepis, perhaps we can just take a step back. AT-PC-Home, wouldn't that appear if you had opened the document at your - - -? TSELEPIS: Yes, possibly. 3112 Now Directed says that in the event that I find that it did not own the whole of the copyright in the works, it was at least a joint owner of the copyright in the works in question. So it says that it is entitled to sue in its own right with respect to the unauthorised infringement of copyright in the works and entitled to bring such claims for infringement based on its joint ownership. But in my view this assertion fails concerning the CAN Bus data and vehicle parameters. 3113 Let me deal with one other matter that it is convenient to dispose of at this point. 3114 The Gridtraq parties assert that Directed's case should fail as it did not attempt to review any source code embedded in the Gridtraq parties' telematics units to determine whether they contained any of the alleged confidential information. 3115 But there was a refusal by the Gridtraq parties to permit any testing of the CPU beyond its supervised inspection by Girgis and K&L Gates lawyers only when connected to the RA7000 AV unit. And this inspection was required to be conducted under the limited conditions set out in my earlier orders which did not permit Girgis or any employee or director of Directed to undertake any review of any source code. 3116 Further, the Gridtraq parties did not discover the source code embedded in their telematics units or lead any evidence about the creation of the source code embedded in their units. 3117 Further, and in any event, I am unclear whether evidence of such use might have been established by reviewing the source code embedded in the Gridtraq parties' telematics units to determine whether they contained any of the relevant confidential information. 3118 In summary, I reject the Gridtraq parties' argument. Directed's case may fail on some aspects, but not for this reason advanced by the Gridtraq parties. 3119 Finally, the Hanhwa parties say that for copyright protection to exist, there must be a sufficient effort of a literary nature directed at the form or expression of the work. The form or expression of the work must be the result of particular mental effort or exertion by the author/s and cannot be essentially dictated by the nature of the information. Now the Hanhwa parties say that in the case of certain documents said to have been created by Directed, the evidence of actual contribution to the documents reveals that it is akin to the recording of information only and otherwise too slight to attract copyright protection. 3120 Now there is some force to this contention in relation to some of the material, but in my view it is not a good answer to Directed's claims concerning for example the PPAP materials. Directed Specification 3121 Let me say something about the Directed Specification. Vardon was the author of the work and software of this kind is a literary work. As Directed has pointed out, Vardon's and Tselepis' evidence as to the purpose and importance of the Directed Specification being to enable an AV unit and telematics unit to communicate, the fact that it took 12 months to develop and the inability to reverse engineer it, reflects Vardon's intellectual effort. 3122 I should also note that on 3 June 2019, Vardon assigned any residual intellectual and industrial property rights in the Directed Specification and in any revisions or versions he created to Directed, as well as any causes of action and rights to sue for damages for past or present infringements of that copyright. Now in my view it was valid and operative in accordance with its terms, even though it was entered into after the commencement of these proceedings. 3123 Now the evidence as to use (or non-use) has been set out elsewhere. CAN Bus data and vehicle parameters 3124 I agree with the Gridtraq parties that there is no subsistence and ownership of copyright in the alleged infringing works comprising the CAN Bus data and vehicle parameters. 3125 First, as to the document "Isuzu Gridtraq Programmable Parameters" created on 3 February 2014 by Tselepis, Dylan Hartley received the information contained in that document in March 2014 from Humphries of IAL. To the extent that Tselepis was the author of that document or part, he did not identify the extent of his relevant contribution. 3126 Second, Directed refers to the FMS standard, which is the subject of allegations of infringement of copyright. But Directed did not allege that it was the author of that document, nor did it identify its author. 3127 Third, it is said that a document titled "hino CANBUS info 20130717" was created by unnamed Directed employees on an unspecified date. But Dylan Hartley received the information contained in that document in June 2014 from Gibson of Hino. To the extent it is suggested that employees of Directed authored that document or part, Directed did not identify who those authors were or the extent of their relevant contribution. 3128 Fourth, Directed originally held out that documents comprising CAN Bus data and vehicle parameters were its own creations and not commercially available unless provided by Directed. It was said that they were the product of Directed's own "CAN sniffing" efforts, which was described as a labour-intensive process involving time and effort or information compiled by Directed. But these assertions were suspect. PPAP Documents and Line Drawings 3129 Let me say something about the PPAP and its contents. Directed's PPAP is a compilation. The PPAP submitted and approved by IAL for the DIR6200 was compiled by Mills when he was a Directed employee. He also created a significant number of its components. Directed has identified those authors who were Directed employees. 3130 Further, in the case of works created in whole or part by Hanhwa Korea employees such as the MFL, Directed claims entitlement to equitable ownership, and a declaration to that effect, perfected by an assignment of legal ownership. I am inclined to hear further from the parties as to this. 3131 Now copyright is claimed in the whole of the DIR6200 PPAP documents with respect to literary and artistic works within it, save with respect to the parts submission warrant, confirmations regarding master sample, compound changeover request form and bill of materials which it appears were created by Mills during his employment at TechAudio. Other documents in it were created by Hanhwa Korea for Directed, which claims to be the equitable owner of copyright. 3132 In my view there is some force to Directed's claims of subsistence and ownership in favour of Directed of the whole or a substantial part of the pleaded drawings or the documents in the DIR6200 PPAP where the author is recorded as Mills, Summers, Palone, Dane, Slade or other Directed employees, other than the TechAudio documents. Moreover, there appears to have been a referencing and reproduction of the whole or a substantial part of the pleaded drawings or the documents in the DIR6200 PPAP. 3133 First, Hanhwa Korea copied extensively from Directed's DIR6200 PPAP to create a PPAP for the HAU8000 which it submitted to IAL. Mills was extensively involved in the preparation of the PPAP for the HAU8000. 3134 Second, the MFL for the DIR8000 was reproduced in the creation of the MFL for the HAU8000 and the LM18I. 3135 Third, photographs taken by Summers during the course of his employment by Directed were reproduced in the HAU8000 PPAP documents. 3136 Fourth, Lee proposed to submit the PPAP on 25 September 2017 but he needed Isuzu part numbers. Meneses asked Directed staff for and was provided a copy for each item as per the Directed PPAP list. 3137 Let me say something about the line drawings for product parts. Slade has been employed by Directed since May 2017. When he started, Directed did not have line drawings for Directed's existing AV units and telematics units and accessories supplied to some customers. At the request of Meneses, Slade created these line drawings between May and July 2017. Substantial reproductions were seized from the Brooklyn premises pursuant to my search order or produced by IAL pursuant to subpoena. 3138 As to the line drawings created by the Hanhwa parties, Meneses and Mills in the period July to September 2017, the following may be noted. 3139 First, many of the line drawings particularised by Directed were an unauthorised reproduction of drawings created by employees of Directed during the course of their employment with Directed. These drawings were reproduced by the Hanhwa parties and Mills in the period July to September 2017. 3140 Second, those line drawings created by employees of Directed in or before May 2017 were stored in the K drive, which was downloaded by Summers at the direction of Meneses in around May 2017, and subsequently loaded on to the Hanhwa Aus computer systems by Mills. 3141 Third, the presence of the Directed drawings in the possession of Hanhwa Aus and on its computers is evidence of unlawful reproduction by Mills and Meneses, which was authorised by Hanhwa Aus or knowingly encouraged by Hanhwa Aus. 3142 Fourth, Mills in the period July to September 2017 made modifications to these Directed drawings as an employee of Hanhwa Aus, which was not authorised by Directed. 3143 Now as to the line drawings for parts for IAL Mercedes, Hino and Fuso, only those for Mercedes were independently created by Directed. In the case of the remaining line drawings, and notwithstanding that the documents themselves show that they were created by Palone, apparently as an employee of Directed, the Hanhwa parties say that they were created by Hanhwa Korea and then simply rebadged or Directedised, by the insertion of the Directed logo. But I do not accept this simplistic characterisation. 3144 Further, the Hanhwa parties say that to the extent to which Mills obtained such documents, it was not at Lee's direction or approval or with his knowledge. And Hanhwa Aus had no use for them. They all related to parts for units that were the subject of past and on-going supply from Hanhwa Korea to Directed and in respect of units that Hanhwa Aus did not propose to and did not supply to IAL, Mercedes, Fuso and Hino. 3145 But I am satisfied as to the various infringements of copyright by Meneses, Mills and the Hanhwa parties alleged by Directed. Damages 3146 Finally, in respect of its claim for damages, Directed also seeks additional damages pursuant to s 115(4) based on the flagrancy of the conduct. No election between an account of profits or damages has yet been made. I will deal with this claim at a later stage of the proceedings. 3147 Let me now address some other matters. Relevant knowledge making respondents liable as accessories 3148 At all times Lee and the Hanhwa parties had knowledge that Mills and Meneses were employees of Directed. So, they knew that they each owed s 182 and s 183 duties. And having regard to Meneses' position, knew that he owed fiduciary obligations to Directed. And having regard to the level of responsibility that Mills exhibited, knew that he too owed fiduciary obligations. 3149 Further, even if it is accepted that Meneses was a shareholder/director of Directed, similar duties apply. Lee displayed a full understanding of the candid nature of dealings that should be had between co-owners of a business; he accepted that the secret commission payments should have been disclosed; he accepted that he did not know whether they had been disclosed; and he said that Meneses never told him that they had been disclosed. 3150 Further from about early February 2017 Lee had express knowledge of the terms of Directed's standard employment agreement, which he used to create Mills' employment agreement with Hanhwa Aus. 3151 In my view the evidence makes clear that Meneses was a joint participant with Lee in all of the conduct the subject of this proceeding from about late 2015 onwards. Lee's knowledge that Meneses was an employee/director of Directed throughout, fixes him, and through him Hanhwa Korea and Hanhwa Aus, with accessorial liability. 3152 Lee's and Meneses' joint participation in the relevant diversion activities at the heart of this proceeding are set out in detail elsewhere. 3153 Further, Meneses and Lee were associated with each other in the Hanhwa Aus business. Meneses was involved in its incorporation, purchasing Isuzu truck for its use, leasing premises in Brooklyn, obtaining and providing downloads of Directed's information stored on its servers to Hanhwa Aus to be stored on its servers or in cloud storage for its use, soliciting its employees to leave Directed and join Hanhwa Aus, lying to employees to encourage them to leave Directed and join Hanhwa Aus, utilising Hanhwa email addresses, harbouring opportunities such as D-MAX and diverting the SuperDAVE opportunity. 3154 Meneses' conduct whilst still employed with Directed was in breach of his various fiduciary, statutory and employment obligations. Lee's conduct together with Meneses in the business conducted by Hanhwa Aus, together with his knowledge of Meneses' wrongdoing, makes him an accessory. And through him Hanhwa Korea and Hanhwa Aus are accessories too. 3155 As to the attribution to Hanhwa Korea and Leemen Korea of Lee's knowledge and conduct, this can be attributed to Hanhwa Korea, Leemen Korea and Hanhwa Aus. He occupied a position of primary responsibility for Hanhwa Korea from 2013. Since 2015 he has been styled managing director of Hanhwa Korea. He was the managing director of Hanhwa Aus since its incorporation. I agree with Directed that he was the directing mind and will of the Hanhwa Korea parties. 3156 Let me say something more concerning Meneses and Mills and Lee's knowing participation in the breach of their contractual, fiduciary and statutory duties. 3157 In my view Lee's knowledge can be attributed to each of Hanhwa Korea, Leemen Korea and Hanhwa Aus. 3158 Now it was said by the Hanhwa parties that it was not put to Lee that he had knowledge of the terms of Mills' and Meneses' employment contracts at any time prior to 8 February 2017. Nor was it put to him that he had knowledge of the statutory duties or that he knew of the underlying facts which gave rise to breaches of those obligations. 3159 Further, it is said that insofar as the allegations relate to Meneses' breaches of his employment agreements or contravention of his statutory duties, there is little evidence that Lee brought it about or was sufficiently involved or had relevant knowledge such to give rise to ancillary liability on his part. 3160 Further, it is said that to be liable on an ancillary basis for a breach of fiduciary duty, the accessory must have participated in a significant way with knowledge of the fiduciary's dishonest and fraudulent design. 3161 But in my view Directed has established the requisite knowledge and participation by the Hanhwa parties. 3162 Lee's knowledge can be attributed to Hanhwa Aus. Further, Lee was the directing mind and will of Hanhwa Korea and Leemen Korea, such that his knowledge can be attributed to them. 3163 Lee worked in the Hanhwa business since 2005. He has been the managing director of Hanhwa Korea since 2015 and managing director of Hanhwa Aus since its incorporation. He is a shareholder of Hanhwa Korea. 3164 Further, Lee was the person at Hanhwa who had overall responsibility for the relationship with Directed. He was copied in to almost every email. He was the decision maker within Hanhwa Korea and Leemen Korea in relation to all matters including the development of products, pricing, supply chains and credit control. 3165 Now the Hanhwa parties say that Lee had no knowledge of Meneses' and Mills' employment agreements before 8 February 2017. But from that date on at least, Lee can be taken to have had express knowledge of the terms of Meneses' and Mills' employment agreements. Further, prior to that date he can be taken to have had notice of which I would term standard employment terms in relation to employees being required to protect and not misuse their employer's information. 3166 Now the Hanhwa parties say that it was not put to Lee that he knew of the existence of the statutory duties. But it was not necessary to put to Lee that he had knowledge of those basic legal obligations, particularly where Lee in fact considered Meneses to be a director of Directed, and Mills an employee. 3167 Now the Hanhwa parties have cast Mills' conduct as involving innocuous and preparatory steps to assist Hanhwa Aus' establishment. But the evidence demonstrates otherwise. 3168 The Hanhwa parties have further asserted that it has not been shown that Lee induced or was sufficiently involved with Meneses' commission of any of the alleged breaches or had knowledge to give rise to liability as an accessory. But in my view the evidence is clear that Lee was intimately involved in Meneses' dishonest and deceptive misconduct. Likewise Lee knew of and encouraged similar conduct by Mills. Meneses and Mills working for Hanhwa whilst employed by Directed and Meneses' conflicts of interest and interest in Hanhwa Aus 3169 As I have said earlier, each of Meneses and Mills breached their statutory, employment and fiduciary obligations owed to Directed. And the Hanhwa parties were knowing participants or inducers of both Meneses' and Mills' breaches. 3170 As I have said, Meneses and Mills were intimately involved in the establishment of Hanhwa Aus' business at the Brooklyn premises whilst still employed at Directed. 3171 Further, as I have said, from mid-2016 Lee communicated with Mills and Meneses at their Hanhwa/Leemen email addresses and their Directed email addresses. This was the method used to work out which "hat" they were wearing. Meneses and Mills worked on tracking the cost and expenditure in relation to the setup of Hanhwa Aus. 3172 From late 2015, Meneses and Mils engaged in a whole range of tasks to assist in the establishment of Hanwa Aus business and to divert Directed's business to it. As I have said, this conduct was a breach of their contractual obligations, fiduciary obligations and statutory obligations. 3173 Meneses and Mills were accessories to the dishonest breaches of each other, and induced each other's contractual breaches. Lee, Hanhwa Korea, Leemen Korea and Hanhwa Aus all participated in and benefited from the dishonest breaches of obligation by Meneses and Mills and induced their breaches of contract. 3174 Now the Hanhwa parties assert that the claims must fail because Lee was not aware of the employment agreements nor of the fiduciary and statutory obligations. But it is not correct that Lee did not know of the Meneses' employment agreement. Further, I reject the proposition that there is some distinction to be drawn between the period prior to August 2017, when Hanhwa asserts that Lee thought Meneses had resigned from Directed, and the period to 7 November 2017. Lee was well aware that Meneses was employed by Directed well beyond the start of August 2017. 3175 Further, clearly the Hanhwa parties were aware of all of the dual employment conduct. 3176 Now the Hanhwa parties have relied on various matters to deflect liability for involvement in Meneses' and Mills' misconduct. 3177 First, they submit that in respect of conduct during the period August to October 2017, Lee believed that Meneses had resigned from and ceased working for Directed. But email traffic between Meneses and Lee made clear that Meneses was still clearly performing functions as Directed's general manager in the period August to October 2017. 3178 Second, the Hanhwa parties assert that whilst Lee knew of some of the conduct with the exception of the K drive conduct, he did not know of the employment contracts. But as I have said, this is unsustainable. 3179 Third, the Hanhwa parties assert that Lee did not instigate or procure any dishonest breaches by Meneses. In my view the evidence would suggest otherwise. 3180 It is plain that Lee was an active participant in almost all aspects of Meneses' misconduct. 3181 Further, the relationship between Meneses and Directed was, to the knowledge of Lee, predicated on the secret commissions agreements. Further, Meneses expressly told him of the need for secrecy. 3182 Further, as I have said, Lee and Meneses worked together on diverting opportunities that Meneses should have been exploiting for the benefit of Directed. Moreover, the purpose of establishing Hanhwa Aus was to do just that. And this was all done secretly. 3183 Further, as to Mills' breaches, he was also an active participant, albeit Meneses' right hand man. Further, Lee had many communications with him and was aware in my view of his dishonest breaches. Solicitation of Directed employees 3184 In starting up Hanhwa Aus, Meneses and Lee, together attempted to solicit eight of Directed's employees to leave Directed's employ and join Hanhwa Aus. They successfully recruited Mills and Palone, although Palone did not work directly for Hanhwa Aus. Meneses was the primary contact with the other employees. 3185 Lee actively encouraged him to do so and together they prepared relevant documents, being letters of offer, employment agreements etc. In doing so, Meneses, at Lee's request obtained salary information for all of Directed's employees and passed it on to Lee. They used this information in setting salaries to be offered. Meneses also lied to these solicited employees about the state of Directed's business to encourage them to leave. 3186 Further, Lee was involved with the Hanhwa Aus employment agreements put to the proposed employees. The Hanhwa Aus version was a copy of Directed's standard employment agreement. So, by early February 2017, being the date he created the Mills employment agreement by modifying the standard Directed employment provided to him by Meneses, Lee had express knowledge of the detailed terms of Directed's standard employment agreement. 3187 By December 2016, Meneses had obtained all salary package information for all Directed employees. On 31 January 2017 he sent out letters of offer to new staff by acquiring Hanhwa company letterhead from Lee. 3188 Further, Meneses made misleading and false statements to Directed employees about Directed, its business and its directors in order to entice them to leave Directed to work for Hanhwa Aus. He told them, variously: "Directed is going broke", "Directed isn't holding enough stock", "The directors are trying to sell the business", "Steve and Anthony are retiring and getting out of the OE business. This is confidential and will be announced to staff shortly", "Steve and Anthony want to sell or close the OEM business within 3 years", "I am not going to go after any of the existing business of Directed. I am only going to target potential new business from Directed's customers", and "There is no long-term future for you if you keep working for Directed". 3189 Shortly before 27 October 2017 Summers and Dane disclosed to Siolis such matters when Siolis presented to staff Directed's plans for a new building that it was to erect on land near IAL's offices. 3190 Further, Hanhwa's December 2016 business plan records that at this date, Hanhwa already regarded Meneses, Mills, Summers, Dane and Palone as employees in its Australian office, together with Shin and Oh. 3191 I agree with Directed that Meneses' conduct was surreptitious and dishonest. He arranged for communications with the proposed departing employees to be effected via their personal email addresses in order that Directed not discover the conduct. Lee was aware that this was so and communicated with them at these addresses, despite having their work emails available to him through his bona fide communications with Directed. 3192 Meneses' conduct was a primary breach of his fiduciary obligations, his statutory obligations and of his employment agreement. Lee and Hanhwa Aus are liable as accessories to that conduct and for inducing Meneses to breach his employment agreement. 3193 Now the Hanhwa parties say that Lee had no knowledge that Meneses was breaching any of his obligations in soliciting any of Directed's employees. Further, they say that any conduct after August 2017 was done at a time Lee thought that Meneses had already resigned from Directed. But the documentary evidence shows that Lee knew of the terms of Directed's standard employment agreement from February 2017. He sought from Meneses details of Directed's salaries paid to its employees. Meneses then obtained these from Floudas, and Lee and Meneses both discussed salary proposals to be made. Then they co-signed letters of offer and provided employment agreements. Even during the period that Lee knew Meneses was still employed by Directed he participated with Meneses in the solicitation of Directed's employees. Further, Lee knew that Meneses was still an employee of Directed well after August 2017. 3194 Further, the Hanhwa parties also say that no loss was suffered by Directed in any event. But the conduct must be seen as part of the ongoing conduct by Lee and Meneses to divert Directed's business. The solicitation of these employees who had knowledge of and links with the OEM customers must have been thought to be desirable for Hanhwa Aus. The attempt to solicit them was a breach of relevant obligations. And to the extent that Mills and Palone were successfully recruited, albeit the latter through another entity, damage may have been suffered. In any event, this is only a trial on liability. Meneses' and Mills' breaches of restraint clauses 3195 As I have already said, each of the Meneses employment agreement and the Mills employment agreement contained a post-employment restraint clause. The restraint was for 6 months and within the State of Victoria. It prevented them from being directly or indirectly being involved with a competitor business, from soliciting employees, from divulging Directed's confidential information, and from interfering to the detriment of Directed with the relationship between it and any of its clients, customers, employees or suppliers. Meneses and Mills were also restrained from attempting to entice away or enticing away any of Directed's customers with whom Meneses and Mills had direct dealings in the previous 12 months. 3196 I have already said that the restraint was reasonable. Further, from at least February 2017, Lee and the Hanhwa parties knew about the restraint. So much is apparent from Lee's participation in the recruitment of Directed employees, and his knowledge of the terms of Directed's standard employment agreements. 3197 Meneses and Mills breached this restraint in the manner that I have previously indicated. 3198 Now the Hanhwa parties have said that the restraints are void. But I have rejected this spurious argument. 3199 Further, contrary to the arguments floated by the Hanhwa parties, there is no doubt that the acts or omissions of Meneses and Mills occurred in the restraint area. And there is evidence that both Meneses and Mills breached the customer solicitation clause. 3200 Now the Hanhwa parties say that their liability depends on Directed establishing knowledge by Lee of these provisions in the Meneses and Mills employment agreements and an intent to bring about breach. And they say that there is no sufficient evidence that Lee knew about the provisions themselves. Further, there is no probative evidence of intent. I disagree on both aspects. Mills and Meneses breached their restraints as I have detailed elsewhere and Lee and the other Hanhwa parties committed the tort of inducing such breaches. Misrepresentations to IAL 3201 I have little doubt that on 30 June 2017 Lee and Meneses represented to IAL that Meneses had resigned from Directed, was a director of Hanhwa Aus, and was lawfully able to be involved in the supply by Hanhwa Aus to IAL of the HAU8000 in competition with Directed's supply of the DAVE products. 3202 The representations were false, misleading and deceptive in that Meneses had not resigned from Directed, he was not a director of Hanhwa Aus, and he was not lawfully able to be involved in that supply. 3203 By that conduct Meneses, Lee and Hanhwa Aus contravened s 18 of the ACL. 3204 Now the conduct of telling IAL that Meneses "Starts 1 August" with Hanhwa Aus makes good the first and third representations. 3205 Now Lee says that Meneses only joined the meeting on 30 June 2017 at the end of Lee's presentation. Meneses also admits that he had a conversation with Shanks, Taylor and Lee, "after they met with Lee in his absence". But the minutes taken by IAL do not reflect any such distinction. They record Meneses' presence at the meeting and they similarly record the representation(s) having been made. Further, Meneses has given no evidence to support his non-attendance at the meeting when the representation(s) was made and accordingly a Jones v Dunkel inference can be drawn. Lee's evidence does not accord with the minutes. 3206 I reject Lee's evidence that Meneses was not present until the end of the meeting. The minutes record him as being present without any temporal limitation. He was the person with the strong connections at IAL and the person who engaged in most direct negotiations with IAL both for Directed since 2009 and for Hanhwa Aus before and after this meeting. 3207 Further, whether the "starts 1 August" statement was made by Meneses or Lee is immaterial. They were both present. Whichever of them did not make the statement was a person involved, as was Hanhwa Aus. Both are thus accessorily liable. Further, Lee's conduct can be attributed to Hanhwa Korea and Leemen Korea. 3208 Further, the conduct of Meneses and Lee in signing the supply agreement between Hanhwa Aus and IAL on 6 October 2017 which stated that Meneses was a "director/company secretary" also makes good the representations. 3209 Meneses had not resigned from his employment, was not a director/secretary of Hanhwa Aus and was not lawfully able to be involved in the supply of the HAU8000 to IAL. He had not yet resigned from Directed, and he was still employed by Directed. The falsity is also highlighted by Meneses having emailed Siolis, Tselepis and Floudas soon after on 26 July 2017, providing them with a medical certificate for leave from work from 20 July 2017 to 8 September 2017. 3210 Further, in my view reliance on the representations by IAL is apparent. The fact that "several key staff from Directed OE have moved employment to Hanhwa Australia" was one of the matters referred to by the PPC of IAL in its minutes of 19 July 2017 when formally approving the supply of the HAU8000 from Hanwa Aus. 3211 Section 18(1) of the ACL relevantly provides: "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". In order to attract the operation of s 18, the representation must be made "in trade or commerce". In this case, the conduct of Hanhwa Aus, Lee and Meneses during the course of which the alleged representations were made, was in trade or commerce. 3212 Further, there is no requirement to prove a subjective intention to mislead or deceive. Moreover, in determining whether particular conduct was, or is, likely to mislead or deceive, it is unnecessary to prove that anyone was actually misled or deceived. 3213 Further, once a contravention of s 18 is established, a claim for damages under s 236 arises against the party engaging in the conduct, and any person "involved" in the contravention. A claim under s 236 arises where it can be shown that the loss and damage is suffered "because of the conduct" constituting the contravention. The words "because of" connote a sufficient causal connection between the contravention and the loss and damage. 3214 The representations were misleading or deceptive or likely to mislead or deceive. 3215 And by participating in the conduct alleged, Hanhwa Korea and Leemen Korea aided, abetted, counselled or procured the contravention and were thereby persons involved in the said contraventions. 3216 Directed says that it has suffered loss and damage as a consequence, and that but for the representations, IAL would not have entered into the supply agreement with Hanhwa Aus and would have entered into a 5 year supply agreement with Directed to purchase the SuperDAVE and its accessories and continued to purchase the telematics units and telematics services. I have discussed these matters elsewhere, but I do not need to finally decide such matters at this stage. Other matters 3217 Let me at this point deal with a number of loose ends concerning the claims against the Hanhwa parties. 3218 First, although I have confined myself from time to time to discussing Lee and Hanhwa Aus, I have no doubt that Lee's egregious conduct and state of mind should also be attributed to Hanhwa Korea and Leemen Korea. He also clearly acted on their behalf or with their authority. Moreover, Hanhwa Korea was involved in the strategy of setting up Hanhwa Aus and implementing the strategy that I have previously discussed. 3219 Second, the Hanhwa parties are not only liable under the second limb of Barnes v Addy concerning the conduct of Meneses and Mills, but they are also liable as accessories to Meneses' and Mills' breaches of statutory duties. 3220 Third, in my view the wrongful conduct of the Hanhwa parties concerning knowing assistance, accessorial liability and misuse of Directed's confidential information which I have discussed provided them with a spring-board advantage concerning the development and supply of the LM units even if it be accepted that such units have their differences with the HAU8000. 3221 Let me now turn to Directed's case against the Gridtraq parties. The case against the Gridtraq parties 3222 I have already touched on aspects of this earlier, but let me repeat some elements. 3223 Now the Gridtraq parties were separate entities with different shareholders and business operations, although the companies worked together. Since 2016, Gridtraq has been engaged in the business of developing, designing, marketing and selling telematics units, and supplying software for use in connection with telematics units. Since 2011, Webhouse has been engaged in the business of developing, supplying and supporting software for use in connection with telematics units outside Australia, and since 2016 has been engaged in such business activities also within Australia. Since 2012, Quantam has been engaged in the business of designing and manufacturing hardware and firmware for telematics units and automotive-related products. 3224 It is important to bear these distinctions in mind which seem to have been glossed over by Directed. 3225 Let me say something about the evidence called by the Gridtraq parties. 3226 As I have already indicated, the Gridtraq parties led evidence inter-alia from Allen Hartley, Davidson, Dylan Hartley and Thibaud, all of whom I have previously mentioned. Let me recap some aspects. 3227 Allen Hartley is a director of each of the Gridtraq parties and is originally from South Africa. He has been involved in vehicle telematics since its early conception in around 1990. He moved to Australia in late 2009. Prior to that time, he co-owned with Davidson a vehicle tracking and fleet management company in South Africa, being Bandit SA. After he moved to Australia, in February 2010 he established a company with Davidson, Siolis and Tselepis to develop, sell and supply telematics units and provide telematics services to retail, commercial and OEM customers in Australia and New Zealand. That company was named Gridtraq Pty Ltd, which I have referred to from time to time as the JV Vehicle. As I have already indicated, where I have referred to Gridtraq alone, it is to Gridtraq Australia Pty Ltd. 3228 Davidson is also a director of each of the Gridtraq parties and has had over 25 years' experience in the telematics and fleet management services industry. From 1990 until 2009, Davidson was a founding director and the managing director of Bandit SA. As I have said, he was also one of the founding shareholders of the JV Vehicle. 3229 Dylan Hartley is the Operations Manager at Gridtraq, having worked in that role since March 2017. As Operations Manager, he was responsible for the operational running of Gridtraq, both in Australia and internationally. Dylan Hartley did not have an official role with either Webhouse or Quantam, although from time to time he assisted with projects or tasks relating to those companies. Dylan Hartley moved to Australia in September 2009. From around that time until March 2016, he was the Business Development Manager of the JV Vehicle. 3230 I should say here, if it is not already apparent, that I have largely accepted the evidence of the Hartleys and Davidson, the consequence of which is that the central themes of Directed's case against the Gridtraq parties must fail. In particular, in my view the contents of Dylan Hartley's affidavit sworn on 1 October 2019 should be accepted save for what I will say later concerning confidential information of the JV Vehicle. His cross-examination in my view did not successfully impugn this evidence. 3231 Now Thibaud is the Engineering Director at Quantam. He was one of the founding shareholders of Quantam, and has worked in his current role since its inception. Between 1989 and 2009, Thibaud worked at a South African firm called PFK Electronics, initially as Product Development Manager and subsequently as Product Director. He had significant experience in relation to the design and development of electronics products, including vehicle security and vehicle convenience products, OEM security products and tracking/telematics, security and CAN Bus systems. He was not cross-examined by Directed. 3232 Thibaud was central to the development of products at Quantam in terms of new products for vehicle manufacturers. This process required collaboration with the customer's engineering team involving time and effort, and many meetings with the customer to understand their requirements. Such a process reflected the manner in which the JV Vehicle developed telematics solutions for OEMs in the period between 2010 and 2016. 3233 Thibaud's evidence was that other than the safety screen, the Hanhwa entities had not provided any technical input into the design or development of any of Quantam's products, including the Quantam telematics unit (CPU). 3234 Now as the Gridtraq parties pointed out, Thibaud's unchallenged evidence also included the following aspects. First, Quantam began developing a telematics unit known as the CPU in around June 2014. The product was not intended only for the Australian market, but also for global markets. Second, Thibaud was responsible for the hardware design of the CPU, which was designed to connect to an external product via the RS232. It was not designed to and could not connect to external products via the RS485. Indeed, Quantam had never designed, developed, manufactured or sold a telematics unit incorporating an RS485 chip. Third, between June 2014 and 30 November 2017, only 55 prototype units of the CPU were built for testing and debugging. In December 2017, Quantam had 200 CPUs manufactured, 194 of which were sent to Gridtraq. A further 300 unprogrammed and untested CPUs were sent to Gridtraq in August 2018. Fourth, Quantam did not supply any units including the CPU directly to any end customer in Australia. 3235 Let me deal with some other evidence led by the Gridtraq parties. Ms Tagliabue and Ms Garner, who were solicitors employed by Moray & Agnew, gave evidence addressing a misapprehension on Directed's part that the Gridtraq parties had edited a version of the Directed Specification by removing Directed's logo from the document and changing the font. Their unchallenged evidence confirmed that the purported edits to the Directed Specification arose in the course of that document being uploaded to the Gridtraq parties' discovery platform, and not as a result of any culpable conduct on the part of the Gridtraq parties. 3236 Now it is convenient at this point to also say something concerning the evidence of Girgis as it related to Directed's case against the Gridtraq parties. 3237 The Gridtraq parties have asserted that the forensic value of Girgis' evidence in so far as it concerned the misuse of confidential information claims made specifically against the Gridtraq parties was limited by Directed's instructions. Further, they say that much of his evidence amounted to no more than speculation. I tend to agree with that characterisation particularly in relation to the case against the Gridtraq parties. Girgis was on firmer ground concerning his evidence against the Hanhwa parties, as I have already discussed. 3238 Now Directed says that Girgis' expertise allowed him to express an opinion about the value and utility of relevant documents in evidence and, in light of the conduct of the respondents as extrapolated from other documents, to express an opinion about whether the particular documents were used. But in my view the Gridtraq parties' criticisms of Girgis' evidence on this aspect have some force. The probative value of his speculation on this aspect was questionable to say the least. Let me deal with another aspect. 3239 The Gridtraq parties claimed that Girgis failed to undertake any proper investigations to identify any actual use of any CAN Bus data or vehicle parameters. But Directed says that this would have required inspection of the physical units. Further, Girgis' inspection of the CPU was limited by the terms of the orders for inspection contended for by the Gridtraq parties which prevented such inspection. No source code for these units was discovered. And no evidence was given to establish that this inspection would have been productive. I am inclined to agree with Directed's position on these aspects. But none of this detracts from the Gridtraq parties' points about the speculative nature of some of Girgis' evidence. 3240 But none of this is to take away from the fact that I have accepted Girgis' opinion as to the following matters. First, the DIR8000 and the HAU8000 are substantially the same. Second, the LM18I is also similar to and derived from the DIR8000 and the HAU8000. Third, the other LM units were similar to the LM18I. Fourth, some of the accessories supplied or proposed to be supplied with the HAU8000 and the LM18I were the same as the accessories either supplied with the DIR6200 or those proposed to be supplied with the DIR8000. Directed's main complaints 3241 Directed says that the Gridtraq parties and Directed were in a joint venture, yet from early 2015 the Gridtraq parties pursued new ventures with the Hanhwa parties. But in doing so, it is said that the Gridtraq parties knew that the Hanhwa parties continued to work in close collaboration with Directed on projects targeting customers such as IAL. 3242 It is said that the Gridtraq parties also knew that Meneses was a longstanding employee of Directed and therefore owed duties to Directed. It is said that the Gridtraq parties knew or ought to have known that the Hanhwa parties and Meneses should not have been working with them on projects in competition with Directed. 3243 Further, it is said that the Gridtraq parties used confidential information and copyright works of Directed in doing so. 3244 Further, it is said that the Gridtraq parties aided, abetted, counselled or procured or were directly or indirectly knowingly concerned in or a party to alleged contraventions by Meneses and Mills of their contractual, fiduciary and statutory duties. It is said that they were thereby persons involved in Meneses' and Mills' alleged contraventions for the purposes of ss 79, 182 and 183 of the Corporations Act in that they had knowledge of the essential facts constituting the contraventions. It is said that they participated in and assisted Meneses and Mills in their breaches of their fiduciary obligations with knowledge of the conduct which constituted those breaches of fiduciary duty in circumstances which would have indicated the dishonest and fraudulent nature of their conduct to an honest and reasonable person. And it is said that with the intention and in the knowledge that it would cause a breach of contract, the Gridtraq parties induced Meneses and Mills to engage in various breaches of their employment agreements. 3245 Further, it is said that with the intention and in the knowledge that it would cause a breach of contract, they induced the relevant Hanhwa parties to breach the Hanhwa Enterprise Agreement and/or the Hanhwa Korea Agreement. 3246 Further, Directed says that the Gridtraq parties' knowledge that Meneses' conflict of interest was dishonest and fraudulent is apparent from their knowledge of Meneses' presence at the Brooklyn premises, their understanding of his role at Directed and of his simultaneous role for Hanhwa, the Hanhwa parties' stated aim in June 2016 to supply directly to IAL a new AV unit in competition with Directed and the incongruity of Meneses being Lee's business partner in a joint venture with the Gridtraq parties, which was competitive with Directed, to win the IAL SuperDAVE business, whilst maintaining a continuing employment role at Directed. I should note that Directed cited the evidence of Dane's perceptions concerning Meneses' conflict of interest and the question of co-location, but Dane's opinions hardly carry the day against the Gridtraq parties. 3247 Directed also says that Dylan Hartley's evidence was nonsensical. According to him, when inspecting Brooklyn in July 2016: Mr Meneses told Allen and me that he was going to leave Directed to work with Hanhwa in Australia at the "factory level", which I understood to mean working at the manufacturing level for Hanhwa Korea and not at the distributor level as he had done for Directed. Mr Meneses also said he would still work from the Directed office at the Keilor Premises on two or three days each week, but he would focus on new business and market opportunities by which I understood him to mean supporting the current distribution channel that he had established with Directed and working to establish new sales opportunities for Hanhwa. 3248 Directed says that if one assumes that the evidence of the conversations as related by Allen Hartley and Dylan Hartley did occur, then in the knowledge that Hanhwa intended to supply the SuperDAVE to IAL directly, and thus in competition with Directed's current supply of the DAVE, the impossibility of Meneses continuing to work for Directed at all was laid bare. It is said that the conflict and his participation in a dishonest scheme was clear. 3249 Directed says that possessed of that knowledge, Gridtraq was asked and agreed to assist Hanhwa in that endeavour by demonstrating telematics capability of that AV unit to IAL. It is said that Gridtraq knew that IAL was a substantial and important customer of Directed. From their 6 year relationship in the JV Vehicle, it is said that the Gridtraq parties knew that Meneses was a senior and trusted full-time employee of Directed. It is said that they must have known that he could not also act to assist Hanhwa in any commercial activities that might be in competition with Directed whilst at the same time be employed by Directed. 3250 At best, it is said that the Gridtraq parties shut their eyes to the obvious. 3251 It is also said that the Gridtraq parties' witnesses' evidence about numerous matters should be regarded as deceptive. It is said that they knowingly took and used Directed's property which included the Directed Specification, their use of which they sought to dismiss with a false explanation. It is said that they misused Directed's and the JV Vehicle's CAN information and vehicle parameters, and generally misused confidential information of the Directed / Gridtraq JV for their own purposes. And it is said that they participated in a joint venture which, to their knowledge, involved a misapplication of Directed's assets to its detriment. 3252 Now there are a number of problems concerning Directed's case against the Gridtraq parties. 3253 First, Directed failed to establish that the Gridtraq parties had any knowledge of the terms of Meneses' or Mills' employment agreements. 3254 Second, Directed failed to establish Meneses' or Mills' substantial involvement in any relevant conduct involving the Gridtraq parties. 3255 Third, Directed failed to establish the Gridtraq parties' knowledge of Meneses' and Mills' involvement in any relevant conduct involving the Gridtraq parties. 3256 Fourth, Directed failed to establish the Gridtraq parties' knowledge of the relevant terms of any agreement between Hanhwa Korea and Directed. Now Hanhwa Korea denies, which I have accepted, that any agreement it had with Directed included the exclusivity terms alleged. Indeed, as the Gridtraq parties point out, until June 2019, Directed's case against Hanhwa proceeded on the basis that the agreement between those parties was implied, and only thereafter was it alleged in the alternative that their relationship was based on the earlier Hanhwa Enterprise Agreement. I agree with the Gridtraq parties that it is problematic to suggest that they had knowledge of any relevant exclusivity term, if one existed, in those circumstances. But in any event, there was no such exclusivity term as I have said. 3257 Fifth, although it was alleged that the Gridtraq parties' telematics unit was capable of operating with the HAU8000 or any other AV units manufactured by Hanhwa, the Gridtraq parties' telematics unit was in my view in relevant respects incompatible with Hanhwa's radio units. 3258 Sixth, although Directed has alleged that the connection between the HAU8000 and the RA7000 telematics unit was the precipitating event for Hanhwa Aus winning IAL's business, in my view there is no evidence from IAL to support that contention or other evidence from which it can be properly inferred. Contrastingly, as the Gridtraq parties point out, the documentary evidence produced under subpoena from IAL indicates that it was aware that Hanhwa would not provide telematics capability, and IAL was not interested in engaging Gridtraq to provide telematics services. 3259 At this point it is convenient to elaborate further on Directed's misuse of confidential information case. The information the subject of Directed's misuse of confidential information claims insofar as those claims relate to the Gridtraq parties, concentrated on two principal aspects being, first, the so-called Directed Specification and, second, the CAN Bus data and vehicle parameters, specifically: (a) IAL CAN Bus data and parameters, and IAL data collect proposals; (b) Mercedes data and specifications requests for telematics; (c) Hino CAN Bus data and parameters; and (d) UD vehicle parameters. 3260 Let me make the following points at the outset. 3261 First, although Directed has alleged misuse by the Gridtraq parties of the Directed Specification and CAN Bus data and vehicle parameters, in my view it has failed to establish any actionable use of such material, even if it is assumed that such material was but ought not to have been in their possession. 3262 Second, although Directed's case proceeded on the basis that the Gridtraq parties' possession and use of the Directed Specification would have assisted them and did assist them in establishing a connection between the relevant telematics module and the HAU8000, that case is not made out. 3263 Third, in any event and on the evidence, no such connectivity was established. 3264 Fourth, the inclusion by Directed of a confidentiality notice that a document was for internal use only does not, without more, make its contents confidential. Now Directed alleges that the Gridtraq parties owed it a duty not to use the Directed Specification because it was self-evidently confidential in that its cover page bore the words, "FOR INTERNAL USE". Further, when it was provided to Dylan Hartley under cover of an email originally sent by Tselepis to Lee some years earlier, it contained a statement by Tselepis to the effect that it was confidential and should not be shared with anyone else except Meneses. But none of this carries the day for reasons that will become apparent later. 3265 Fifth, Directed has failed to establish that much of the vehicle parameters or CAN Bus data was confidential to it. Relatedly, Directed failed to substantiate its claims of authorship to much of the CAN Bus data and vehicle parameters. Indeed, I agree with the Gridtraq parties that many of its claims to authorship were either false or misleading, and based merely on a cursory look at the file properties of a document. Further, most of the relevant CAN Bus data and vehicle parameters information was disclosed to Allen Hartley, Davidson and Dylan Hartley by entities other than Directed. 3266 Sixth, Girgis prefaced some of his opinions concerning the misuse of CAN Bus data and vehicle parameters as being subject to a general assumption that the allegedly misused information was not obtained from either the manufacturer or some other source. But I agree with the Gridtraq parties that the evidence demonstrates that this is what occurred in respect of most of the information. Accordingly, to the extent the Gridtraq parties owed any obligation of confidence in relation to the CAN Bus data and vehicle parameters, that obligation might have been owed by the Gridtraq parties to those respective manufacturers, but not Directed. 3267 Let me move to another topic and say something concerning the Directed/Gridtraq JV and the JV Vehicle. 3268 The JV Vehicle Shareholders Agreement was executed in February 2010. Entities associated with each of Siolis, Tselepis, Davidson and Allen Hartley were each to hold 25% of the issued share capital of the JV Vehicle. For present purposes the most relevant clause is clause 15 which embodies various restraints. But I should note that clause 15 is not directed to the position of Dylan Hartley as an employee or former employee. 3269 Now Directed has alleged that Allen Hartley and Davidson were subject to obligations of confidence by virtue of restraints imposed by clauses 15.1 and 15.3 which had post-contractual effect. It was also alleged that Dylan Hartley owed contractual and equitable duties of confidence in relation to his employment by the JV Vehicle. Now Directed cross-examined Allen Hartley and Davidson about their understanding of the JV Vehicle Shareholders Agreement including clauses 15.1 and 15.3. They also cross-examined Dylan Hartley regarding alleged contractual restraints on dealing with confidential information. But the following points were made by the Gridtraq parties which in my view have some force. 3270 First, Directed's claims of breach of confidence have been premised on the Gridtraq parties having contravened their equitable duties of confidence. There is no claim for breach of the JV Vehicle Shareholders Agreement or Dylan Hartley's implied terms of his employment agreement with the JV Vehicle. 3271 Second, to the extent that the Hartleys or Davidson owed any duties of confidence by virtue of the JV Vehicle Shareholders Agreement or any alleged employment contract, those duties were owed to the JV Vehicle, not Directed. Of course, the JV Vehicle is not a party to this proceeding. 3272 Third, the Gridtraq parties say that to the extent that the Hartleys and Davidson retained information from the joint venture period which was contained on any computers or hard drives returned to them as part of the DOCA, they were entitled to use that information in the future, subject to the restraint in the Deed of Release that they would not approach certain OEM customers for a period of 90 days from the date of execution of the Deed. But on this aspect I do not agree with the Gridtraq parties. 3273 Now Directed has put a number of points on the Directed/Gridtraq JV question. 3274 First, Directed said that after the Directed/Gridtraq JV came to an end, Calvin Hartley, who was Dylan Hartley's brother and Allen Hartley's son, collected three palettes of physical stock and the contents of the JV Vehicle's offices. The items taken included USB storage devices and CDs, hard copy documents including CAN Bus information and hardware specification information. Dylan Hartley claimed that because he was permitted to keep his hardware and personal effects such as his Lenovo laptop, docking station and hard drive, this also entitled him to the confidential information and the right to reproduce the copyright works stored on those devices. Directed's position is that the collection of particular physical items might have been agreed, but this did not include the confidential information and the right to reproduce the copyright works which may have been stored on those devices. I agree with Directed on this particular aspect. 3275 Second, Directed said that the JV Vehicle Shareholders Agreement to which Allen Hartley, Davidson and their companies were subject, contained confidentiality clauses which had enduring and post-contractual effect. I also agree with Directed on this aspect. 3276 Third, Directed said that Allen Hartley, Davidson, Dylan Hartley, Webhouse and Directed amongst others were parties to the Deed of Release. Pursuant to the Deed of Release, Directed as a member of the "DOE Group" continued to supply vehicle tracking/telematics services or any other services, which were the same as those that were formerly provided by the JV Vehicle, to entities including IAL and Isuzu dealers, Volvo Group Australia (including its business trading as UD Trucks) and dealers and Hino Motor Sales Australia and dealers. So, even if the relevant Gridtraq parties might have been released in part from their restraints in relation to competition, they were not released in relation to their obligations under the JV Vehicle Shareholders Agreement concerning confidential information. I agree with Directed on this aspect. 3277 Fourth, Directed said that Dylan Hartley owed an implied obligation of confidentiality to the JV Vehicle pursuant to his employment. The implied contractual duty of fidelity owed by an employee to his employer includes not disclosing confidential information to an unauthorised third party or using it to his own advantage. That duty survives the cessation of employment; but even if the contractual duty did not survive termination, the equitable duty would. I agree with Directed on this aspect. 3278 Fifth, Directed said that Allen Hartley, Dylan Hartley and Davidson, whether in their own capacity or via their entities, were on express notice that Directed/Gridtraq JV information was confidential, that its confidentiality was enduring, and that they were not authorised to use it in any personal capacity or on behalf of another entity. Further, when the Directed/Gridtraq JV came to an end, the DOCA and Deed of Release did not change this. Neither the DOCA nor Deed of Release nor any subsequent representations by the administrator extinguished the Gridtraq parties' duties to maintain trade secrets or confidential information. They were not given any right to use the confidential information or the right to reproduce and use the copyright works of Directed or the JV Vehicle stored on those devices. I agree with Directed on this aspect. 3279 But in my view, many of Directed's claims of authorship, proprietary rights and obligations of confidence over such information were flawed. 3280 Now I should say that the Gridtraq parties have made two points that I am not convinced of. 3281 First, the Gridtraq parties say that Directed knew that during the course of Dylan Hartley's work at the JV Vehicle, he used those electronic devices and the subject documents. Directed never asked him, either directly or by way of its lawyers and/or the administrator, to remove any of their contents before they were returned to him. By analogy, if the DOCA had specified that the Gridtraq parties were entitled to take with them a container of physical documents such as a filing cabinet containing material comprised of the subject information and there was no condition requiring the return or destruction of that material, or even a restraint on the use of the information therein, then it must follow that the Gridtraq parties would be entitled to retain and use that information. The Gridtraq parties say that to suggest that this reasoning would be any different for electronic documents on self-evidently electronic storage devices does not make sense. But I disagree. 3282 Second, the Gridtraq parties say that the terms of the DOCA are silent as to ownership of copyright in the documents that are the subject of Directed's claims against the Gridtraq parties. But they say that whatever the position is as to ownership, following the DOCA, the Hartleys and Davidson had an implied right to reproduce such material for their own purposes. But I do not accept any such implied right. 3283 Let me make some further points concerning the Directed / Gridtraq JV. Directed alleges that the Gridtraq parties did not develop or supply hardware directly to OEM customers and it was only Directed that did this. 3284 But during the operational period of the JV Vehicle, the Hartleys and Davidson were involved in the development of both hardware and software aspects of telematics solutions. 3285 Now from around late 2011, the JV Vehicle had dealings with IAL in relation to the supply of telematics solutions including the DIR6200. In 2015, UD and IAL both approved standard fit programs, by which the JV Vehicle supplied those manufacturers with telematics hardware for their fleet management systems. 3286 Given the Hartleys' and Davidson's involvement in the development of all aspects of telematics solutions, including telematics hardware, it was natural for Dylan Hartley's role in representing the JV Vehicle to extend to him delivering presentations and training to OEM customers and participating in meetings with their representatives; these were concerned with the development and supply of telematics hardware. 3287 Dylan Hartley and Meneses presented marketing and promotional material to several OEM customers, including those for UD, Freightliner Trucks, Hino Trucks, and IAL, which referred to various telematics goods including hardware. From those presentations and meetings, the OEM customers conveyed to the JV Vehicle, through Dylan Hartley and/or employees of Directed, their requests concerning the potential development of additional functions of the telematics hardware that was on offer by the JV Vehicle. This information would then be shared between the necessary individuals within Directed and the JV Vehicle in order to progress the iterative development process. 3288 Documents commonly referred to as open and close lists were used collaboratively by Directed and the JV Vehicle to record the technical user issues that were raised by OEMs and their requests for further development of functionality in both hardware and software aspects of telematics solutions offered by the JV Vehicle. The open and close lists served as an objective, contemporaneous log of the iterative development process that was undertaken on behalf of the JV Vehicle by all concerned within Directed and the Hartleys and Davidson. 3289 The contents of the JV Vehicle open and close lists demonstrated the intimate involvement that the Hartleys and Davidson had in all aspects of development of telematics solutions offered by the JV Vehicle to OEMs, including telematics hardware. In particular, the open and close lists that were current as at late 2015 contained examples of the Hartleys' and Davidson's involvement in development of the "Connect" and "Connect Plus" telematics solutions for IAL, including functionality that involved interaction between the hardware and software components of those solutions. 3290 On some occasions, development tasks involving telematics hardware were delegated to Dylan Hartley and required collaboration between the JV Vehicle and Directed. 3291 Further, from time to time there were bona fide requests made by the Hartleys and Davidson for hardware specific protocol documents from Directed in order to progress their work for the JV Vehicle. 3292 Further, on 18 September 2015, a written agreement was entered into between IAL and the JV Vehicle. The initial term of the agreement was for a period of 5 years. The agreement was signed by Dylan Hartley on behalf of Gridtraq Pty Ltd and by Humphries on behalf of IAL. Under this agreement, Gridtraq Pty Ltd agreed to provide what was known as "Supply and Support Services". Essentially this related to telematics data which was defined to mean all data and any other type of information created or collected concerning vehicles under arrangements between IAL and a customer. 3293 Let me turn briefly to some admissions made by the Gridtraq parties. Admissions by Gridtraq parties 3294 The Gridtraq parties admit that they knew that Directed had been supplying DAVE to IAL since at least 2009 and Directed's telematics units to IAL since at least 2011. 3295 The Gridtraq parties admit that they knew that Directed had been supplying AV units and distributing Directed's telematics units to OEM customers in Australia, and had been supplying AV units to OEM customers in New Zealand for several years. 3296 The Gridtraq parties admit that they knew that Meneses was the person who had the most direct contact with IAL in relation to the supply by Directed of the DAVE units to IAL for several years. 3297 The Gridtraq parties admit that they knew that Meneses was the person who had the most direct contact with Hino, Fuso, Volvo and Mercedes in relation to the supply of AV units for several years. 3298 The Gridtraq parties admit that they knew that Hanhwa Korea had an ongoing and longstanding relationship with Directed for the manufacture, distribution and supply of AV units including DAVE units for several years. 3299 The Gridtraq parties admit that they knew that Meneses was the person who had had most direct contact with Hanhwa Korea and Leemen Korea in relation to the supply by Hanhwa Korea and Leemen Korea to Directed of AV units, including the DAVE units, for supply to OEM customers (including IAL) for several years. 3300 The Gridtraq parties admit that Meneses had over the relevant period represented that he had the title of Business Development Manager at Directed. Further, since approximately October 2013, Meneses had represented that he had the title of "Director" at Directed by changing his email signature to "OE Director". 3301 Let me now say something about the Gridtraq parties' interactions with other parties. I will begin with Mills. Mills 3302 The Gridtraq parties had limited dealings with Mills. Allen Hartley rarely interacted with Mills. He recalled seeing Mills at the Brooklyn premises from around April 2017, or possibly as early as late-February 2017. If Mills was still working at Directed at that time, he was unaware. Allen Hartley has not worked with Mills in relation to the development or promotion of any products. Dylan Hartley met Mills in or around 2009, when Mills worked for Directed. He did not work with Mills on a regular basis, but interacted with him from time to time. Dylan Hartley was aware that Mills had some involvement with Hanhwa from around late-February 2017. But like Allen Hartley, if Mills was still working for Directed at that time, he was unaware. Davidson was not formally introduced to Mills. He did not have any dealings with Mills. Meneses 3303 Meneses first became known to Allen Hartley, Davidson and Dylan Hartley through their work with the JV Vehicle in the period February 2010 to March 2016. 3304 Allen Hartley rarely interacted with Meneses during his time in the JV business. Davidson interacted with Meneses from time to time. Dylan Hartley and Meneses worked together when Dylan was employed by the JV Vehicle. Their work targeted similar trade channels, and from time to time they attended sales presentations together. 3305 Whilst working at the JV business, Allen Hartley was told by Siolis that Meneses was a shareholder in the Directed business. Meneses represented himself as "OE Director", including on business cards and in email communications. 3306 After the JV business came to an end, none of Allen Hartley, Davidson or Dylan Hartley maintained a relationship professional or otherwise with Meneses. Indeed, as Allen Hartley observed, there was a degree of bad blood between them as a result of the manner in which the JV business ended. 3307 Davidson had no communications with Meneses in the period between approximately November 2015 and December 2017. Dylan Hartley's evidence was that after the JV business ended, he felt jaded by Meneses' previous behaviour. He did not want anything to do with him. 3308 In June 2016, Allen Hartley and Dylan Hartley were informed that Meneses was going to resign from Directed, and that he was going to join Hanhwa, but still look after Directed as a client. They were informed that he would continue to work for Directed two or three days per week. 3309 In circumstances where Allen Hartley understood Directed was merely a distributor of Hanhwa products in Australia, he did not consider that arrangement to be in any way problematic. Further, neither Allen Hartley nor Dylan Hartley had any knowledge of what Meneses' obligations to Directed were including what his employment arrangements were. 3310 Now Directed suggested that the Gridtraq parties knew that Meneses' work with Hanhwa was likely to be a significant threat to Directed's business. But there is no evidence that the Gridtraq parties had any knowledge that Hanhwa's business in Australia was in conflict with its obligations to Directed. 3311 First, the Gridtraq parties were told by Lee that Meneses would continue to support Directed with its existing business as a distributor of Hanhwa's products. 3312 Second, the Gridtraq parties were told by Lee that the new business Hanhwa was pursuing was for the supply of a radio for a small new range of vehicles which Directed did not want to pay the tooling on. 3313 Third, the Gridtraq parties had nothing to do with Meneses in their dealings with Hanhwa. They did not concern themselves with him or what he did. His office at the Brooklyn premises was located in a different part of the building to the part occupied by the Gridtraq parties. 3314 Now from around mid-2016, Allen Hartley and Dylan Hartley negotiated the lease of the downstairs portion of the Brooklyn premises with Lee. 3315 In July 2016, following requests from Lee, Meneses attended the Brooklyn premises to inspect the office space. In cross-examination, Directed suggested to Allen Hartley that because Meneses inspected the Brooklyn premises prior to Hanhwa taking the lease, it was apparent that Meneses was to have some ownership control of the Hanhwa Aus operation. But Hartley made it clear that he understood that Lee's father would be responsible for making the decision on the lease. 3316 Now at some point between July 2016 and December 2016, Allen Hartley was informed by Lee that Meneses had commenced working at Hanhwa. From around that time, Allen Hartley saw Meneses around the Brooklyn premises more frequently. But he still had little contact with him. 3317 Further, the only email evidencing communication between any representative of the Gridtraq parties and Meneses concerned information regarding a possible tender for Australia Post in March 2017. That tender was not an opportunity to exploit the safety screen or the CPU. Gridtraq submitted a tender to Australia Post, but did not receive the business. In cross-examination, it was suggested to Allen Hartley that the fact Meneses sent an email to the Gridtraq parties about the Australia Post tender was evidence that there was not, in fact, bad blood between them. That was rejected by Hartley. 3318 Now in late October 2017, Allen Hartley and Dylan Hartley attended the Tokyo Truck Show in Japan. On the evening of 26 October 2017, they had dinner with Lee. Meneses arrived at that dinner with Lee. Allen Hartley and Dylan Hartley did not know he was going to attend. 3319 The following morning, on 27 October 2017, the search order issued by me was executed at the Brooklyn premises and at Meneses' house. Allen Hartley received several calls that morning from Meneses, in which Meneses requested the name of the law firm Hartley had used in relation to the DOCA. According to Hartley, Meneses told him that a "sheriff of the court" was at his house and "demanding his wife gets a lawyer". Hartley's perception was that Meneses was distressed at what was happening at his house. At that stage, Hartley did not know that the Gridtraq section of the Brooklyn premises was also being searched. 3320 Further, Meneses was not involved in the safety screen project. And he was not involved in the development of the CPU. 3321 Further, the Gridtraq parties had no knowledge of any involvement of Meneses in the efforts to supply a telematics unit to Hirschmann. 3322 Now in late 2018, the Gridtraq parties were invited by Mercedes to present to them a telematics proposal. Mercedes was looking to transition its telematics supplier from the incumbent to a new supplier. The prospective proposal presented was a joint Hanhwa-Gridtraq presentation, which was made in association with a presentation by Meneses of Hanhwa. By that stage, the Gridtraq parties had not established communication between the CPU and any radio unit intended to be supplied by Hanhwa to Mercedes. Further, by that stage, Meneses had left the Directed business. 3323 Now contrary to the suggestion by Directed, Dylan Hartley had no desire at all to help Meneses. The Gridtraq parties did not do business with Meneses. They did business with the Hanhwa parties. The comment "it's got nothing to do with me" is in the context of Dylan Hartley explaining that he had little or no involvement with Meneses and in the context of him having earlier said that, so far as he understood the situation, Meneses was able to work for both Hanhwa and Directed. 3324 Further, as Dylan Hartley explained: No. So I think it's not a secret that neither myself or Jeremy or Allen had any affection towards Meneses, and I think Ryan was quite aware of that. And the normal commercial relationship between Quantam and Hanhwa was such that we would have no dealing with Meneses. 3325 Further evidence was given: GOLVAN QC: Yes. But you had just been told that Meneses would be working for both companies and you were in an arrangement with Hanhwa where it would be in competition with Directed? DYLAN HARTLEY: I think, Mr Golvan, it's – like any business, if I don't get on with one particular person, I'm not forced to deal with that person. You know, you have multiple account managers that will manage different accounts. It's not unusual behaviour. And Ryan has a long history with Meneses going back to when he went to university and he obviously values a friendship or connection there and the feelings are mutual. If he was involved, that was fine but he didn't have to be involved in everything. 3326 Now Directed's case is that the Hartleys knew that Siolis and Tselepis were (allegedly) ignorant of the fact that Meneses was working with Hanhwa. But the true position is the Hartleys did not know that. The following evidence was given: GOLVAN QC: Mr Hartley, you knew in June 2016 that the arrangements in which Meneses would continue to work for Directed but also work for Hanhwa, that had to be kept secret from Siolis and Tselepis. You knew that, didn't you? DYLAN HARTLEY: Well, how is that even possible that I would know such a thing? I don't sit in meetings with Siolis and Tselepis and Johnny in June of 2016 to be able to give you comment on their relationship. I've got no knowledge of what you're trying to suggest. 3327 Further, Allen Hartley's evidence regarding Meneses' alleged conflict of interest was not simply "it was none of my business". As Hartley explained, Lee told him that Meneses was going to still be supporting Directed. 3328 Now let me at this point say something about Directed's case concerning the position of Meneses and the Gridtraq parties. 3329 On 12 July 2016 Dylan Hartley provided pictures and plans of the Brooklyn premises. Lee forwarded this to Meneses' personal address who, in turn, instructed Lee about how to proceed. Lee then made arrangements for himself and Meneses to inspect the Brooklyn premises, and then agreed to a long-term lease. 3330 On 15 July 2016, Dylan Hartley referred to the prospect of another interested tenant but stating "We would obviously prefer to have you downstairs so we can work together and help you". 3331 Meneses was given his own office at the Brooklyn premises. 3332 Now Directed says that from their 6 year relationship in the Gridtraq/Directed JV, the Gridtraq parties well knew that Meneses was a senior and trusted full time employee of Directed. They must have known that he could not also act to assist Hanhwa in any commercial activities that might be in conflict with Directed. This necessarily includes any cooperative endeavour between Hanhwa and Gridtraq, as Gridtraq was, by early 2016, a direct competitor of Directed. 3333 The Gridtraq parties' explanation for Meneses' conduct rests on them having been misled by Lee and/or Meneses. 3334 Allen Hartley says that in mid-2016 Lee told him that Meneses planned to resign from Directed to work at Hanhwa. However, he would continue to look after Directed as a client, and work at Directed two days a week. Hartley further says he was told by Lee "at some stage between July and December 2016" that Meneses was now employed by Hanhwa. He recalled seeing Meneses at the Brooklyn premises from time to time. Dylan Hartley says something slightly different. 3335 But Directed says that both Allen Hartley's and Dylan Hartley's explanations should be rejected. They suggest dual employment rather than resignation from Directed. Further, Dylan Hartley acknowledges that he and Meneses worked quite well together at Directed. He had a precise appreciation of Meneses' roles and responsibilities at Directed. The conflict of interest Meneses would have placed himself in, if the explanations were true, was inescapable and would, or should have been, self-evident to the Hartleys. 3336 In June and July 2016 Meneses participated in negotiations for the new Hanhwa Australia entity to lease space in premises occupied by the Gridtraq parties. Lee also advised Allen Hartley at this time that Hanhwa intended to supply a new model radio for its N Series directly to IAL to the exclusion of Directed. 3337 Directed says that it must have been clear to the Hartleys that Meneses was involved in the new business being set up in Australia by the Hanhwa parties, and in their efforts to supply a new model radio directly to IAL to the exclusion of Directed. Yet Lee and Meneses told Dylan Hartley and Allen Hartley that Meneses would somehow continue to be employed by both Directed and the Hanhwa parties. 3338 Directed says that by reason of their 6-year close working relationship through the JV, the Gridtraq parties had substantial knowledge of Directed's business and of Meneses' senior trusted position within it. They knew that IAL was a substantial customer of Directed's. They knew that Hanhwa Korea was the long-term manufacturer of the AV units that Directed supplied to IAL. In that knowledge they were now also told that Hanhwa would be competing with Directed to supply a new AV unit to IAL directly, that Meneses would be working for both Directed and Hanhwa simultaneously and that Meneses was so involved in the new Hanhwa business that he took an active part in leasing decisions. 3339 Directed says that the Gridtraq parties knew or must have known this represented a conflict of interest on Meneses' part. They could not have supposed that Directed would have consented to Hanhwa's entry into competition with it to sell a product it had developed with Hanhwa Korea. Indeed, they say they were told by Lee that this decision was the result of a dispute with Directed over payment for tooling for the Isuzu AV unit. If true, it put them on notice that Directed would not have consented to any of the relevant conduct. The Gridtraq parties must have known that for Meneses to have any involvement in such an endeavour was wrong and that for Hanhwa to engage with Meneses in that endeavour was similarly wrong. 3340 Further, Directed stressed that Dylan Hartley had worked in close proximity to Meneses at the Keilor premises of Directed. He acknowledged in his affidavit that their "work targeted similar channels within the automotive industry, given the synergies between telematics and the audio-visual (AV) products". From time to time, Meneses and Dylan Hartley attended sales meetings together, during which they presented products to existing and prospective customers. 3341 From about late June 2016, Allen Hartley became involved in discussions with Lee in relation to the potential leasing of the downstairs section of the Brooklyn premises. All of the negotiations regarding the terms of the lease agreement were "initially" between Lee (on behalf of Hanhwa) and Hartley. Directed says that the use of "initially" sign-posts his later negotiations with Meneses, a matter Hartley sought to minimise. 3342 When showing Lee the exterior of the Brooklyn premises, Lee told Allen Hartley that Hanhwa intended to supply a new model of radio directly to IAL because Directed did not want to pay for tooling to produce the unit. Directed says that this confirms that any such radio was to be in direct competition with Directed. Further, if true, it put the Gridtraq parties on notice that Directed was unlikely to consent to this conduct. It follows that any role which Meneses might then have with Hanhwa, which had this prospective supply at its core, ought to have put the Gridtraq parties on inquiry as to his status at Directed. 3343 During that same visit, Allen Hartley deposed that he was also told by Lee that Meneses was going to resign from Directed, and that he was going to join Hanhwa head office but still look after Directed as a client and would continue to work at Directed two days a week. Directed says that the prospective nature of this language suggests that, in the case of Meneses' involvement at that time, Allen Hartley knew that he was still 100% a Directed employee or director. 3344 In June and July 2016, Meneses participated in negotiations for the new Hanhwa Australian entity to lease space in premises occupied by the Gridtraq parties. The email exchange between the parties was: LEE: Hi Allen, Can Johnny see your office in this week? I spoke with my team that we want to go ahead with you guys. Very happy!! ALLEN HARTLEY: Hi Ryan, That will be fine. Thursday would be best. If you can please ask Johnny to text me a time that suits him and I will meet him at the office. Best regards Allen. 3345 Directed says that in cross-examination of Allen Hartley, it was put to him that he knew, at the time of this email that Meneses had a very senior position at Directed. He responded, "I understood that he was a shareholder and the director of Directed OE. I understood he was a third shareholder". 3346 Dylan Hartley deposed that, while Meneses was at the Brooklyn premises between 28 June 2016 and 5 July 2016: Mr Meneses said to Allen and me that he was going to leave Directed to work with Hanhwa in Australia at the "factory level", which I understood to mean working at the manufacturing level for Hanhwa Korea and not at the distributor level as he had done for Directed. Mr Meneses also said that he would still work from the Directed office at the Keilor premises on two or three days each week, but he would focus on new business and market opportunities by which I understood him to mean supporting the current distribution channel that he had established with Directed and working to establish new sales opportunities for Hanhwa. 3347 Directed says that within this tortured explanation, Dylan Hartley has acknowledged his understanding that Meneses was to remain at Directed supporting the current distribution channel and that he would work to establish new sales opportunities for Hanhwa. This understanding of Meneses' role (combined with knowledge of his role at Directed and relationships with OEM customers such as IAL, Hino, Fuso, Volvo and Mercedes in relation to the supply of AV units), which further suggests that this dual role was intended to be ongoing, taints any new sales opportunities pursued by the Gridtraq parties in conjunction with Hanhwa at all material times going forward, if they were to involve relationships with OEM customers such as IAL, Hino, Fuso, Volvo and Mercedes. Note also the prospective language which suggests that when Meneses attended the Brooklyn premises, Dylan Hartley knew that he was still a Directed employee or "Director" at that time. 3348 Further, Allen Hartley deposed that at some stage between July and December 2016, he was informed by Lee that Meneses had started working at Hanhwa. At that time, he assumed that, because Meneses was employed by Hanhwa, he was no longer employed by Directed. The following exchange occurred in cross-examination: WISE QC: So you say that Ryan Lee informed you some time between July and December 2016 that Meneses had started working for Hanhwa? ALLEN HARTLEY: That's correct. Q: Do you stand by that evidence? That's what he told you then? A: I need to stand by it because that's what I believe. Q: Mr Lee's evidence at paragraph 249 of his affidavit is that Meneses commenced employment with Hanhwa in August 2017. Okay. Do you understand what I've just said to you? A: That's a year later. Q: Yes, it's a year later. And what I'm suggesting to you, sir, is that your evidence that Lee told you that he had started working between July and December 2016 is false? A: I can't explain the discrepancy between them. I can only tell you what I knew and understand. 3349 When Meneses' apparent conflict of interest was put to Dylan Hartley, he said: GOLVAN QC: It's correct, Mr Hartley, that you knew that Meneses was going to continue working for both Hanhwa and Directed and you did nothing to address that arrangement with Hanhwa by way of any complaint or issue? DYLAN HARTLEY: I don't' – I don't recall. And again, our feelings were quite well known. There was – there hasn't been, you know – I'm struggling to find the words but in terms of a normal relationship, yes, Johnny is around and, you know, the interaction of such, it happens. But, you know, in terms of a conflict or things like that I don't really care. 3350 Directed says that this is one of the limited occasions when the Gridtraq parties were prepared to concede that they interacted with Meneses, even though they worked together in the same building at all material times. Further, Dylan Hartley's "reaction in terms of a conflict or things like that I don't really care" is relevant. 3351 Directed also referred to various November 2016 events and said that the coincidence in timing of these events is strong evidence that the parties were working together on a joint project. Further, Meneses, Dylan Hartley, Allen Hartley and Lee worked together in the same place. 3352 Directed also contends that the Gridtraq parties were indifferent to Meneses' actual, apprehended or suspected wrongdoing. Under cross-examination the following exchange took place with Allen Hartley: WISE QC: Mr Hartley, I'm going to put three propositions to you and then I'm going to ask you a question. Okay. But just try and listen carefully. Given that you had seen that Meneses was involved in assisting Hanhwa to set up its business in Australia, you were told by Ryan Lee that Meneses was still working for Directed two to three days per week and you were told by Ryan Lee that Hanhwa was seeking to supply AV units and accessories to Isuzu in Australasia, I want to suggest to you, sir, in the knowledge of those three things you knew that Meneses was likely to be assisting with that endeavour without Directed's knowledge. Do you agree with that? ALLEN HARTLEY: Mr Lee clearly told me that Mr Meneses was going to still be supporting Directed. So I can't agree with what you submitted to me. Q: And I want to suggest to you, sir, that you knew, in view of that information, that Hanhwa and Meneses were taking business opportunities away from Directed. Do you agree with that? A: Well, that's not true. Q: And in the light of that knowledge, you, nevertheless, asked no questions of Meneses or Ryan Lee as to whether Directed was aware of their conduct. You didn't ask those questions, did you? A: Mr Wise, I have no interests whatsoever in Johnny Meneses and whatever he does. All right? I was actually hugely disappointed to know that he was anywhere near my premises. So I don't' need to know what he does or what he doesn't do. Okay. I lease a premise to Hanhwa and it's a tenant that I think complements my telematics business. And that's as far as my relationship needs to go. Q: Mr Hartley, you haven't answered my question. I will give you one last opportunity and then I will move on. The question was, in light of the knowledge that you had, you nevertheless asked no questions of Meneses or Ryan Lee as to whether Directed was aware of their conduct. Do you want to answer that question? A: It was none of my business. 3353 But in my view this passage in the cross-examination does not make Directed's point at all. 3354 Further, Directed asserted that no enquiries were made of Directed in relation to the obvious conflict between the Hanhwa parties, utilising Meneses' assistance and involvement, to supply this new AV unit, which Directed had been involved in, to IAL. But there was no obvious conflict. The position was that so far as Gridtraq was concerned, Meneses was embedded for 2 or 3 days a week in Directed's principal supplier with the obvious advantages to Directed that would flow from such an arrangement. Further, the Gridtraq parties had been told by Hanhwa that Directed was not interested in the new AV unit and would not pay the tooling for it. 3355 Further, Directed's attempt to demonstrate that Dylan Hartley did not recognise an obvious conflict of interest was ineffective. Gridtraq assumed that Directed was not interested in the new Hanhwa AV unit. And as Dylan Hartley pointed out, so far as Gridtraq was concerned, standing behind Meneses was Siolis of Directed. So, as the Gridtraq parties succinctly put it, it would not be surprising from the Gridtraq parties' point of view that Siolis could do a deal in relation to a particular product with Hanhwa and arrive at an appropriate price and other terms and Meneses could then move the project forward with the advantage of being embedded in the business of the supplier. Further, Dylan Hartley had no time for Meneses. 3356 Finally, Directed points out that in late-October 2017, Allen Hartley, Dylan Hartley, Lee and Meneses had dinner together in Japan, during the Tokyo Truck Show. The following morning, on 27 October 2017, the search order was executed at Brooklyn premises. Meneses had several telephone calls that morning with Allen Hartley about the matter. Hartley deposed: I received several phone calls from Mr Meneses that morning, who seemed quite distressed by what was happening back in Melbourne. Mr Meneses asked me to tell him the name of the law firm I had used in my previous dealing with Directed (in relation to the DOCA in March 2016). I told Mr Meneses that I had engaged Hazel Brasington of Norton Rose Fulbright, and said I would find her mobile number (as it was before office hours). 3357 He went on to say that, at that stage, he did not know that the Gridtraq section of Brooklyn was also being searched, or he would not have recommended that Meneses engage Ms Brasington. He then says that "later that morning", his younger son informed him that Brooklyn was being searched. 3358 Now Directed says that it is important that in a crisis, Hartley was one of the first people to whom Meneses turned. It is said that it is not a matter one would ordinarily disclose to a person with whom one had an arms-length relationship. But in my view this is all a stretch. Gridtraq parties' knowledge of Meneses' and Mills' employment contracts 3359 Now the Gridtraq parties' knowledge of the terms of the Meneses employment agreement is relevant to the allegation against them of inducing Meneses to breach the terms of his restraint. It is said that it can be inferred that the Gridtraq parties had relevant knowledge based on the following matters. 3360 It is said that the Gridtraq parties knew at least from 2010 that Meneses was employed by Directed as its Business Development Manager and/or its OE Director. 3361 It is said that the Gridtraq parties knew that in mid-2010, Meneses represented to them that he had invested in and was a shareholder in Directed. They knew that until approximately October 2013, Meneses represented that he had the title of Business Development Manager of Directed, and that after that date he represented that he had the title of director of Directed by changing his email signature to OE Director. They knew that in June 2016, Meneses represented that he had resigned from or was going to resign from Directed, he was negotiating a payout of his shares in Directed, and he was going to join Hanhwa and would continue working with Directed as part of his new role. 3362 It is said that Allen Hartley's and Dylan Hartley's evidence is that Meneses told them in around June 2016 that he would continue working for Directed two to three days per week whilst at the same time being employed by the Hanhwa parties. 3363 Further, Directed says that Allen Hartley, Dylan Hartley and Davidson met Meneses wearing his "Directed hat" accompanied by his Directed colleagues including Jaffe and Summers at the Brisbane Truck Show held from 25 to 28 May 2017. They spoke briefly with them. Allen Hartley recalls walking past Meneses and Jaffe. 3364 Therefore, so Directed says, the Gridtraq parties knew that in June 2016 and for some time thereafter, Meneses remained an employee or director of Directed and that he owed fiduciary duties to Directed. In this respect, Directed said that Allen Hartley could only point to some stage within a 6 month period in the second half of 2016 as to when he was supposedly informed by Lee that Meneses was now employed by Hanhwa. Hartley further said that he could not explain the discrepancy between his knowledge, and Lee's knowledge as to Meneses' commencement date at Hanhwa Aus. It is said that such a vague explanation should be regarded as unsatisfactory. 3365 Further, whether Meneses held himself out to the Gridtraq parties to be a director or an employee of Directed does not matter. Either way, he was subject to equivalent fiduciary and statutory duties, and the existence of such duties was known or to be presumed to be known by the Gridtraq parties. 3366 Further, Directed says that the Gridtraq parties knew that Mills was employed by Directed as a Project Manager from 1 June 2009 to 8 March 2017. Allen Hartley and Dylan Hartley knew that Mills worked for Directed and Allen Hartley said that he started seeing him at the Brooklyn premises from around April 2017. 3367 Further, Directed's case is that the Gridtraq parties knew that at all times until 7 November 2017, Meneses was employed by Directed and owed fiduciary and statutory duties to Directed, and knew that until 8 March 2017, Mills was employed by Directed and owed fiduciary and owed statutory duties to Directed in that regard. 3368 Accordingly, Directed says that the Gridtraq parties knew or should be presumed to have known that Meneses and Mills were obliged to not improperly use their positions to gain an advantage for themselves or the Hanhwa parties or the Gridtraq parties, or cause detriment to Directed, and not entitled to appropriate for themselves or divert to the Hanhwa parties or the Gridtraq parties a maturing business opportunity of Directed or an opportunity otherwise available to Directed and which it could have pursued or wanted to pursue in the ordinary course of its business. 3369 But in my view, Directed's case against the Gridtraq parties is overblown in this respect. Clearly they had little knowledge of Mills' position. And it adds little to put hypothetical propositions that they knew that if Mills had position X, then he owed duties Y and was not free to do Z. 3370 A similar point can be made concerning Meneses. 3371 Let me now say something about the Hanhwa parties. The Hanhwa parties 3372 The Gridtraq parties were aware that Hanhwa Korea was the manufacturer of the radios that were being distributed by Directed. The Gridtraq parties knew that Hanhwa Korea had an ongoing and longstanding relationship with Directed, and had collaborated with Directed for the manufacture, distribution and supply of AV units including the DAVE units. 3373 But the Gridtraq parties did not know whether Hanhwa Korea was, separately from its business with Directed, supplying AV units in the Australian market directly to OEMs. 3374 The Gridtraq parties were not aware of the existence of any contractual relationship between Directed and Hanhwa Korea and to the extent any such arrangement could be inferred, they were not aware of the terms of any such contractual arrangement. 3375 I agree with the Gridtraq parties that this lack of knowledge undermines Directed's claims in relation to the alleged accessorial and inducement conduct. 3376 Let me now deal with some relevant events. 3377 From late 2014, at the request of YS Lee of Hanhwa Korea, Allen Hartley and Davidson introduced Hanhwa to some of their industry contacts in South Africa, including Toyota South Africa and Isuzu South Africa. 3378 From around that time, Quantam offered to provide Hanhwa Korea with support for integrated telematics solutions for any new markets or distribution opportunities Hanhwa Korea was looking to enter, although this did not include the Australian market. 3379 In January 2015 and to enable Quantam and Hanhwa Korea to engage in discussions, the companies executed mutual non-disclosure agreements. 3380 In March 2015, the Gridtraq parties commenced working with Hanhwa Korea on the safety screen project. 3381 In April 2015, Hanhwa Korea invited Quantam to jointly present a combined telematics solution to Hirschmann in Germany. 3382 On 11 August 2015, for the purposes of the safety screen project, Quantam and Hanhwa Korea executed a Heads of Agreement. The Heads of Agreement recorded that Quantam and Hanhwa Korea wished to collaborate and look for new markets for telematics, screen hardware and head units. The agreement was made in the context of the safety screen project, which was conceived in response to a potential requirement for one of Quantam's US-based customers, and which was initially intended to be supplied outside Australia only. The only other collaboration between Quantam and Hanhwa Korea at that time concerned their joint presentation to Hirschmann in Germany which was unsuccessful. 3383 Now as to the Heads of Agreement, aspects of which I have set out earlier but it is convenient to repeat, clause 1 contained relevant introductory paragraphs: Quantam owns and controls certain Intellectual Property relating to Telematics Hardware Design, Firmware, manufacture and online Portal Backend Software Design; Hanhwa owns and controls certain Intellectual Property relating to In-Vehicle Head Unit Hardware Design, Firmware and owns a manufacturing and hardware testing infrastructure; Quantam wishes to have their telematics hardware design embedded in a screen and head unit reporting back to their Portal Back end software application in order to make telematics as a large scale commercial product available to the market; Hanhwa wishes to embed telematics in a screen and in their head unit reporting back to the Quantam Telematics portal in order to embed telematics in their head unit in order to make it available included with a telematics offering as a large scale commercial product available to the market; Quantam and Hanhwa wish to collaborate and look for new markets for telematics, screen hardware and head units; Neither Party is certain of the commercial success of offering the new product, and or the integrated product to the market as standalone hardware or as integrated hardware with telematics reporting back through to the Quantam Telematics Portal yet each believes that there is potential commercial success, to their mutual benefit, in doing so; and Neither Party wishes to relinquish ownership or control of their respective Intellectual Property nor, to acquire ownership in the Intellectual Property of the other, at this time. 3384 Clauses 2.1, 2.1.1, 2.1.2 and 2.1.12 provided: 2.1 The parties will collaborate in a proof of concept to establish the market viability of offering the integrated product to the market as standalone hardware and as an integrated hardware with telematics reporting back through to the Quantam Telematics Portal on the following basis: 2.1.1 Each Party will retain full ownership and control of their respective Intellectual Property, protected under the Non-Disclosure Agreement (NDA) entered into between the Parties on 20 July 2015 and as attached; 2.1.2 Both Parties will do all that is necessary, including new hardware and firmware design to convert their individual product offerings into an integrated product design in order to offer the new and existing product to current clients and new clients introduced on a consumer scale basis and to any potential markets (the market); … 2.1.12 It is specifically recorded that nothing in the Agreement binds either party to the other exclusively. Either party is free to enter into similar or different agreements with any third party provided that rights accorded to a third party are not in conflict with this Agreement. 3385 At the same time as the Heads of Agreement being entered into, the parties also entered into a reciprocal confidentiality and non-disclosure agreement, facilitating the disclosure to each other of a broad range of information of a "confidential and proprietary nature". The use to which such information could be put was only for the purpose set out in clause 2 of Schedule A, being: 2. Purpose: The parties will collaborate in a proof of concept to establish the market viability of; 2.1 Developing a new Fleet Management screen with integrated telematics design. 2.2 Offering the current head-unit products manufactured with a telematics capability. 2.3 Offer the current Quantam Fleet Management CPU product to Hirschman. 2.4 Develop and Hirschman specific hardware unit. 2.5 Offer Telematics communication and Portal Software. 2.6 Manufacture new designed and existing Quantam telematics and electronic products in the Hanhwa manufacturing facility. 2.7 Develop and manufacture the Quantam asset monitoring and tracking Tags in various forms and functionality. 2.8 Quantam distributing Hanhwa products and head units into markets as mutually agreed by both parties. 3386 No joint venture company involving Hanhwa Korea and Quantam was formed to pursue the opportunities identified in the Heads of Agreement. 3387 Further, the relationship between the Gridtraq parties and Hanhwa and these arrangements did not bring Gridtraq into conflict with the Directed / Gridtraq JV. Quantam is a different entity to the JV Vehicle. It had and has its own separate business interests. 3388 Further, the arrangements between Quantam and Hanhwa did not prevent Hanhwa from engaging in the development or supply of AV units for Directed that had telematics functionality. The Heads of Agreement disavowed exclusivity and contemplated collaboration in respect of new markets. 3389 Now Directed submitted that in the period January to July 2015 Gridtraq and Hanhwa Korea negotiated and entered into a Heads of Agreement. This is incorrect. The Heads of Agreement was between Quantam and Hanhwa Korea. 3390 Further, the suggestion by Directed that the Heads of Agreement envisaged that Hanhwa and the Gridtraq parties would offer new and existing products in direct competition with Directed's AV units stands in contrast to the fact that the agreement was directed at collaboration in respect of "new markets" and ignores those parts of the agreement which expressly acknowledge that any future business would not cut across any existing limitations on the parties with respect to their trading partners. 3391 Now on 27 July 2016 Hanhwa Aus entered into a lease for the Brooklyn premises that contained a permitted use that prevented Hanhwa Aus from engaging in any telematics related work that conflicted with Gridtraq. 3392 Directed says that the effect of these engagements brought Gridtraq into conflict with the Directed / Gridtraq JV. It also prevented Hanhwa from engaging in development or supply of any AV units for Directed that had telematics functionality. It is said that the practical effect of these engagements was that from mid-2015 (Hanhwa Korea) and mid 2016 (Hanhwa Aus) the Hanhwa parties agreed to an exclusive business relationship with the Gridtraq parties in relation to the supply of telematics related products. This precluded any continuing relationship with Directed. 3393 Directed says that with Gridtraq's knowledge of the continuing, longstanding business relationship between the Hanhwa parties and Directed, as a direct competitor of Directed the Gridtraq parties ought to have known that their contractual arrangements with the Hanhwa parties would bring the Hanhwa parties into conflict with their contractual arrangements with Directed. 3394 Now I do not accept Directed's assertions. 3395 First, there was no requirement to inform Directed of the entering into of the Heads of Agreement between Quantam and Hanhwa Korea. And as the evidence makes clear, this agreement related to the safety screen project. 3396 Second, to the extent that the Heads of Agreement refers to existing units, this does not take the matter far. 3397 Further, the purpose of the Heads of Agreement was to collaborate on a proof of concept to establish the market viability of offering an integrated product, for example, a new product, that is to say the safety screen. 3398 Let me proceed further with the chronology. 3399 In October 2016, Hanhwa Korea invited Quantam to send a combined presentation of a telematics solution to Toyota Japan. 3400 In late 2016, Lee expressed to Allen Hartley a desire for Quantam and Hanhwa Korea to do more business together. He identified a range of radios for a new model of vehicle being imported that Directed did not want to pay the tooling on, that Hanhwa intended to distribute directly, and that may include a telematics requirement if the manufacturer requested. Now the Gridtraq parties did not understand that this new business would put Hanhwa Korea in direct competition with Directed. And they had no knowledge of the precise nature of the relationship between Hanhwa Korea and Directed. 3401 Following the discussion with Lee, Allen Hartley attempted to motivate investment from the Quantam board in the form of additional engineering resources to enable Quantam to become involved in further work with Hanhwa. But Hartley's request for additional resources was rejected. In December 2016, he submitted a more detailed proposal to the board including indicative figures, but the Quantam board did not support further collaboration between Quantam and Hanhwa Korea. 3402 Now between November 2016 and March 2017, Davidson and Dylan Hartley attempted to establish integration between an Isuzu radio and Quantam's telematics unit. They were unsuccessful in doing so. The units were not capable of communicating with each other, as they operated using different communication protocols. 3403 In October 2017, Quantam introduced Hanhwa Korea to its contacts at United Radio in the USA, via an associate of Thibaud. 3404 Now the Gridtraq parties' witnesses were cross-examined about their dealings with Hanhwa Korea in relation to the pursuit of international opportunities. And it was suggested that these dealings put Allen Hartley and Davidson in breach of their obligations to the JV Vehicle under the JV Vehicle Shareholders Agreement. But the following may be observed. 3405 First, the Gridtraq parties understood that the JV business was limited to Australia, and customers outside Australia by mutual agreement only. As Allen Hartley explained: The joint venture was formed for the Australian market and any opportunity that came in the Australian market would go through and did go through the joint venture. That's why Quantam provided products into the joint venture in Australia. Okay. The overseas opportunities were Mr Siolis had a contact with Directed Electronics America and we tried to do something with them and we failed. He had a contact in Malaysia and we tried to do something and that failed. And that was the sum total, and obviously we tried to do something in South Africa and that failed. And that was the arrangement that we had with Mr Siolis. 3406 Second, to the extent that the JV Vehicle Shareholders Agreement reflected an intention of exclusivity on the part of the shareholders at the time it was executed, the nature of any restrictions on the JV Vehicle's shareholders engaging in other business changed as a result of Siolis wanting to sell the Gizmo product and the Viper Smart Start product. These were in direct competition. Indeed, according to the Gridtraq parties the Viper product should have been distributed through the JV Vehicle, as it was a telematics product with fleet management capabilities. But it was distributed by Directed. 3407 Third, Siolis and Tselepis were aware of Allen Hartley's and Davidson's relationship with Quantam, which supplied its own telematics hardware products to the JV Vehicle. 3408 Now it was suggested by Directed that by pursuing international opportunities with Hanhwa Korea, this would put Allen Hartley and Davidson in breach of their obligations to Directed under the JV Vehicle Shareholders Agreement. But they did not owe any obligations to Directed, but rather they owed obligations (if any) to the JV Vehicle. Further, there are no claims made regarding the breach of any obligations to the JV Vehicle owed by Hartley or Davidson. And the JV Vehicle is not a party to this proceeding. Further, any claims would have been barred by the operation of the Deed of Release. 3409 Now Directed speculated that the Gridtraq parties tried to extricate themselves from the JV Vehicle Shareholders Agreement so that they could undertake further work with Hanhwa Korea and deal directly with OEMs. But there is no evidence to support this proposition. 3410 Further, Directed submitted that the JV Vehicle's entry into of a direct agreement with IAL for supply and support services in relation to telematics data was a major catalyst for the dispute leading to the termination of the Directed/Gridtraq JV. But this is not supported by the evidence either, for the reasons submitted by the Hanhwa parties. 3411 Let me deal with one other matter. In late June 2019, the Gridtraq parties established a new entity, being Hanhwa International Connected Vehicles Pty Ltd (HICV), which was established to manage anything to do with connected vehicles and also for any referrals to the Gridtraq parties from Hanhwa. It was directed at future business. It used the name "Hanhwa" because the company was established to submit a tender document using Hanhwa's name with Hanhwa's blessing. At the time of trial Hanhwa did not hold any interest in HICV. Meneses held no interest in HICV. HICV was not a company incorporated as a joint venture company between Hanhwa and Quantam. It has nothing to do with any of the previous opportunities which had been pursued by Quantam and Hanhwa Korea. Inducing breach of contract 3412 Let me first deal with the question of knowledge and focus on the case concerning inducing breach of the Hanhwa Korea Agreement. 3413 Directed says that through the Hartleys and Davidson, the Gridtraq parties knew or can be inferred to have known the following matters. 3414 It is said that the Gridtraq parties knew about the development of the SuperDAVE between Directed and Hanhwa Korea, which was always intended to have telematics functionality and to operate in conjunction with the Directed telematics unit and the Gridtraq platform, for supply by Directed to IAL. They had the former knowledge, but not the latter. 3415 It is said that the Gridtraq parties knew that Directed had provided Hanhwa Korea with confidential information in order to pursue the SuperDAVE opportunity. But in my view this is unclear. 3416 It is said that throughout the period from August 2014 to December 2015, the Gridtraq parties were working collaboratively and as joint venturers with Directed in the same premises to exploit telematics units and services including to IAL. It is said that for about five years, as Allen Hartley said, they had been "one big happy family living on one floor" where "[s]ome people were doing radios and some people doing telematics business". It is said that the Gridtraq parties also worked collaboratively with Directed in the marketing, sale and supply of telematics hardware, software and solutions to OEMs including to IAL, which was known to be a large and important customer of Directed. But in my view all of those assertions are too rolled up. 3417 It is said that the Gridtraq parties had constructive knowledge of a contract for manufacture between Directed and Hanhwa Korea that obliged Hanhwa Korea to supply the bespoke products made for Directed, solely for the benefit of Directed, such contract restricting the use of confidential information, and implied obligations of good faith between Hanhwa Korea, in particular not to supply product developed in association with Directed to a third party. Of course I have determined earlier that the exclusivity term as alleged by Directed did not exist in the Hanhwa Korea Agreement. 3418 Directed says that such knowledge should be readily imputed from the awareness of the Gridtraq parties of the very considerable trading over a long period of time between Hanhwa Korea and Directed, the making of the AV units by Hanhwa Korea for Directed based on Directed's specific requirements and the disclosure of confidential business opportunities by Directed to Hanhwa Korea. 3419 Directed says that the Gridtraq parties since about April 2016 were aware that Directed had been supplying AV units and distributing telematics units to OEM customers in Australia, and had been supplying AV units to OEM customers in New Zealand for several years. They were aware that Hanhwa Korea had an ongoing and longstanding relationship with Directed and had collaborated with Directed for the manufacture, distribution and supply of AV units including DAVE units for several years. They were aware that Meneses was the person who had had most direct contact with Hanhwa Korea and Leemen Korea in relation to the supply by Hanhwa Korea and Leemen Korea to Directed of AV units, including the DAVE units, for supply to OEM customers including IAL and Mercedes for several years. They were aware that Directed had been supplying the DAVE to IAL since at least 2009 and telematics units to IAL since at least 2011. They were aware that Meneses was the person who had the most direct contact with IAL in relation to the supply by Directed of the DAVE units to IAL for several years. And they were aware that Meneses was the person who had the most direct contact with Hino, Fuso, Volvo and Mercedes in relation to the supply of AV units for several years. 3420 Directed says that the Hartleys and Davidson had first-hand knowledge of Directed's longstanding relationship with Hanhwa Korea and the OEMs from their day-to-day observation over six years. Allen Hartley acknowledged that by reason of his involvement in the joint venture with Directed, he knew that IAL was an important customer of Directed. 3421 Further, the Gridtraq parties were still aware at least as late as November 2016 that Hanhwa Korea was the manufacturer of the AV units sold by Directed. When Dylan Hartley saw Directed's logo on the Directed Specification, which he was provided by Oh, he assumed that the logo was there because Directed was involved in supplying AV units to IAL at the time. 3422 Further, Allen Hartley and Davidson were experienced businessmen. Given the Gridtraq parties' admitted knowledge and their extensive industry knowledge and experience, it is said that I should readily infer that that they knew that terms such as those alleged by Directed existed between Hanhwa Korea and Directed, whether in writing or by implication, as a consequence of the nature of the relationship and their long and extensive history of dealing. 3423 It is said that I should find that the Gridtraq parties were aware, or had a proper basis of awareness, that a commercial agreement between a long-term manufacturer and its customer, which they knew had been in place for at least 7 years and involved the manufacture of specifically designed expensive products for Directed's OEM customers in very substantial quantities, expressly or impliedly included the following terms. 3424 First, the manufacturer must use confidential information provided by its customer, about commercial opportunities which the customer wants to exploit with the manufacturer's assistance, solely for the purposes of the customer's business and must not use it for its own benefit to the exclusion of the customer. 3425 Second, the manufacturer will not use any drawings, designs, specifications, or other documents which it developed together with its customer to develop a new product for supply to its customer for the purposes of the design, development or manufacture of products for a third party. Allen Hartley and several of the Hanhwa parties' witnesses acknowledged that they understood this, at least for products made with tooling that the customer had paid for. 3426 Third, the manufacturer shall not manufacture for a third party a product the same as, or substantially the same as, a product which it had developed together with its customer. Now Allen Hartley and the Hanhwa parties seem to have only regarded this obligation as arising where the customer paid for the tooling used to manufacture the product. But Directed says that the limitation based on who paid for the tooling should be rejected. 3427 Fourth, the manufacturer will act in good faith and with honesty towards its customer. 3428 In general, Directed says that the Gridtraq parties should be treated as having knowledge or reasonably ought to have had knowledge that such terms existed in the long term supply arrangement that they knew had been in place since 2010, and which they knew was on foot between Hanhwa Korea and Directed in the relevant period from 2015 to 2018. 3429 And Directed says that at the least, the Gridtraq parties turned a blind eye and were recklessly indifferent to the likely contract terms and acted in a manner to induce breach by Hanhwa Korea of its contractual obligations to Directed. Such indifference can be equated with relevant knowledge and an intention to induce a breach of contract. At no time did the Gridtraq parties make any enquiry with Directed about constraints faced by Hanhwa Korea in its dealings with Directed. Directed says that such a failure to inquire can be properly presumed to be deliberate. A conscious decision not to inquire into the existence of a fact may be treated as equivalent to knowledge of that fact. 3430 Let me make the following points. 3431 First, the Gridtraq parties did not have knowledge of the Hanhwa Enterprise Agreement or the Hanwa Korea Agreement in the terms pleaded. 3432 Second, alternatively, if they had knowledge of some particular form of the Hanhwa Korea Agreement it was in relation to the usual confidential information terms at most. It was not knowledge of any exclusivity term of the type pleaded, which I have found did not exist. 3433 Third, there is no substance to Directed's case against the Gridtraq parties for inducing breach of contract. There was no relevant knowledge and more importantly no relevant intention. Further, as I have said, Directed's case concerning some of the implied terms said to have been breached is suspect to say the least. In my view, Directed's case against the Gridtraq parties for inducing breach of contract is spurious. 3434 Now as to the acts of inducement said to have been made by the Gridtraq parties, the case is put by Directed in three ways. 3435 The first inducement step is put as follows. By entering into the Heads of Agreement, the Gridtraq parties commenced their inducement of Hanhwa Korea to breach its supply agreement with Directed and to breach its confidentiality obligations and good faith obligations. The Gridtraq parties were offering the inducement of a new partnership for Hanhwa Korea to meet its telematics needs and consequently put it in a position where it could go into the market with the Gridtraq parties and without the need for telematics hardware, software and services provided by Directed. The telematics availability was an important ingredient of the proposed Hanhwa Korea offering to OEMs. 3436 The Heads of Agreement bound them to form a JV Vehicle to collaborate and look for new markets for telematics, screen hardware and head units and bring to market products that combined Hanhwa Korea's AV units and Gridtraq parties' telematics hardware, firmware and online back end portal software. That agreement effectively prevented the parties from entering onto any agreement with a third party that conflicted with that JV. 3437 It is said that this put Hanhwa Korea into conflict with its obligations under its exclusive supply, confidentiality and good faith agreement with Directed, about which it is said the Gridtraq parties should be found to have had constructive knowledge. It similarly deterred Hanhwa Korea from engaging in the development or supply of any AV units for Directed such as the DIR8000 that had telematics functionality, being a consequence intended by the Gridtraq parties. It also put the Gridtraq parties into conflict with their JV with Directed to seek to exploit telematics opportunities together. 3438 The second inducement step is put as follows. Following the end of the JV Vehicle Shareholders Agreement in March 2016, the Gridtraq parties continued to induce Hanhwa Korea to breach its contractual obligations to Directed in relation to confidence, exclusive supply and good faith to Directed by its conduct. This was said to have occurred in relation to the HAU8000, by the Gridtraq parties engaging with the Hanhwa parties in the project to supply the HAU8000 with telematics functionality provided by connectivity to its RA7000 telematics unit, being a project disclosed by Hanhwa Korea to Gridtraq in breach of confidence, and in relation to seeking to exploit the Mercedes Sprinter opportunity with Hanhwa. It is said that the Gridtraq parties knew or should have known that no use of the confidential information disclosed by Directed to Hanhwa Korea concerning the SuperDAVE opportunity or the Mercedes Sprinter opportunity could be made by Hanhwa Korea other than for Directed. 3439 The third inducement step is put as follows. On being advised by Lee in around November 2016 that Hanhwa Aus wanted to demonstrate to IAL in January 2017 the HAU8000 connected to the RA7000 telematics unit and providing telematics features and functionality, Allen Hartley advised Lee that a communications protocol would need to be developed. He knew that the Quantam Specification would not be able to be used. He knew that it would only connect an RS232 piece of hardware to another RS232 piece of hardware. So too did Dylan Hartley. So the Gridtraq parties knew that they needed the Hanhwa parties' versions of the Directed Specification. This was requested and provided. 3440 Dylan Hartley therefore requested from Hanhwa Korea and was provided by Hanhwa Korea on 16 November 2016 the Directed Specification. The Directed Specification was provided by Hanhwa Korea to the Gridtraq parties on 3 separate occasions over a 13 month period, being on 16 November 2016 and again on 31 March 2017 (Revision 0.15), and again on 19 December 2017 (Revision 0.1)). It was a confidential document of Directed. 3441 Hanhwa Korea supplied the Gridtraq parties with the Directed Specification which they then reproduced and used without Directed's authority in the period November 2016 to December 2017. The Gridtraq parties thereafter used the Directed Specification, without the authority of Directed, in the period of at least 5 months from November 2016 to connect the RA7000 telematics unit to an Isuzu AV unit. 3442 Directed says that by this third inducement step concerning the Directed Specification, the Gridtraq parties intended to, and did, cause breaches by Hanhwa Korea of its agreement with Directed. 3443 But I reject Directed's case concerning inducement. 3444 First, the Gridtraq parties did not have relevant knowledge of the Hanhwa Korea Agreement in the terms alleged by Directed. 3445 Second, the Gridtraq parties did not have the relevant intention to induce. 3446 Third, the Gridtraq parties did not engage in any of the three acts of inducement as is clear by the evidence and the facts that I have found as detailed elsewhere in these reasons. 3447 Let me deal with another topic concerning knowledge. Gridtraq parties' knowledge of Meneses' involvement in relevant conduct 3448 Directed says that it can at least be inferred that the Gridtraq parties knew about the following matters. 3449 It is said that they can be inferred to have known about the development of the SuperDAVE, which was always intended to have telematics functionality and to operate in conjunction with the Directed telematics unit and the Gridtraq platform, for supply by Directed to IAL. The SuperDAVE project commenced in August 2014 and continued thereafter with the assistance of Hanhwa Korea, and with the presence of Lee often at Directed's premises. Throughout that period, August 2014 to late 2015, the Gridtraq parties' representatives were working with Directed in the same premises. 3450 It is said that it would have been apparent to the Gridtraq parties from the communications and involvement of Lee and Meneses in the inspection and sub-leasing negotiations of the Brooklyn premises, that Meneses and Lee were "partners" in the business being set up in Australia by Hanhwa Korea. Therefore it is said that they knew that Meneses was directly involved and concerned in the business being set up by Hanhwa Korea in Australia. Further, at all times since at least June 2016, it is said that the Gridtraq parties knew that Meneses was involved in the relevant diversion conduct. 3451 It is said that the Gridtraq parties knew or ought to have known that neither the Hanhwa parties nor Meneses should have been working with the Gridtraq parties on projects in competition with Directed. This is particularly so as they knew that Meneses remained an employee of Directed. 3452 Yet, with this knowledge, and so Directed complains, from at least June 2016 the Gridtraq parties, the Hanhwa parties and Meneses worked together on a number of projects to develop and supply products in direct competition with Directed's products, including the SuperDAVE, when they knew Meneses remained an employee of Directed and Hanhwa Korea remained as Directed's supplier of AV units and accessories. 3453 And at best, so Directed complains, the Gridtraq parties shut their eyes to the obvious. 3454 Further, Directed says that in circumstances where both the Hanhwa parties and Gridtraq parties needed Meneses, the Gridtraq parties were motivated to look the other way to his obvious conflicts of interest or were otherwise recklessly indifferent. It is said that such reckless indifference is best demonstrated by the responses of Allen Hartley and Dylan Hartley under cross-examination to the fact that Meneses was acting in a conflict of interest. Allen Hartley said it was "none of my business". Dylan Hartley said "I don't really care". 3455 Further, Directed says that from no later than 8 December 2016, the Gridtraq parties knew that Hanhwa was "splitting away" from Directed, was to supply an AV unit (the SuperDAVE) to IAL and Hanhwa wanted Gridtraq to assist in the provision of telematics. 3456 It is said that the board briefing paper of that date headed "Quantam Telematics Hanhwa Opportunity" makes this clear. It said the following: … … 3457 Further, to the extent that aspects of the case on the Gridtraq parties' knowledge is circumstantial, Directed says that it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference. The evidence discharges Directed's evidentiary burden in relation to these circumstantial aspects, establishing a sufficient basis to establish knowledge or reckless disregard by the Gridtraq parties and conduct in aid, such as to satisfy the relevant tests for inducement of Meneses' and Hanhwa's breaches of contract, as well as participation in Meneses' breaches of fiduciary and statutory obligations to Directed. 3458 Directed contends that the Gridtraq parties knowingly participated in Meneses' breaches of fiduciary duty by choosing to take up and to implement the SuperDAVE opportunity with knowledge of the conduct which constituted those breaches of fiduciary duty in circumstances which would have indicated the dishonest and fraudulent nature of that conduct to an honest and reasonable person. 3459 Directed says that the relevant participation is the common pursuit of a mutual objective. Directed contends that the parties were co-dependent and knew this to be the case. Each had particular skills to enable pursuit of the SuperDAVE opportunity. The Gridtraq parties knew, based on having worked closely with Meneses for previous years, that Meneses had a close relationship with IAL capable of bringing the project to fruition. The Gridtraq parties further knew that the Hanhwa parties had the capability to manufacture the AV unit, which neither the Gridtraq parties nor Meneses had. A working sample of the HAU8000 for IAL with navigation and telematics functionality required a telematics unit and telematics expertise. The Gridtraq parties could assist with this, which neither the Hanhwa parties nor Meneses could do. This co-dependence did not necessitate that Meneses engage directly with the Gridtraq parties to pursue the SuperDAVE. However, it did evolve from a common understanding that the pursuit of the SuperDAVE opportunity would likely fail unless each was involved within their field of expertise. 3460 But I reject Directed's case. The Gridtraq parties did not have the relevant knowledge such as to make them knowing assisters or accessories concerning the SuperDAVE diversion conduct. Let me discuss in more detail the specific matters concerning the diversion of the SuperDAVE insofar as Directed says that it concerns the Gridtraq parties. Diversion of SuperDAVE 3461 So far as is relevant to the Gridtraq parties, Directed's case against them as to the SuperDAVE conduct concerns the development, design, testing, marketing, promotion, offering for supply, manufacture and/or supply of the RA7000 telematics unit for use in conjunction with the HAU8000 for IAL for the benefit of Hanhwa, Meneses and Mills to the exclusion of Directed. 3462 Directed alleges that by participating in the SuperDAVE conduct, the Gridtraq parties engaged in accessorial and inducement conduct with respect to Meneses, Mills and the Hanhwa parties. 3463 Directed alleges that but for the Gridtraq parties' involvement in the SuperDAVE conduct, the HAU8000 and the LM Series AV units could not have been offered as being AV units capable of being operated with and represented as having been tested in operation with telematics units to IAL, Fuso, Mercedes and UD as they were, and these OEMs would not have purchased the relevant AV units. 3464 Further, Directed says that whether or not the OEMs ultimately were supplied with the Gridtraq parties' telematics offering is irrelevant. It was represented to the OEMs by Hanhwa Aus that the HAU8000 and the LM Series AV units could be operated with and had been tested in operation with telematics units. Directed says that for IAL, Fuso, Mercedes and UD this was a relevant matter in their decision to purchase the Hanhwa AV units from Hanhwa Aus on the basis of actual functionality. Directed also says that one can presume that if there was no telematics requirement envisaged, then the Gridtraq parties would not have undertaken the work they did to establish connectivity and to develop a proprietary communications protocol to enable such connectivity. 3465 I should say at this point that Directed's case on each of these aspects lacked substance against the Gridtraq parties. 3466 Let me first deal with one element of Directed's case concerning the Gridtraq parties being that of telematics functionality. 3467 According to Directed, as is apparent from Dylan Hartley's request for and Oh's provision of the Directed Specification in mid November 2016, Gridtraq was engaged with its JV partner Hanhwa Aus to provide the telematics integration. 3468 Now in December 2016, Lee told Hartley of his agreement with IAL to supply the DIR8000/HAU8000 direct, that it was splitting away from Directed and that it was counting on Gridtraq to provide the telematics. 3469 Gridtraq concedes that this proposal was put to its Board but says that it rejected the proposal. It also says that although it did attempt to integrate its telematics unit, which I have described as the CPU, with the HAU8000, it was unsuccessful in doing so. 3470 Now Directed says that this explanation should be rejected. It says that the documentary evidence makes clear that Gridtraq continued working on the telematics integration between the HAU8000 and the RA7000 telematics unit through to September 2017, culminating in a presentation by Gridtraq to IAL of a proposal to supply telematics units and services to IAL which was to be fully integrated with the Isuzu Command Centre Head Unit. It has referred to the following matters, putting to one side their accuracy for the moment. 3471 First, there was the request from the Gridtraq parties for firmware for the "new Isuzu head unit" on 7 February 2017. 3472 Second, there was Gridtraq's request of Oh in March 2017 for two debugging boards to be provided by Hanhwa to test the CPU (Quantam telematics unit or RA7000 telematics unit), which used the RS232 protocol, with the "DIR6200/HAU8000" which used the RS485 protocol. She also provided to Gridtraq a copy of the Directed Specification, the HAU8000 telematics program and user manual, RS485 communication cable and RS485 debugging board so that the RA7000 telematics unit could be checked to communicate with the DIR6200 and the HAU8000. 3473 Third, there was Hanhwa's engineers' report on the work they undertook connecting the RA7000 telematics unit to an Isuzu truck at the Brooklyn premises in the period 28 March to 31 March 2017, which Shin confirmed involved connecting the RA7000 telematics unit to the HAU8000 in an Isuzu truck. 3474 Fourth, there was the email from Oh to Lee about what should be displayed on the HAU8000 screen when connected to the RA7000 telematics unit. 3475 Fifth, there were documents revealing continued work in August 2017 undertaken by Gridtraq and Hanhwa in relation to the integration of the HAU8000 and the RA7000 telematics unit. 3476 Sixth, Directed's documents relating to connection of its telematics units to Isuzu vehicles were seized from the Gridtraq part of the Brooklyn premises which suggests they were being used for the purposes of connecting Gridtraq's telematics units to the HAU8000 in an Isuzu truck. 3477 But I would reject these points. Connectivity was not established. Further, there is some confusion in Directed's case as to what was sought to be connected with what. 3478 Let me deal with some further aspects of Directed's case. 3479 It is said that Meneses' provision and the Hanhwa parties' and the Gridtraq parties' exploitation of the SuperDAVE opportunity to the exclusion of Directed was a misuse of Directed confidential information and a knowing inducement by the Gridtraq parties of breach by Meneses of his contractual, fiduciary and statutory obligations to Directed. 3480 It is said that the Gridtraq parties knowingly induced Hanhwa Korea to breach its contractual obligations to Directed with respect to the misuse of the confidence of Directed. 3481 Further, it is said that the Gridtraq parties, without the authority of Directed, reproduced and used the Directed Specification to do so, being confidential information and a copyright work owned by Directed. And it is said that the Gridtraq parties, without the authority of Directed, reproduced and used the CAN information, vehicle parameters and data collect proposals, being confidential information and copyright works owned or jointly owned by Directed. 3482 In relation to the Gridtraq parties' knowledge of Meneses' and Mills' involvement in the SuperDAVE conduct, Directed says the following. 3483 First, they had knowledge of Meneses' and Mills' employment by Directed, their roles and their obligations to Directed. 3484 Second, they had knowledge of Meneses' and Mills' relationships and their history of dealing with each of Hanhwa Korea and Directed's OEM customers. 3485 Third, they had knowledge of Meneses' involvement with Lee and Hanhwa Korea as "partners" in the business being set up in Australia by Hanhwa trading as Hanhwa Aus. 3486 Fourth, they had knowledge that Hanhwa Aus was actively engaged in direct competition with Directed to supply OEMs with AV units, accessories and telematics units and telematics services. 3487 Fifth, they had knowledge that Hanhwa Aus was actively engaged in seeking to supply the SuperDAVE, accessories and telematics units and telematics services to IAL in direct competition with Directed's products currently sold to IAL. 3488 Sixth, they had knowledge that the SuperDAVE and its accessories were products which Directed had worked on developing with Hanhwa Korea and IAL for at least 18 months, prior to the Hanhwa parties commencing to seek to supply it to IAL to the exclusion of Directed. 3489 But in my view, Directed's case has not been made out. 3490 The allegations against the Gridtraq parties with respect to the SuperDAVE conduct must fail. I agree with the Gridtraq parties that at its highest, the evidence establishes the following. 3491 First, in October 2016, Allen Hartley was informed by Lee that Hanhwa intended to supply a radio unit to IAL, which Directed did not want to supply, and that there may have been an opportunity for the CPU to be supplied in conjunction with that unit. 3492 Second, the board of Quantam did not support any further collaboration between Quantam and Hanhwa. 3493 Third, the evidence does not support an allegation that the Gridtraq parties were jointly involved in the marketing, presentation or sale of any telematics units or services to IAL with Hanhwa. 3494 The reality is that the Gridtraq parties identified a possible opportunity to generate work from Hanhwa, if they could establish interconnectivity with Hanhwa's AV units. But that opportunity never went anywhere. 3495 Fourth, the evidence does not support an allegation that the Gridtraq parties induced Hanhwa to breach the terms of any contract or arrangement with Directed. 3496 In the circumstances, the suggestion that the Gridtraq parties somehow assisted Hanhwa to satisfy itself and be able to demonstrate or at least represent to IAL that the HAU8000 was telematics capable is not made good. 3497 Further, the Gridtraq parties never overcame the hardware incompatibility issues between RS232 and RS485. Further, the fact that the HAU8000 had an RS485 chip which, with further work, could have been used to connect a compatible telematics unit (or another module or device) does not mean that the unit did, in fact, have that functionality. 3498 Further, Directed's allegation that the Directed Specification was misused by the Gridtraq parties in conduct in relation to the SuperDAVE opportunity is unsustainable. 3499 Further, there is no evidence that the Gridtraq parties overcame the hardware incompatibility issues between the RS232 and the RS485. 3500 Further, the internal correspondence produced under subpoena by IAL indicates that IAL were aware that Hanhwa had no plans to develop a telematics solution for IAL. Further, the only evidence of the Gridtraq parties attempting to obtain work from IAL is the September 2017 IAL presentation which was made independently of Hanhwa. And that attempt was unsuccessful. 3501 Further, the Gridtraq parties did not have any knowledge of the terms of any contract or arrangement between Hanhwa and Directed in relation to the supply of AV units. 3502 Further, the evidence does not support any allegation that the Gridtraq parties were aware of Meneses' and/or Mills' substantial involvement in any dealings with IAL on behalf of Hanhwa. 3503 Further, even if Directed could establish its claims against Meneses, Mills and the Hanhwa parties, its claims against the Gridtraq parties fail. There is no evidence that by developing, marketing, promoting, offering for supply and/or supplying the safety screen or the CPU, the Gridtraq parties sought to induce Hanhwa Korea to breach the terms of any contract or arrangement with Directed. 3504 Further, there is no evidence that Directed suffered any loss as a consequence of the Gridtraq parties' conduct with respect to the safety screen and/or the CPU. The safety screen is unlike any AV unit offered by Directed, and has never been sold commercially. The CPU has only been sold in very limited quantities in Australia, and not to any OEM customers in competition with Directed. 3505 Let me at this point say something about various topics. One of Directed's main themes 3506 One of Directed's main themes concerns a presentation made by the Gridtraq parties to IAL. Let me deal with this at the outset. 3507 On 22 April 2017, Dylan Hartley received an email from a former customer of the JV Vehicle, seeking assistance with difficulties he was having with a telematics system. As the former customer drove an Isuzu vehicle, Hartley forwarded that email to Humphries of IAL, and also suggested that they catch up for lunch. 3508 On 24 May 2017, Allen Hartley, Davidson and Dylan Hartley had dinner with Cooper, Humphries and McLean of IAL at a restaurant in Brisbane. During that dinner, they discussed whether there were any opportunities for Gridtraq to supply its telematics products and services to IAL. 3509 In September 2017, the Gridtraq parties were invited by Cooper to present on their telematics solution. I would note that the Hanhwa parties had nothing to do with how this invitation came about. On 23 September 2017, Dylan Hartley prepared PowerPoint slides for that presentation. 3510 On 25 September 2017, Allen Hartley, Davidson and Dylan Hartley delivered the presentation to Cooper, Humphries and McLean in Port Melbourne. Hanhwa was not involved in producing or delivering the presentation. 3511 As is readily apparent, the presentation delivered to IAL was prospective in nature. By that stage, the Gridtraq parties had not undertaken any development to establish a connection between the CPU and an Isuzu head unit. As Dylan Hartley observed, it was a prospective presentation utilising their existing hardware as a base. But he said that if IAL wanted to go ahead, there was likely to be substantial development which needed to be completed. Hartley went on to explain the sales process in the following manner: I think you've got to sort of understand the sales process, particularly with OEMs. Every pitch, there is an element of it that is prospective. It's impossible to engage a vehicle manufacturer and say, "This is the product. You have to take it. You can't make any changes." It's just – that's – particularly within the vehicle or automotive space. When you climb into your passenger vehicle, you want to know that everything attached to that vehicle is from that manufacturer. So there is always an element of sort of development or configuration that has to happen. So, you know, every engagement, you know, is prospective. 3512 The Gridtraq parties were confident that they would be able to provide a telematics solution to IAL, but that reflected confidence in their engineering team to be able to deliver the product required by the customer. It was not a reflection of the fact that a connection had already been established by that time. Dylan Hartley summed up the presentation as follows: I think the intention of the document is to sit with the customer and to help sell him a vision. A vision that takes their business to a new level, provides them with the products and services that are superior to anything in the market and obviously to achieve that there would be timeframes to deliver that product. And again with the confidence that I have in the technical team, you know, I know that that's not an issue. And again there is – it is a two-way street. The manufacturer might say, "Well, you know, we actually don't need all these different items, remove them". And then they would be removed. So it is very much a prospective first interaction. 3513 Below is a slide taken from the September 2017 Gridtraq presentation to IAL titled "Reimagine Telematics and Accelerate Your IoT Journey" which references the RS232 protocol: 3514 Now Directed asserts that on page 46 Gridtraq represented that it had developed a specification for communication between the RA7000 telematics unit so it could connect and operate in conjunction with the HAU8000. But I do not agree with Directed. 3515 First, the "Isuzu Command Centre Head Unit" referred to in the presentation to IAL (pp 38, 46 and 47) is not identified as the HAU8000. And that expression could refer to any Isuzu-fitted head unit. Accordingly, I do not accept that the head unit being referred to in the IAL presentation was the HAU8000. It is not so identified. Indeed, as the Gridtraq parties submitted, the HAU8000, in contrast to the hypothetical head unit referred to in the presentation, did not have a "Driver Behaviour Indicator". 3516 Second, I agree with the Gridtraq parties that Gridtraq was presenting what it may have been able to do with further development if IAL was interested. In other words the presentation was little more than a marketing proposal. 3517 Further, Thibaud's evidence was not at odds with any of the other evidence in the proceeding. This IAL presentation was prospective. And Dylan Hartley's evidence that the Gridtraq parties' engineers could overcome the hardware protocol issues does not cut across Thibaud's evidence that they did not. Thibaud was the engineer who could have overcome those issues. His evidence is that he was never asked to do it. 3518 The following cross-examination of Girgis is relevant: RYAN SC: … Now, Mr Girgis, I want to direct you to another document you have dealt with in your affidavit. It's the Gridtraq presentation to Isuzu in September 2017. You recall that, don't you? GIRGIS: Yes, I do. … Q: Now, I wonder if we can go forward, please, to page _0021. Thank you. Now, Mr Girgis, that's the – that item there is what we've been calling the CPU or the RA7000 telematics unit, isn't it? A: Yes. It appears to be, yes. Q: And we see certain points made about it. It's got water resistant housing, it's got multiple mounting options, three by CANBUS controllers, etcetera. The next dot point notes that it operates by RS-232 serial communication transmission of data. You see that? A: Yes. Q: Now, I think in your affidavit you mentioned that you couldn't tell just by looking at the wiring of the CPU that it utilised RS-232 communication protocol. Is that correct? A: It's correct that in the observations of the three RA7000 AV units that were presented that I inspected – apologies. I don't recall the date – but that I inspected, I wasn't able to identify which of those wires in the wire loom related to either UR or RS-232. Q: Yes. But you then came across this document and you were happy to say that the CPU deployed RS-232 serial communication; correct? A: This document, among others. There was other documents that I reviewed that identified it as RS-232. Q: Yes. And one can't tell simply looking at the unit itself whether it deploys RS-232 or some other communication protocol? A: That's correct. You can't tell by just looking at the physical cables whether it's RS-232 or something else. It could be, for example, RS-422. Q: Yes? A: So looking at the unit it's – and noting that there were no tags to identify it, it wasn't possible. … Q: Now, can we go forward, please, to page number _0038. I've got heading there Regulatory Telematics and Accessories and a series of dot points . Can I direct your attention to the third-last dot point, Mr Girgis, Isuzu Command Centre Head Unit Integration. Now, that Isuzu command centre head unit is not expressly identified as the HAU8000, is it? A: It doesn't state that in this document, no. I think there has been other references to the Isuzu command centre head unit and what that is, but in this document no. Q: No. And taking the expression "Isuzu command centre head unit", that could be a generic expression conferring or identifying any AV unit that might be used by Isuzu, couldn't it? A: Sorry. Bear with me a moment. I'm just thinking through …some of the points I've made. I think the answer to that is on this slide, yes, that it would likely refer to any Isuzu-fitted head unit, you know, whatever AV unit is in there. I note the contents of this slide and I do recall when I was reviewing it that this slide refers to quite a number of generic statements, such as third party system integrators, etcetera. So in that sense this slide appears to be a generic series of statements. 3519 Third, on 3 October 2017, Dylan Hartley received an email from Cooper of IAL, thanking him for the presentation, but declining the proposition that had been put forward by the Gridtraq parties. 3520 In summary, Directed's central theme on this aspect of the case concerning the SuperDAVE matter fails. And nor did the Gridtraq parties' conduct involve the diversion of any other opportunity either. 3521 Let me at this point say something further concerning the CPU and the safety screen. The CPU and the safety screen 3522 Let me begin by saying something about the CPU. 3523 In April 2013, Quantam began development of a new telematics unit, which was a generic unit that was not targeted to any particular customer. Development of the initial version of the unit was abandoned in December 2013. 3524 In June 2014, Quantam began development of a second version of the unit, which was larger and comprised more features. It became known at Quantam as the CPU. 3525 The CPU uses hardware layouts, firmware and communication protocols developed by Quantam. Hanhwa was not involved in the development of the CPU. Meneses and Mills were not involved in the development of the CPU. Siolis and Tselepis were both aware of Quantam and its development of the CPU. 3526 The CPU is designed to connect to external products, including AV units, via a communication protocol referred to as RS232. Now the Directed and Hanhwa AV units the subject of this proceeding operate via a different communication protocol, referred to as RS485. 3527 The CPU was not designed to and cannot connect to external products via the RS485 protocol. And Quantam has never designed, developed, manufactured or sold a telematics unit incorporating an RS485 chip. 3528 Now by the use of the term "RA7000 telematics unit", Directed has attempted to infer that the development, marketing, promotion, offering for supply and/or supply of a telematics unit designed to operate in conjunction with the RA7000 AV unit and/or capable of operating with other AV units somehow formed a part of the safety screen project between Quantam and Hanhwa. But this is problematic. Although the CPU is capable of operating with the safety screen, the unit was not initially designed exclusively for that particular purpose. 3529 First, it is not in dispute that the development of the CPU started before the commencement of the safety screen project. 3530 Second, Thibaud gave unchallenged evidence that Hanhwa was not involved in the development of the CPU. 3531 Third, to the extent that the CPU was capable of operating in conjunction with units other than the safety screen, those units would have had to operate on the same hardware protocol, which for the CPU was RS232. 3532 Fourth, all of the radios developed, marketed, promoted or supplied by Hanhwa to OEMs in Australia operated using the RS485 hardware protocol. 3533 I agree with the Gridtraq parties that in the circumstances, it is implausible to suggest that the Gridtraq parties' development of the CPU was done for the purpose of pursuing opportunities with Hanhwa to supply a telematics unit for use in conjunction with Hanhwa's radio units. If the Gridtraq parties had been involved in a joint venture project with Hanhwa to develop a telematics unit to supply to OEMs in Australia, then it is likely that they would have designed a unit which was based on the same hardware protocol as the Hanhwa radio units, rather than an incompatible one. 3534 Quantam has manufactured fewer than 600 CPU units. Sales of the CPU represent a very small fraction of Quantam's overall sales. Quantam has never supplied any units directly to any end customer in Australia. 3535 Further, the assertion by Directed that the only point of testing the CPU in an Isuzu truck which had been purchased by Hanhwa was to supply the CPU to IAL or aftermarket purchasers of that model truck is not supported by the evidence. Of course, testing the CPU in any truck would be advantageous for all and any future supplies of the CPU. 3536 Dylan Hartley and Davidson did not know until about March 2017 that the CPU and the Hanhwa DAVE used different hardware communication protocols. Oh's evidence does not demonstrate to the contrary. It is clear from Girgis' evidence that one cannot simply by looking at the wiring of a telematics unit or an AV unit tell what hardware protocol it uses. So Dylan Hartley and Davidson, who were not engineers, could not easily have found out that the CPU and the Hanhwa AV unit used different protocols during their experiments in early 2017. They were ignorant of the true position until Oh explained it to them in March 2017. 3537 Further, Directed criticises Davidson, inter alia, for not addressing in his evidence the work he undertook with Dylan Hartley in the testing of the CPU with an Isuzu radio. He did not need to give any such evidence. Detailed evidence about that work was given by Dylan Hartley. There was no need for Davidson to duplicate that evidence. Davidson gave evidence about other matters and he was cross-examined for close to a day. Directed was entitled to ask Davidson questions about the nature of the work he undertook with Dylan Hartley, if they desired to do so. 3538 Further, contrary to Directed's submission, the August 2017 notes referred to refer to a meeting concerned with the interconnection between the safety screen and the CPU, as Oh said in her evidence. 3539 It is clear that the note concerning the HAU8000 was separate to the matters discussed in the meeting and that is why that note was to the left hand side of the page in a "cloud" so as to separate it from the substance of the meeting. It should be recalled that Hanhwa was working on the RA7000 project and the HAU8000 project (and other projects) simultaneously. This is visually demonstrated in the relevant development plan. 3540 Now it appears that around 23 August 2017 a request was made for a sample of the HAU8000. It is not clear exactly why, since none of the Gridtraq witnesses were cross-examined on the document referred to, and the substance of the document in fact concerns the safety screen. It may have been that Keightley perceived that some assistance may be gained by looking at the way features that might be incorporated in the safety screen had been incorporated in the HAU8000. There is no basis to speculate that the purpose of obtaining the HAU8000 unit was to effect a connection between it and the CPU. Further, one thing to be noted about this document is that whilst a sample HAU8000 may have been requested, Oh's evidence was that she did not provide it. 3541 Further, the email chain referred to by Directed demonstrates no more than that the Gridtraq parties supplied an updated protocol to Hanhwa so that Hanhwa could implement some new features into the safety screen and someone, probably at Hanhwa, suggested it would then be a good idea to include those new features into the HAU8000. What would then be required would be for Hanhwa and its software engineers to write the appropriate firmware for implementation of those features in the RA7000 consistent with the software protocol provided to them, and in the HAU8000 consistent with some unidentified protocol, if Hanhwa felt it was desirable. 3542 It seems that Lee may have thought that was not desirable, but this exchange shows that the Gridtraq parties' main focus was the safety screen and that any future opportunities involving the HAU8000 would depend upon work yet to be done. 3543 Directed submits that the fact the Gridtraq parties had technicians available to solve the connection problem only reinforces that the Gridtraq parties' evidence of their earlier determination of the impossibility of the CPU connecting to the HAU8000 is false. There is no doubt that the Gridtraq parties did have the technical ability to solve this issue. The person with the relevant technical expertise was Thibaud. Thibaud gave evidence in the proceeding to the effect that he had never been involved in the design or development of any products on behalf of Quantam for OEMs in Australia. Directed did not cross-examine him. 3544 Let me now say something about the safety screen. 3545 Now in March 2015, the Gridtraq parties commenced working with Hanhwa on a joint project to develop a screen with plastic surroundings, being the safety screen, which unit was to be designed to have telematics and tyre pressure monitoring functionality. Further, between about March 2016 and March 2018, the safety screen was referred to as the "RA7000". 3546 The safety screen is a standalone unit that can operate independently of a telematics unit. It is capable of connecting with a telematics unit with an appropriate serial port. Like the CPU, the safety screen utilises the RS232 hardware protocol. 3547 Hanhwa has been responsible for all technical aspects of the safety screen. The Gridtraq parties have been involved in determining the specifications for the product, and the development of a protocol interface between the safety screen and the Gridtraq parties' telematics unit. 3548 Now Meneses and Mills were not involved in the safety screen project. Throughout that project, the primary contacts at Hanhwa for the safety screen project were Lee and Oh. 3549 The safety screen was conceived in response to a potential requirement for one of Quantam's US-based customers. 3550 From around 2015, the Gridtraq parties have made presentations regarding the safety screen to several companies, including Hirschmann Automotive in 2015, Toyota Japan in 2016, IAL, City Holdings and Australia Post in 2017 and various US-organisations including Hertz Car Rental from 2016. 3551 Now Directed has alleged that the Hanhwa parties and the Gridtraq parties marketed the RA7000 to potential customers in Australia, including IAL, City Holdings and Australia Post. But Hanhwa was not involved in these presentations. 3552 Let me now turn to the question of connectivity and Directed's case. 3553 I should say at the outset that part of Directed's case was to assert that the RA7000 telematics unit or CPU was proposed to be supplied to IAL for integration with the HAU8000, the HAU8100, the HAU8200/LM18H and the HAU6161 units. But none of this has been convincingly established, let alone in a fashion that establishes culpability on the part of the Gridtraq parties. Gridtraq parties' telematics unit connectivity with HAU8000/other Hanhwa AV units 3554 Let me here say something further concerning Directed's case on the question of connectivity. 3555 Directed's witnesses gave evidence that the issue of hardware incompatibility could be overcome by the use of suitable adaptors to translate communications between RS232 and RS485 hardware devices. 3556 Now Directed sought but was denied the opportunity to test samples of the CPU or to inspect the HAU8000. The Gridtraq parties refused to permit any testing of the CPU beyond a mere supervised inspection, by Girgis and K&L Gates lawyers only, connected to the RA7000 AV unit on 12 April 2019. This inspection, required to be conducted under the limited conditions set out in my earlier orders, did not permit Girgis or any employee or director of Directed to undertake any testing. Further, the Hanhwa parties refused to permit any inspection or testing of the HAU8000. Directed's application was resisted by the Hanhwa parties, a resistance which was upheld by me. 3557 So, I agree with Directed that due to the refusal by the Gridtraq parties and the Hanhwa parties to permit Directed to test the CPU (the RA7000 AV unit) or to inspect or test the HAU8000, there cannot be any justified criticism of Directed's failure to undertake testing of those units. 3558 Let me elaborate further on Directed's case based on aspects of Girgis' analysis. 3559 In November 2016, Dylan Hartley and Davidson were seeking to get the RA7000 telematics unit to communicate with the RA7000 AV unit. In order to assist in seeking to achieve that aim, he and Davidson conducted tests connecting the RA7000 telematics unit to a DIR6200 AV unit. He managed to get some connectivity but selecting the telematics icon on the AV unit did not click through anywhere. 3560 The fact that the telematics icon was visible on the AV unit and the fact that Hartley expected that selecting the telematics icon would click through to somewhere confirms that the devices were connected. Accordingly, although he does not explain how, Hartley managed to connect a device which operates via RS232, being the RA7000 telematics unit to a device which operates via RS485, being the DIR6200. 3561 This indicated to Girgis that Hartley was using some form of adaptor or connector that converted RS232 to RS485. 3562 Further, Girgis gave evidence that he was provided with an English translation of Oh's note which he says confirms that the Gridtraq parties and the Hanhwa parties were attempting to connect the HAU8000 to the RA7000 telematics unit. But frankly his evidence was speculation and hardly true expert evidence. I have dealt with Oh's note elsewhere. 3563 Now Dylan Hartley gave evidence that in the period November 2016 to March 2017 Gridtraq undertook work to seek to achieve connectivity between an Isuzu AV unit and RA7000 telematics unit. Further, Hartley's evidence is that in the period November 2016 to May 2017, the Gridtraq parties on two separate occasions obtained copies of the Directed Specification and used it to undertake some testing, which he asserts was in order to seek to obtain connectivity between the RA7000 AV unit and the RA7000 telematics unit. 3564 In August 2017, Hanhwa and Gridtraq were communicating in relation to telematics features that they wanted included in the RA7000 AV unit. On 29 August 2017, Oh sent an email to Lee noting that they also wanted these features applied to Hanhwa's new projects, including the HAU8000. 3565 Further, in September 2017, Gridtraq made a presentation and proposal to IAL to supply a telematics unit and telematics services to IAL. 3566 Now Girgis made the following comments regarding his presentation. 3567 First, there is a reference to "Isuzu Command Centre Head Unit Integration" which he assumed was a reference to the HAU8000, which was the head unit developed by Hanhwa for supply to IAL which IAL had agreed to purchase for its N and F Series trucks and for imminent supply and installation. 3568 Second, there is a reference to "driver operating habits" which is a telematics feature that would require drivers to identify themselves, usually by the driver entering a unique driver ID via an AV unit. The GUI screenshots for the HAU8000 show a driver identification login screen. 3569 Third, part of the presentation is headed "Isuzu Command Centre Head Unit Integration" and lists a range of telematics features that depend upon interaction with an AV unit. 3570 Fourth, the reference to "GRIDTRAQ Developed Proprietary Protocol" suggests that Gridtraq had developed its own specification for communication between its telematics unit and a third party AV unit. A consequence of having developed a proprietary protocol is that any third party AV unit which interfaced with the telematics unit would need to use that same protocol and thereby require collaboration between Gridtraq and the AV unit manufacturer. 3571 Fifth, there is a reference to Gridtraq having designed a "hardware communication module for screen integration" which suggests that a separate hardware module was used to interface between the telematics unit and an AV unit. Such a separate communication module could be used to adapt communications output from the telematics unit via RS232 to a third party device with a RS485 input. 3572 Sixth, there is a reference to a "Driver Behaviour Indicator" feature which involves a visual display integrated into the GUI of an AV unit which provides with a range of alerts and warnings. This feature would rely on data being transmitted from the telematics unit to the AV unit. 3573 Seventh, given that by that date IAL had agreed to install the HAU8000 in its forthcoming trucks, it would appear that either Gridtraq or Hanhwa had undertaken work and had satisfied themselves that whatever telematics unit Gridtraq was able to supply was capable of functioning with the HAU8000. 3574 Further, Girgis also addressed Thibaud's evidence and disputed his evidence concerning adaptors for the following reasons. 3575 As to cost, Girgis located a suitable adaptor on the internet at a price of USD 8.68. This is a compact RS485 to RS232 bi-directional converter. This adaptor is suitable for the purpose. The cost of this adaptor if sourced in large quantities would be less. 3576 As to exposure to water, dust and heat, the adaptors and telematics hardware are connected and operate behind the dash of the vehicle. This is the same environment that a person sits in when they are in the vehicle. Therefore there is no water exposure, limited dust exposure and not severe temperatures. In any event a very low cost case or heat shrink wrap could be purchased to prevent any dust or water ingress. 3577 As to exposure to shock or vibration, the case referred to could be secured in an appropriate position behind the dash which would minimise any risk of shock or vibration causing the connection to come loose. 3578 As to the supply voltage, both the voltage and power consumption would not be an issue as the adaptor Girgis identified is specified to operate within the voltage range being 3 volts to 25 volts provided by the RS232 connected device and is designed to power such devices. 3579 And as to compliance with automotive standard ISO16750-2, the adaptor Girgis identified does not need to connect directly to the vehicle's power supply and therefore does not need to comply with automotive standard ISO16750-2. 3580 Now Thibaud is the engineering director of Quantam Telematics and based in New Zealand. He was not required for cross-examination. Directed made the following points. 3581 Thibaud apparently is responsible for designing and coordinating the manufacture of all products developed and sold by Quantam. Thibaud was responsible for the hardware design of the CPU, the design of which commenced in 2014. The CPU was designed to connect to an external product via RS232. 3582 He gave only general evidence about the process in which he asserted that the JV Vehicle developed telematics solutions for OEMs in the period between 2010 and 2016. That did not concern the telematics unit manufactured by STI which was sold by Directed to the OEMs. 3583 He had no involvement in the JV Vehicle work undertaken by Dylan Hartley and Davidson in the period November 2016 to March 2017 which was said to have involved using the Directed Specification. He had no involvement in the work said to be undertaken connecting the CPU to the HAU8000 in a truck at the Brooklyn premises in around March 2017. He was not involved in the meetings between representatives of the Gridtraq parties and the Hanhwa parties at the Brooklyn premises concerning the connection of the CPU to the HAU8000 in the period March to August 2017. 3584 Further, he was not copied into any of the three emails by which the Directed Specification was provided by the Hanhwa parties to the Gridtraq parties. He was also not copied into any of the three emails sent by Dylan Hartley to Allen Hartley and Davidson by which he provided them with the Directed/JV Vehicle CAN information and vehicle parameters required for developing the Gridtraq parties' offering to the OEMs. 3585 Thibaud also had no disclosed involvement in the events relevant to the claims in this proceeding, presumably as no new piece of hardware was required to be developed for this work given that the CPU was already developed. The issue that required work was connection of the RA7000 telematics unit/CPU to the HAU8000, and obtaining the necessary CAN information and vehicle parameters for developing the offering to the OEMs, in which Thibaud did not disclose any involvement. 3586 Further, Directed says that Thibaud's evidence as to why the use of an adaptor would be inappropriate in the context of an automotive application was contradicted by the evidence of Girgis, Vardon, Andrea and Tselepis. 3587 Thibaud's evidence in that regard was also contradicted by the oral evidence of Dylan Hartley. Thibaud's evidence was hypothetical and failed to address the actual conduct of Dylan Hartley, Davidson and others who worked with them. 3588 Further, there was no expert or independent evidence from any witness called by the Gridtraq parties or the Hanhwa parties that the HAU8000 or any of the relevant subsequent AV units manufactured by Hanhwa did not in fact have the alleged telematics capability. 3589 Now I would reject Directed's arguments. 3590 Directed asserts that the Gridtraq parties established connectivity between the CPU and Hanhwa's AV units. This is put forward as a significant foundation for Directed's claims against the Hanhwa parties and the Gridtraq parties regarding the existence of in essence a conspiracy to establish a business to compete with Directed in the Australian market in relation to the supply of AV units and telematics units to OEMs. 3591 But I agree with the Gridtraq parties that Directed's case in relation to the establishment of a connection between Hanhwa's AV units and the CPU proceeds on a misunderstanding of the differences between RS232 and RS485 hardware protocols, and the fact that those differences render them incompatible from a hardware perspective. 3592 First, it is clear that RS232 and RS485 are different hardware protocols. They are incompatible. 3593 Second, some of the usual ways to overcome hardware incompatibility are by using a hardware adaptor or by redesigning the device to include a compatible chip. 3594 Third, the Gridtraq parties have never designed, developed or manufactured any telematics units which utilised the RS485 hardware protocol. 3595 Fourth, Directed in its evidence attempted to overcome the issue of hardware incompatibility by suggesting it would have been possible to use an adaptor to translate communications between RS232 and RS485. But the evidence of Thibaud, who was not cross-examined, set out a number of reasons why the use of an adaptor would be inappropriate in the context of an automotive application, as it ignored key design considerations such as feasibility, reliability, environmental and power requirements, as well as cost. 3596 Indeed, the cross-examination of Vardon and Girgis underscored the flawed nature of the assumptions they made regarding the suitability of available adaptors. 3597 Further, Vardon agreed that the passively powered RS232 to RS485 converters he identified in his affidavit, the use of which would avoid the need for compliance with automotive standard ISO160750-2, and their suitability for use proceeded on an untested assumption that the CPU was capable of supplying enough power to such a converter without requiring an external power source. 3598 Vardon conceded that when giving his evidence that the use of an RS232 to RS485 converter would have no observable effect on the current draw, he did not consider the effect of the current draw from the vehicle's battery whilst the vehicle was not operational. 3599 Fifth, in any event there is no evidence that the Gridtraq parties used an adaptor to establish a connection between the CPU (an RS232 unit) and any of the Hanhwa radio units (all of which operate using RS485). 3600 Sixth, at one point Directed's case appeared to proceed on an alternative basis to the effect that the hardware incompatibility issues that existed between RS232 and RS485 could have been overcome by the use of the Directed Specification. 3601 But the Directed Specification was directed at defining the software protocol for use between an AV unit and a telematics module. Clearly, a software protocol cannot be used to overcome the hardware incompatibility issues which arose between the RS232 and RS485. Directed impermissibly blended two concepts. Thibaud explained that the RS232 operated on a different principle, hardware and voltage, to the RS485. He explained that the RS232 and RS485 are not compatible, and cannot communicate directly with each other. He explained that for electronic devices to exchange information over a wired connection, they should have a software protocol and a hardware protocol. Further, he made clear that because of the incompatibility problems between hardware interface layers, it would have been obvious to a person skilled in the art of electronic hardware design to use the relevant hardware protocol for the intended system it was to be connected to. 3602 Indeed the distinction between hardware protocols and software protocols was not in dispute. Girgis gave the following written evidence: In paragraph 2 of the email, Dylan Hartley asked for the Isuzu specification for the DIR6200 (Directed Specification) so as to be able to integrate with a telematics unit. The specification outlines the commands and codes used by the DIR6200 AV unit and the DIR6200 telematics to communicate with each other. The Directed Specification differs from the hardware communications protocol (ie RS 232 vs RS 485) in that this is the application or software specification, ie the software commands that are being transmitted via the hardware… 3603 So, Directed accepted that the Gridtraq parties' telematics module was incompatible with the Hanhwa radio units from a hardware perspective. But Directed has then failed to address the question of how the Gridtraq parties overcame those hardware incompatibility issues to establish a connection between the units. 3604 The Gridtraq parties put their case by posing the question: what use was the Directed Specification to the Gridtraq parties, in circumstances where it was based on an incompatible hardware protocol? The Gridtraq parties' evidence was that the Directed Specification was of no use because it concerned the RS485. In my view the Gridtraq parties did not substantively use the Directed Specification in the manner asserted by Directed. 3605 Further, Directed asserted that if the RA7000 telematics unit used RS232, given the availability of adaptors, there was not an impediment to connecting the unit to an AV unit which used RS485. But this ignored the following cross-examination of Girgis: RYAN SC: Now, finally, Mr Girgis, I don't want to take too long on this, but there's a debate between you and Mr Thibaud in this case, isn't there, about the utility of making a connection between the Directed – the Gridtraq CPU which requires RS232 and the Hanhwa AV unit which requires RS485. You suggest that one might do that by means of an adaptor and there's a debate that goes on between you and Mr Thibaud as to whether the adaptor would be effective in the circumstances, appropriate in the circumstances, whether it would devalue the product or not and, well, you recall that debate, don't you? GIRGIS: I do, yes. As evidenced in the mark-up in my earlier affidavits, it was one that I spent a lot of time on. I think we don't debate technically as much as it may appear. We come at it from two different perspectives. Mr Thibaud talks about adding – you know, if I was designing a unit from scratch I would add RS485 at the beginning, why would I add an adaptor in later. I completely agree with that, however, this was an already developed unit, as he described that had an RS232 connection that had been initially designed for satellite communications and then used for other purposes which I think supports my view that endeavouring to take advantage of the existing units RS232 to connect to 485 or vice versa, sorry, was evident. So I don't think we disagree. It was just I was looking at it from an already developed unit and he has commented from a – if I was developing the unit from scratch. In regard to an adaptor between the two units, between RS232 and 485, my view is that based on my experience at TCA and having reviewed a number of telematics units, the need to comply an adaptor with necessary vehicle standards is not necessarily the case. It has – it can obtain power not directly from the vehicle but from other sources and in terms of environmental standards, it doesn't necessarily need to meet the external standards that Mr Thibaud was proposing because it's in the vehicle's cabin and hence it's subjected to what a normal person would be subjected to effectively in the vehicle of – in the cabin of a vehicle. Q: Yes. But you would accept, wouldn't you, that there are a lot of factors that would come into play before one could settle upon an adaptor that was effective and appropriate for this particular connection. Correct? A: You would have to give it due consideration but it's not a difficult challenge. It's a readily available adaptor. It has been done. I've done it with RS485 and RS232 and RS232 and RS422 in the video space. So these are not complex challenges; they are very well-worn paths, and so the decision-making is more around whether you choose to do it or not, rather than whether it can or can't be done and it's certainly very, very feasible. Low cost – relative low cost as I think identified and fairly easy to do. Q: And you, I think, ultimately punted for a DTE electronics product in your second affidavit? A: Yes. I think I provided one that identified might be suitable based on the parameters I set which were that it was – it didn't need to comply with the environmental standards or – and could operate within existing power available without having to connect directly to power in the vehicle. Q: And did you in fact test that adaptor to connect the RA7000 telematics unit and the Isuzu DAVE, for example? A: No, I did not. Q: Or any other AV unit which operated on a RS485 protocol? A: No. I haven't – for this purpose do you mean tested it? No, I haven't it. I've experienced it in the past so I didn't feel it was necessary. Q: Well, sorry, are you saying that you've used this particular detect adaptor? A: No. 3606 Let me at this point say something about debugging. 3607 It is said that the Gridtraq parties requested a debugging board using the RS485 communication protocol so that they could check telematics communication between the CPU (RS232 protocol) with the Isuzu DAVE and HAU8000 AV units (RS485 protocol). Just how this communication was to occur is not explained. 3608 Further, the minutes of 31 March 2017 that I have previously referred to expressly identify the purpose of the first debugging board as being concerned with the RA7000 screen and the telematics module whilst the second board is concerned with the Isuzu DAVE unit. But the minutes do not, as Girgis said, identify what the Isuzu DAVE unit was to be connected to in the debugging operation. 3609 Clearly, there is no reference to a Gridtraq telematics module connected to the DAVE, nor is there reference to the debugging board being for use with the HAU8000 AV unit. Dylan Hartley was cross-examined about this document. His evidence was that there was no discussion around an HAU8000 at the meeting. 3610 Perhaps Oh sent the second debugging board to Gridtraq to assist it in its failed endeavours to connect the CPU to the Isuzu DAVE, but there was no prospect that it could ever have been used to assist Gridtraq to connect the CPU to the HAU8000 because Gridtraq did not even request a sample of that unit until August 2017. 3611 Directed asserts that the "communication cable" referred to therein "can be inferred" to be the CPU. This is another example of tenuous inferences sought to be drawn but unsupported by any expert evidence. The CPU is not and bears no resemblance to a "cable". 3612 Now reference has been made to an email from Oh to various Hanhwa Korea personnel in which Oh says of the second debugging board: This board was requested separately by Webhouse to check the communication between Isuzu 6200 line and 8000 model (models) and the Telematics so it doesn't concern the RA7000. 3613 Perhaps the board may have been of some utility in checking the communication between the Isuzu 6200 model and the CPU. But Gridtraq did not even have an HAU8000 model. Perhaps Oh may have been speaking theoretically given that the HAU8000 model and the 6200 models both use RS485 hardware communication protocol. But as a practical matter the debugging board could not have been of any assistance to Gridtraq in relation to the HAU8000. 3614 Let me say something about icons. 3615 It appears that for each of the HAU8000 screen and the RA7000 screen, there would be a telematics icon whether or not telematics was connected; this could encourage an upgrade. In the case of the HAU8000, if you pressed the icon you would be told to see the Isuzu dealer, because Hanhwa would not provide telematics operation with the HAU8000 and the dealer would need to arrange it through a third party. In the case of the RA7000 you would also be told to see the dealer, because the dealer could arrange for Hanhwa to then provide telematics via the Gridtraq CPU. 3616 But none of this establishes Directed's connectivity case. 3617 Let me deal with a number of other matters. 3618 First, Directed says that renderings were exchanged between Lee and Meneses which included the RA7000 AV unit. It is said that this demonstrates that Meneses was well aware of and involved in the RA7000 project. But it does not. Lee did not send Meneses a rendering of the RA7000 AV unit. He sent him a rendering which used the screen from the RA7000 AV unit depicted with a "Mercedes Benz" branded fascia housed in the dashboard of a truck. Further, the evidence merely demonstrates that Lee sent that rendering to Meneses in February 2017. There is nothing in Meneses' email to Lee which presupposes an awareness of the RA7000 AV unit, let alone the safety screen project. Meneses' email to Lee simply states "Any art work??". Further, when cross-examined in relation to his exchange with Meneses, Lee's evidence was as follows: LEE: I had a conversation with Johnny on that time, and Johnny ask me that "Do you have a stand-alone navigation to propose Mercedes Sprinter opportunities?" And I say, "Yes, we have." This is owned by Hanhwa, so we can propose the unit to Directed. That's what I said to Johnny. WISE QC: I think what you said – and the transcriber has missed it again. I think you said, "Do you have a" – Johnny said to you, "Do you have a standalone navigation unit to propose?" Is that right? A: That's correct. Q: Thank you. So from February 2017 he was aware that you did have a unit with the RA7000 functions, but you're saying you didn't tell him the name was the RA7000. Is that your evidence? A: I didn't recall I said name, but I didn't – I didn't provide an MFL. Q: Okay. Did you tell him that it had telematics capability? A: No. No ..... telematics, just the rendering. 3619 Second, Directed said that Shin accepted that in March 2017 he and other Korean engineers connected an HAU8000 installed in an Isuzu vehicle with the RA7000 telematics unit to see whether they communicated. But whatever he did was not said to involve the Gridtraq parties. Further, whatever form of connection might have been made, it does not appear to have been effective because no communication was said to be achieved. Further, Shin later said in evidence that the relevant Isuzu van had a DIR6160 AV unit installed, not an HAU8000. Further, the text relating to that van in the report Shin was being asked about does not refer to RA7000 telematics unit. 3620 Third, Directed said that it should be inferred that Gridtraq used the Directed Specification to connect the RA7000 telematics unit with the HAU8000. But I am not prepared to infer this from the evidence. 3621 Fourth, Directed also said that it should also be inferred that the specification for communication between the RA7000 telematics unit and HAU8000 referred to on page 46 of the Gridtraq presentation to IAL was the Directed Specification or a specification created by reference to the Directed Specification. But I agree with the Gridtraq parties that that inference is not open. Girgis was cross-examined on the IAL presentation as follows: RYAN SC: Thank you. Can we go forward now to page _0046, please. Okay. So we're talking now about Isuzu command centre head unit integration. Left-hand side of the page, next line down, it refers to Gridtraq developed proprietary protocol. Do you understand that to be the Gridtraq specification or also known as the Quantam specification which we had a look at on Friday? GIRGIS: Yes. I think it's – my understanding is that it is the specification – the Gridtraq specification." 3622 It can be seen that he identified the specification referred to as in fact the "Gridtraq" or "Quantam" specification. So, it is clear that that specification was not the Directed Specification. Further, it is clear that that specification was written by Tracey Abrams, an employee of the Gridtraq group. 3623 Fifth, it may be accepted that on 8 December 2016, Allen Hartley sent an email to his business partners, Thibaud, David Keightley and Davidson: We are now at the point where as Quantam we need as Directors to please discuss and evaluate [an] opportunity and to decide a way forward. Hugh, we also need you to meet with Ryan as he needs reassurance of our commitment [and] ability to deliver. Dave, we need you to head up the integration and connectivity requirements of the first phase of [the] project, and to also coordinate a meeting in Korea at the point that everyone is comfortable [regarding] delivery and we are ready to develop a telematics board to go into their head unit. Please can we discuss this at today's meeting as we really need to go back to Ryan with our feed[back]. Hanhwa is currently splitting away from Directed Electronics and they are counting on us being [able] to deliver the telematics component, and they want Quantam to partner with them going forward in [the] various markets that they are active in. 3624 It may also be accepted that the reference to "their head unit" could be taken to mean the SuperDAVE. 3625 Now in December 2016, the Gridtraq parties prepared a document for its related entity, Quantam, called "Quantam Telematics Opportunity". It set out what was required to help Hanhwa Aus pursue the "Super Dave" with Isuzu; the reference to "CPU" should be taken to be to the RA7000 telematics unit and the "New Radio" to the HAU8000. It stated: HANHWA want to demonstrate Telematics using the CPU connected to their New Radio. The Radio is being presented to Isuzu in January – launching with the N Series Model. They expect the volumes to be 12,000 to 15,000 units per year across the range. Full production and supply of this new radio "Super Dave" is to be May 2017. For their demonstration in January to Isuzu they require the CPU connected to the Radio to perform the following: Messaging Driver ID Telematics including CAN Data They want the telematics component, added telematics services and support of the program to be priced and supplied by Gridtraq. 3626 But this was a proposal that went nowhere in the sense that IAL did not take up any telematics option offered by the Gridtraq parties. 3627 Sixth, Allen Hartley did not depose to a conversation with Lee in which Lee had sought Gridtraq's assistance to demonstrate telematics integration with the HAU8000 by January 2017 and that a communications protocol would need to be developed to enable this to occur. Allen Hartley's written evidence was: In about late-2016, Ryan expressed a desire for Quantam and Hanhwa to do more business together. By that time, the companies were collaborating well on the Safety Screen Project, although it had not yet been commercialised. In particular, Ryan Lee identified that there was a range of radios for a new model of vehicle being imported and that Directed did not want to pay the tooling on, that Hanhwa was going to distribute it directly, and that there may be a telematics requirement (if the manufacturer requested it). Ryan said that he wanted us to work on it just in case, to have something ready to show the manufacturer by the following January. I said to Ryan that it would be necessary to first establish connectivity to the radio that he was looking to supply as well as the operating system and screen protocol that we would be looking to develop in order to communicate within the head unit. At the time, I hoped that it would merely involve transcribing the protocol for the Safety Screen to the radio head unit. Following the DOCA, and to my knowledge, I did not know or think that Directed had an operational protocol to talk to Hanhwa's radio head unit. 3628 Allen Hartley was asked about this in cross-examination: WISE QC: Okay. What I want to suggest to you, sir, is that the proposal in paragraph 63 of your affidavit related to Gridtraq and Hanhwa together pitching to supply the CPU to Isuzu for use in operation with the HAU8000. That's the proposal, isn't it? ALLEN HARTLEY: That's simply not true, Mr Wise. 3629 Further evidence was given: WISE QC: Well, we will come to the relevant protocol for the communication in due course. But for the moment you're referring to ensuring that there is – the CPU is able to connect to the radio, in this case the HAU8000. That's correct, isn't it? ALLEN HARTLEY: Well, I don't know what radio it is. I said here "to the radio". I mean, Hanhwa could give me any radio that has an RS-232 port and I can connect to it. 3630 As I have said previously, in my view Allen Hartley was a credible witness. RA7000 conduct (non HAU8000 conduct) 3631 Let me at this point address the RA7000 conduct question in terms of the Mercedes Sprinter opportunity and the Australia Post opportunity. 3632 Directed says that it should be inferred that the Gridtraq parties knew since at least June 2016 that Meneses was involved in the RA7000 conduct. 3633 Directed says that Meneses diverted at least two opportunities away from Directed to the Hanhwa parties and the Gridtraq parties which they sought to satisfy with the RA7000 AV unit and/or the RA7000 telematics unit. 3634 Directed says that the Hanhwa parties' and the Gridtraq parties' attempted exploitation of the Mercedes Sprinter opportunity and Australia Post opportunity by the promotion of the RA7000 AV unit and/or the CPU to the exclusion of Directed was a misuse of Directed confidential information, which information it is said Meneses provided. 3635 It is said that Meneses was involved with and was well aware that Gridtraq had the RA7000 AV unit and the RA7000 telematics unit and that they were capable of providing the functionality required by Mercedes and Australia Post. It is said that Meneses was involved in the RA7000 project. 3636 Further, documents relating to the RA7000 and the RA7000 telematics unit were found in Meneses' home during the execution of the search order. Mercedes Sprinter opportunity 3637 Directed alleges that the Gridtraq parties have misused information in relation to the Mercedes Sprinter opportunity, which comprised a request by Mercedes to Directed on 2 February 2017 for Directed to put forward a proposal for the supply of a standalone navigation unit to be externally mounted on the dashboard of Mercedes' Sprinter buses. 3638 There is no substance to this allegation against the Gridtraq parties. 3639 Further, there is no substance to the allegation that the Gridtraq parties conspired with the other respondents to supply Mercedes with the RA7000 AV unit and the RA7000 telematics unit instead of Directed's products. 3640 Directed also alleges that the Gridtraq parties used certain data and specifications for the purposes of, inter alia, the Mercedes Sprinter conduct. But there is no evidence that the Gridtraq parties ever possessed the relevant documents. 3641 Further, Allen Hartley described the extent of his knowledge regarding the supply of an AV unit to Mercedes as follows: WISE QC: So you had a discussion with Ryan Lee about an inquiry for the supply of an AV unit to Mercedes. That's correct, isn't it? ALLEN HARTLEY: I had a conversation with Ryan Lee. Q: Yes. About that subject matter; correct? A: No. I met Ryan Lee on the top of the stairs, I'm not sure of the exact – where it was. He said to me that he had received an inquiry from Directed for a safety – for a product that he could use the safety screen mould for. The Gridtraq parties owned 50 per cent of that mould and he asked me would I be happy if he used it to supply to Directed. And I chuckled to myself and I thought, "Well, that's pretty cool." And I said, "Yes, we would be very happy, provided that we get revenue out of in terms of our half share of the mould." And that was ..... discussion. I wasn't aware what – that's exactly the discussion, start to finish. 3642 Directed's case against the Gridtraq parties was spurious. Australia Post 3643 Directed says that the second RA7000 opportunity diverted was an opportunity identified by Meneses on 20 March 2017 to supply a product to Australia Post. Meneses sent the relevant RFI to Allen Hartley. Gridtraq submitted a proposal to supply the RA7000 AV unit and the RA7000 telematics unit. It is said that the email by which Meneses communicated to Allen Hartley the Australia Post opportunity by his supply to him of the RFI, is evidence of the Gridtraq parties' knowledge of his wrongdoing. 3644 Directed says that Meneses was well aware that the Gridtraq parties and the Hanhwa parties had the RA7000 AV unit and the RA7000 telematics unit, and that they were capable of providing the functionality required by Australia Post. 3645 It is said that the Gridtraq parties acted with requisite knowledge to induce Meneses to breach his contractual, fiduciary and statutory obligations to Directed. 3646 Further, in relation to the Gridtraq parties' knowledge of Meneses' and Mills' involvement in the RA7000 conduct, Directed also relies on the documents found at Meneses' house during the execution of the search order relating to the RA7000 AV unit and the RA7000 telematics unit, and the presentation to IAL that represented that the HAU8000 was capable of working with a third parties' telematics unit. Directed says that it is to be inferred that the telematics unit concerned was the CPU (RA7000 telematics unit), and that this was the unit that achieved connectivity with the AV unit, with the participation of Hanhwa Aus. 3647 Now the Gridtraq parties assert that Directed's claim in relation to the RA7000 conduct must fail as there is no evidence Directed suffered any loss as a consequence of the Gridtraq parties' conduct with respect to the safety screen and/or the CPU. They also assert that the safety screen is unlike any AV unit offered by Directed, which has never been sold commercially. 3648 But Directed says that it is not necessary to show that the opportunity was successfully exploited by the Gridtraq parties or Hanhwa Aus. And Directed's deprivation is its exclusion from the possibility of exploiting those opportunities, whether mature or not. 3649 Now I accept that Meneses sent Allen Hartley on 20 March 2017 an opportunity with Australia Post. The email from Meneses to Allen Hartley did not have content, but only attachments. Allen Hartley emailed Davidson and Dylan Hartley about this: Hi Jeremy/Dylan, Johnny has just sent this through to me now, the closing date is Wednesday 12h00 22nd March. It is a RFI (request For Information) only and reading quickly through their requirements the CPU could do basically what they are looking for. They would need to standardise on a range of vehicles and we would need to interface into the CAN, and there would be a development and proofing period required, and we would need to give them an API to extract data. What are your thoughts, and Dylan do you have time to put something together and do we want to. Best regards Allen 3650 Now in cross-examination, the following exchange occurred with Allen Hartley: WISE QC: And it was a request for information issued by Australia Post? ALLEN HARTLEY: That's correct. Q: Meneses forwarded that to you; correct? A: That's correct. Q: Now, that was an opportunity for Hanhwa to exploit using the RA – sorry, I've got my words wrong then. That was an opportunity for Gridtraq to exploit the RA7000, was it not? A: No. Totally incorrect. Q: You forwarded the document to Jeremy and Dylan. Can we go to the next page, please. Page up, please. So you forwarded the document to Jeremy and Dylan: Johnny has just sent this through to me now. The closing date is Wednesday. It's an RFI only. Reading quickly through their requirements the CPU could do basically what they are looking for. They wouldn't need to standardise on a range of vehicles. etcetera, etcetera: What are your thoughts, and Dylan, do you have time to put something together and do we want to? I want to suggest to you, sir, that if there was such terrible bad blood between you and Meneses, or the Gridtraq people and Meneses, it's very strange that he would provide you with an opportunity to exploit. Do you agree with that? A: No. You can quite clearly – I seem to think that Ryan had told him to send it to us, number one. Number two, you can see this is typical of Johnny Meneses. You see the date; it comes through on a Monday and there's a mass of big documents got to be in on Wednesday. Very typical. Absolutely doesn't care a damn about us. All right. And we looked at it, and the CPU – what they were looking for was lock and unlock. The CPU had lock and unlock and a – telematics and immobilising function. So we looked at it and decided did we want to do it? We are hungry. It's a telematics security type proposal. We submitted the tender. 3651 I am not satisfied that the Gridtraq parties were involved in any diversionary conduct. This evidence, which I accept, demonstrates the specious nature of Directed's claim as against the Gridtraq parties. Hanhwa: 6160 opportunity 3652 During February to August 2017, Hanhwa with Meneses' knowledge and involvement, developed an AV unit to supply to Mercedes to replace the DIR6160 AV unit that Directed was then supplying. They needed a telematics unit and telematics functionality. 3653 Directed says that the Hanhwa parties and the Gridtraq parties proposed to integrate the RA7000 telematics unit with the Hanhwa 6160 unit for supply to Mercedes. 3654 In March 2017 Hanhwa worked on extracting CAN Bus data in order to provide telematics functionality for its proposed AV unit, including by Shin and one of its other employees extracting CAN Bus data on a Mercedes truck at Directed's premises. 3655 In early 2017 Lee told Gridtraq that he had received an inquiry relating to the supply of an AV unit to Mercedes. It is said that I should infer that this was the 6160 opportunity and Lee had sought the Gridtraq parties' assistance for the telematics. 3656 The 6160 conduct was a project involving Hanhwa Aus. Meneses was clearly a partner with Lee in Hanhwa Aus. Again, given their knowledge of the involvement of Meneses in all aspects of the business of Hanhwa Aus, Directed says that the Gridtraq parties knew since at least June 2016 that Meneses was involved in the 6160 conduct. 3657 Further, during the Brisbane Truck Show in May 2017 Dylan Hartley emailed CAN Bus information and parameters for Mercedes Trucks. Directed says that it is to be inferred that the Gridtraq parties were involved in developing telematics functionality to work with the Hanhwa version of the DIR6160 in Mercedes trucks as they were for the HAU8000 in Isuzu trucks. 3658 Now it appears that the attempt to supply a new AV unit to Mercedes to replace Directed's DIR6160 was overtaken by the successful supply by Hanhwa Aus of the LM19M to replace Directed's DIR6160. But Directed says that the attempt was a breach by Meneses of his obligations in which the Gridtraq parties and the Hanhwa parties knowingly participated. 3659 Directed says that given their knowledge of the involvement of Meneses in all aspects of the business of Hanhwa Aus, the Gridtraq parties knew at all times since at least June 2016 that Meneses was involved in the 6160 conduct. 3660 It is said that the Hanhwa parties and the Gridtraq parties proposed to integrate the RA7000 telematics unit with the Hanhwa 6160 unit for supply to Mercedes. 3661 Further, it is said that the Hanhwa parties' and the Gridtraq parties' exploitation of the 6160 opportunity to the exclusion of Directed was a misuse of Directed's confidential information. 3662 Further, in the case of Meneses and Mills, it is said that the Gridtraq parties acted to induce both of them to breach their contractual, fiduciary and statutory obligations to Directed. 3663 So far as the Gridtraq parties are concerned, the Hanhwa 6160 conduct concerns the development, testing, marketing, promotion and offering to supply of an AV unit, referred to as the Hanhwa 6160 unit, to Mercedes. 3664 Directed alleges that by participating in the Hanhwa 6160 conduct, the Gridtraq parties engaged in accessorial and inducement conduct with respect to Meneses, Mills and Hanhwa. 3665 But there is no evidence which supports Directed's allegations with respect to the Gridtraq parties' alleged involvement in the Hanhwa 6160 conduct. Diversion of Hino opportunity 3666 In early 2017, Hino told Jaffe of Directed that Hino wanted a new, upgraded Hino unit with a bigger screen to replace the AV unit that Directed was then supplying. Directed says that the Hanhwa parties and Meneses sought to exploit the opportunity to the exclusion of Directed with a version of the DIR8000 called the HAU8200. 3667 Between at least April 2017 and September 2017, the Hanhwa parties worked on the design of the HAU8200 with Meneses' knowledge and involvement. But they needed a telematics unit and telematics functionality to work with the HAU8200. 3668 Lee met with Hino in May 2017 at the Brisbane Truck Show and discussed the supply of the unit. During the truck show Dylan Hartley emailed CAN Bus information and parameters for Hino Trucks. Directed says that it is to be inferred that the Gridtraq parties were involved in developing telematics functionality to work with the HAU8200 in Hino trucks as they were for the HAU8000 in Isuzu trucks. 3669 Directed says that the Gridtraq parties knew that Meneses was involved in the Hino conduct given their knowledge of his role at Hanhwa Aus. It says that the Gridtraq parties were acting with requisite knowledge to induce Meneses to breach his contractual, fiduciary and statutory obligations to Directed in relation to the Hino conduct. 3670 Further, Directed says that during his restraint period, Meneses continued to approach Hino on behalf of Hanhwa Aus to supply Hino the HAU8200. 3671 Further, Directed says that although Hanhwa was apparently not successful in winning this business, it was an opportunity that Directed was deprived of. 3672 It is said that the Gridtraq parties knew at all times since at least June 2016 that Meneses was involved in the Hino conduct given their knowledge of his role at Hanhwa Aus. 3673 It is also said that the Gridtraq parties acting with requisite knowledge induced Meneses to breach his contractual, fiduciary and statutory obligations to Directed in relation to the Hino conduct. 3674 It is said that the Hanhwa parties' and the Gridtraq parties' exploitation of the Hino opportunity to the exclusion of Directed was a misuse of Directed's confidential information. 3675 So far as the Gridtraq parties are concerned, the Hino conduct concerns the development, testing, marketing, promotion, manufacture and sale of an AV unit, referred to as the Hino unit or HAU8200, to Hino. 3676 Directed alleges that by participating in the Hino conduct, the Gridtraq parties engaged in accessorial and inducement conduct with respect to Meneses, Mills and the Hanhwa parties. 3677 But there is no evidence which supports Directed's allegations with respect to the Gridtraq parties' alleged involvement in the Hino conduct. Diversion of the Isuzu D-MAX 3678 Siolis of Directed identified this opportunity and instructed Meneses to pursue it for Directed. Meneses harboured the opportunity to himself by reporting to Siolis that Isuzu Utes was not interested. 3679 Since at least February 2016, Meneses and Lee sought to exploit the opportunity for Hanhwa to supply AV units to Isuzu Utes for its D-MAX vehicles to the exclusion of Directed. This unit was specified to have telematics functionality and to have the circuitry ready to do so. 3680 In August to November 2016, Lee, Meneses and Mills jointly prepared a Hanhwa written presentation. In the Hanhwa Korea presentation, Meneses was listed as the contact for "Australia office". Meneses and Mills caused a sample D-MAX unit to be sent to Directed and for it to be given to Summers for testing by him. 3681 Lee confirmed that Meneses presented the D-MAX unit at a dealer showroom in Brisbane in early 2017. Meneses, Mills and Sue Mills were aware of and assisted in the preparation of the presentation, which recorded that Meneses was the contact person for Hanhwa Aus and providing his Hanhwa email address and the mobile number issued to him and paid for by Directed. 3682 The exploitation of the D-MAX unit continued through 2017. Hanhwa's 2017 business plan for Australia records that the development of the HAU8100 for Isuzu Utes (D-MAX pickup truck) is in progress, expecting first shipment in 2017. 3683 Mills was involved during the period of his employment by Directed. 3684 Even if Hanhwa was not successful in winning this business, it was an opportunity that Directed lost through Meneses, the Hanhwa parties and Mills' misconduct. 3685 Now the Gridtraq parties argue that there is no evidence of its involvement in the D-MAX conduct and that there was no misuse of confidential information. But Directed put the following points. 3686 First, the confluence of timing of Hanhwa's formal decision to divert the SuperDAVE and to change its model no. to HAU8000 and the assigning of model no. HAU8100 to the D-MAX implies that the D-MAX unit was an iteration of the HAU8000. A comparison of the elements and functionality also suggests this. This is also to be inferred from the email discussing pin connectors for "DIR-8000 model" and the responsive minutes which refer to "Changes to DIR8000 and HAU8100 (D-MAX)". Neither the Hanhwa parties nor the Gridtraq parties have led any evidence to suggest that the D-MAX was not the HAU8000 with a different fascia. 3687 Second, just as the HAU8000's telematics functionality was developed with the aid of the Gridtraq parties, it should be inferred that the telematics functionality for the D-MAX was developed with the Gridtraq parties' involvement also. 3688 Third, this is also to be inferred from the minutes of a meeting between representatives of the Gridtraq parties and City Holdings on 10 August 2017 which contains a notation "D-MAX vehicle integration "Waiting". 3689 Directed says that the Gridtraq parties knew at all times since at least June 2016 that Meneses was involved in the D-MAX conduct. Directed says that the Hanhwa parties and the Gridtraq parties proposed to integrate the RA7000 telematics unit with the HAU8100 for supply to Isuzu Utes. 3690 Further, it is said that the Hanhwa parties' and the Gridtraq parties' exploitation of the D-MAX opportunity to the exclusion of Directed was a misuse of Directed's confidential information. 3691 It is also said that the Gridtraq parties acted to induce both Mills and Meneses to breach their contractual, fiduciary and statutory obligations to Directed. 3692 So far as the Gridtraq parties are concerned, the Isuzu D-MAX conduct concerns the development, marketing, promotion, manufacture and sale of an AV unit, referred to as the HAU8100, to Isuzu Ute Australia Pty Ltd. 3693 Directed alleges that by participating in the Isuzu D-MAX conduct, the Gridtraq parties engaged in accessorial and inducement conduct with respect to Meneses, Mills and Hanhwa. 3694 But there is no evidence which supports Directed's allegations with respect to the Gridtraq parties' alleged involvement in the Isuzu D-MAX conduct. Confidential information 3695 Directed does not particularise or identify with specificity any confidential information that it alleges was misused by the Gridtraq parties in respect of any of these opportunities. 3696 In particularising its claim that the Gridtraq parties misused confidential information in relation to the D-MAX opportunity, Directed says that the particularised Directed confidential information provided by Meneses, Mills and Directed to Lee, Hanhwa Korea and Leemen Korea was used by the Gridtraq parties to pursue the D-MAX opportunity for their sole benefit and to the exclusion of Directed. But the evidence does not establish with particularity the information which the Gridtraq parties are said to have received or used. 3697 And as for the HAU6160 opportunity and Hino opportunity, the allegations of misuse of confidential information lack an evidentiary foundation. The Directed Specification 3698 Let me now turn to Directed's more specific case against the Gridtraq parties concerning the use and misuse of what has been described as the Directed Specification. I should say now that I reject this case. 3699 It is said that the Gridtraq parties received the Directed Specification on three occasions and misused it such as to breach an equitable duty of confidence. 3700 First, on 18 November 2016, Dylan Hartley received from Oh of Hanhwa an email containing a Dropbox link to files described as "DIR6200 TFB – Up to date Firmware" and "Protocol data sheet of ISUZU unit", which email was copied to Lee, Hartley and Davidson. 3701 Second, on 31 March 2017, Dylan Hartley received from Oh an email attaching a copy of a file described as "Radio Specification Rev0.15.pdf", which email was copied to Lee, Hartley and Davidson. 3702 Third, on 19 December 2017, Dylan Hartley received from Lee an email attaching a copy of a file described as "Radio Specification Rev0.15.pdf", which email was also sent to Davidson and copied to Hartley. 3703 I should discuss in more detail Directed's case concept. 3704 Directed says that following the formation of the joint venture between the Hanhwa parties and the Gridtraq parties, the Hanhwa parties relied on the Gridtraq parties for telematics hardware and solutions for the HAU8000 and derivative AV units to customers, in substitution for the telematics solutions available from Directed. 3705 It is said that Lee recognised that it would be the responsibility of the Gridtraq parties, working with Hanhwa Korea employees, to come up with the commands and codes necessary for the two units to talk to each other or be integrated with one another. 3706 Directed says that without the Gridtraq parties, the Hanhwa parties lacked the capacity to make a full service AV unit/telematics offering. Similarly, it is said that the Gridtraq parties wanted to work with the Hanhwa parties to offer an AV unit in conjunction with its telematics offerings. 3707 Directed says that in late 2016 Lee told Allen Hartley that Hanhwa was splitting away from Directed and they were counting on the Gridtraq parties to deliver the telematics component. Lee told him that Hanhwa wanted to demonstrate telematics using Gridtraq's telematics unit (CPU) connected to their "New Radio" (HAU8000). Lee told him that he wanted the Gridtraq parties to have something ready to show IAL by January 2017. The new radio "SuperDAVE" was being presented to IAL in January 2017 launching with the N Series Model. The Hanhwa parties expected the volumes to be 12,000 to 15,000 units per year across the range. Full production and supply of this new radio "Super Dave" was to be May 2017. For their demonstration in January to IAL they required the CPU connected to the HAU8000 to perform the following: Messaging, Driver ID and telematics including CAN Bus data. They wanted the telematics component, added telematics services and support of the program to be priced and supplied by Gridtraq. 3708 Directed says that Allen Hartley told Lee that it would be necessary to first establish connectivity of the CPU to the HAU8000 and that Gridtraq would need to develop a screen protocol to enable the CPU to communicate with the HAU8000. It is said that there was timing pressure on the Gridtraq parties given the need for the HAU8000 to be demonstrated to IAL working with the CPU in January 2017. 3709 Now the Directed Specification enabled the AV units supplied by Hanhwa Korea to Directed to communicate with the Directed telematics units. It was implemented for communication between all of the AV units supplied to Directed by Hanhwa Korea and Directed's telematics units, including those supplied to IAL. 3710 Now Vardon, a firmware engineer who had consulted to Directed from 2010, created version 1 of the Directed Specification on 20 February 2014. Vardon created various subsequent versions in the period 2014 to 2016 which were provided to Hanhwa Korea to enable it to develop AV units for Directed. 3711 I should note at this point that as to the title "DE01 Radio Specification", the code "DE01" means Directed Electronics Project I, which was a term created by Vardon. Vardon's firmware engineering services were provided to Directed under the trading name Varteknik. 3712 The Directed Specification was provided by Vardon to Directed, which made a copy available to Hanhwa Korea solely for work on connectivity between the Directed telematics device (manufactured by STI) and the Isuzu AV units. But Directed says that Hanhwa Korea was not permitted by Directed to provide a copy of the Directed Specification to a third party. Further, Vardon stated: I did sometimes provide Directed telematics units and the operating specification for the Directed telematics unit so they could decode the tracking data to put on the website to Allen Hartley, Jeremy Davidson and Dylan Hartley. However, I never provided to them a copy of the Directed Specification or any of Directed's other firmware, software, protocol or specifications or CAN data. 3713 I should also note at this point that on 3 June 2019, Vardon assigned any residual intellectual and industrial property rights in the Directed Specification and in any revisions or versions he created, to Directed, as well as any causes of action and rights to sue for damages for past infringements of that copyright. 3714 Directed says that on 17 November 2016, the Gridtraq parties including Dylan Hartley asked for and were supplied on 18 November 2016 by the Hanhwa parties, through Oh after getting approval from Lee to do so, the Directed Specification without the authority of Directed. 3715 Directed says that it was sought by the Gridtraq parties from the Hanhwa parties to pursue the joint projects with the Hanhwa parties. Directed says that it was misused by the Gridtraq parties with the approval and assistance of the Hanhwa parties. 3716 It says that both the Gridtraq and Hanhwa parties knew from the document itself that it was a Directed document. It was clearly marked. But neither sought permission from Directed to use it. Instead, so Directed says, the Gridtraq parties went through the Hanhwa parties to access a document they obtained on three separate occasions in the period November 2016 to December 2017. 3717 Directed says that the Directed Specification was not disclosed by it to the Gridtraq parties. Further, it did not derive from any other specifications forming part of the joint venture. Further, so it says, it was not intended for third party dissemination without the permission of Directed. It says that the words "internal use" on the cover of each document, combined with its contents, served to warn the reader that it was confidential information. 3718 On 18 November 2016, Lee had the following text exchange with Oh. Lee (referred to as "Local User" in the document) is commonly referred to by Oh as "Mr EVP"): Lee: We won ISUZU… Oh: Are you talking about 8000, Mr EVP? Or DEMAX???? Lee: 8000 for 1300 dollars Oh: Mr EVP!!!!!!!!!!!!!! Units only, right?? Accessories are all separate???????????? Lee: Of course. Don't tell anyone. [About four hours later] Oh: Dear Mr EVP, Would it be okay to open our ISUZU protocol information to Dylan?? 3719 Directed contends that "Dylan" means "Dylan Hartley", and that, by this text, Oh sought permission to share with the Gridtraq parties, the Directed Specification, which had been provided in confidence to the Hanhwa parties for testing purposes, to facilitate the Gridtraq parties providing the telematics functionality of the HAU8000 and its role as the Hanhwa parties' new telematics partner. 3720 Dylan Hartley claimed that following a discussion he had with Lee earlier that day, which was said to be about continuing work on the RA7000 project, "we discussed updates to the Quantam Specification that were the subject of emails between the representatives of Quantam and Hanhwa". He said he did not use what Lee provided because it was the wrong one. 3721 Under cross-examination, Dylan Hartley also said: DYLAN HARTLEY: Okay. I recall roughly at the time that I was talking with Ryan about the Quantam protocol, and I'm not sure why he sent this document. But the continual issue with trying to communicate with the Hanhwa team on protocols and documents and the likes, I don't recall ever using it or actually even reading it. The comments from Anthony is that this is, you know, it is a surprise to me because at that time he was a member of GPL and, you know, I do question what his intentions were to believe that it's something that for only him and Johnny when clearly he was a member of GPL and we had just demoed the messaging to Isuzu at a press day around that period. It's – you know, it's disappointing. The confidential note again, I don't know whether the confidentiality is obviously between the parties using the document internally of which obviously GPL would be one of those internal parties. But I think that's pretty much everything I can say on that. GOLVAN QC: Now, Mr Hartley, you never got a copy of this Directed – any version of the Directed Specification whilst working for GPL, did you? DYLAN HARTLEY: So again within my own personal role I've never really needed a copy of the specification. We did talk through previously that GPL work on developing the functionality and there were multiple versions of the document. 3722 Directed says that when asked why he did nothing to communicate back to Lee "We shouldn't be referencing this document, it is claimed as confidential by Anthony"?, Dylan Hartley said, "In my opinion, I don't think it's relevant. I didn't ask for this document. He has clearly just sent it to me and he said "Which one is this?", which I think shows himself he doesn't understand what the document is.". 3723 Directed says that the timing of the discussion with Shanks and the supply of the Directed Specification follows a similar chain of events to the supply of the Directed Specification to Dylan Hartley on 18 November 2016, immediately after Lee's "we won ISUZU" text message exchange with Oh. 3724 Directed says that it is to be inferred that Lee and Dylan Hartley did have a discussion earlier that day. However, it was about the new requirements of IAL for a version of the DAVE to be supplied directly from Hanhwa Aus. This led to Lee searching his emails to find the required version of the Directed Specification. 3725 Directed's case is that the Directed Specification was used to successfully connect the RA7000 telematics unit to the DAVE and the HAU8000. It relies on Girgis' opinion to that effect, so it is said. 3726 Now Dylan Hartley gave evidence that he and Davidson sought to resolve communication difficulties between their CPU and the RA7000 AV unit by connecting the CPU to a DIR6200 or DAVE Isuzu radio using the Directed Specification. They knew that the DIR6200 or DAVE Isuzu radio communicated via the RS485 protocol, so there was no point attempting connection with the Quantam Specification which was written for communication via the RS232 protocol. 3727 Further, the AV unit which was being tested by Dylan Hartley in operation with the CPU using the Directed Specification was the DIR6200. The reference to "TFB" in the part number means it was a telematics enabled unit. The DIR6200 he was testing had a telematics icon which appeared on the screen of the AV unit and clicking the telematics icon did not click through anywhere. 3728 Now evidence was given to the effect that in the DIR6200, when the ignition is turned on there is a "handshake" communication between the AV unit and any device connected to the RS485 input to the unit. If the "handshake" is successful, then the DIR6200 knows a Directed telematics unit is connected. This in turn enabled the telematics functionality within the AV unit. If the DIR6200 does not receive the expected response from a connected telematics unit, then the handshake is unsuccessful and the telematics icon would not click through anywhere. 3729 Evidence was given that for the DIR6200 and a connected telematics unit to successfully perform a handshake, both units needed to use the Directed Specification or a specification developed for that purpose. Directed says that this is why Oh provided the Directed Specification to Dylan Hartley on 18 November 2016. 3730 Now Dylan Hartley said that the Directed Specification was of no use given what he said he identified only in March 2017 as a serial protocol incompatibility issue. But Directed says that his evidence failed to accord with the evidence of Oh and Shin concerning telematics testing of the CPU connected to the HAU8000, including a request in August 2017 for an HAU8000 unit to perform further testing. 3731 Now the timing of the second occasion when the Directed Specification was provided to the Gridtraq parties on 31 March 2017 coincided with the visit of the two engineers from Korea and the work they undertook at the Brooklyn premises between 28 and 31 March 2017 and the meeting Dylan Hartley had with Oh in the morning on 31 March 2017 at the Brooklyn premises. Shin confirmed the detailed testing he conducted with the two engineers and their success in establishing connectivity between the CPU and the HAU8000 in an Isuzu truck. He also confirmed that work was undertaken in relation to testing the CPU with a Mercedes AV unit. 3732 On 3 February 2017, Oh informed Dylan Hartley by email that Hanhwa was preparing the new RA7000 sample and planned to send it to Quantam's office. When responding, Dylan Hartley referred to "firmware we are expecting on the new Safety Screen and the new Isuzu Head Unit". He asked Oh, "to confirm that the new firmware that we are expecting with the new Safety Screen that you will send us is the same for the new Isuzu Head Unit". Oh confirmed that "New Isuzu Head Unit" meant the HAU8000. Oh understood that Dylan Hartley was wanting to ensure that the updated firmware for the RA7000 safety screen would be the same as the firmware for the HAU8000. 3733 Between 28 and 31 March 2017 two engineers from Hanhwa Korea, Song and Min Soo Kim, came to Australia and worked for four days with Shin undertaking work connecting the RA7000 telematics unit in various vehicles including an Isuzu truck. They provided a report of their work. Shin confirmed that this is what occurred. The purpose of the business trip was divided into RA7000 and CAN Bus data derivation. The work involved checking BENZ, ISUZU CAN "communication function" and "RA-7000 Telematics interlocking". 3734 Significantly, Shin accepted that during this work they connected an HAU8000 installed in an Isuzu truck with the RA7000 telematics unit to see whether they communicated. An attempt to detect CAN Bus data was also made. However, there was a problem. The "J1979" method was attempted, but only meaningless data could be detected. It appears that additional software was needed to fix the problem. 3735 Shin also confirmed that work was undertaken in relation to testing the RA7000 telematics unit connected with a Mercedes AV unit. 3736 In March and April 2017, the Gridtraq parties and the Hanhwa parties prepared hardware and exchanged extensive correspondence in relation to debugging tools to be used to check the communication between the RA7000 telematics unit and the DAVE unit and the HAU8000. 3737 As I have said, the second occasion when the Directed Specification was provided to the Gridtraq parties was on 31 March 2017. This coincided with the visit of the two engineers from Korea and the work they undertook at the Brooklyn premises between 28 and 31 March 2017. It also coincided with a meeting Dylan Hartley had with Oh in the morning on 31 March 2017 at the Brooklyn premises. Oh was responsible for taking the minutes of a meeting held that morning with Dylan Hartley; and likely, Allen Hartley, Davidson and Lee who were copied into the minutes. After the meeting's conclusion, at 1.29 pm that day, Oh emailed a number of Hanhwa Korea team members in the following terms: Isuzu series unit (DIR6200/HAU8000). Request additional tool response to check RS communication. (1) Debugging board (RS485). (2) Application file that can be installed on the computer. (3) After confirming the line for the available schedule for the above tool, request a reply. (If it is different from the schedule) RS232 – or /5 and RS485 – TBD) as stated by Min Soo Kim. Request for reply. 3738 Oh confirmed that the request for two debugging boards was further to a conversation with the Gridtraq people, "Yes. I asked our engineers to prepare the debugging board." This is evidence of Gridtraq's continued efforts to provide telematics functionality to the HAU8000. 3739 Oh circulated the minutes of the meeting on 31 March 2017 to Dylan Hartley, Allen Hartley and Davidson at 3.26 pm, roughly two hours after her request for debugging boards from the Hanhwa personnel. The minutes are consistent with her request of the Hanhwa personnel. The inference is clear from the timing of the meeting with Gridtraq that morning, the nature of the communications that followed, and the Hanhwa parties' reliance on the Gridtraq parties for telematics expertise, that the Gridtraq parties were the source of the request, so that they could check telematics communication between the RA7000 telematics unit/CPU (RS232 protocol) with the Isuzu DAVE and HAU8000 AV units (RS485 protocol). 3740 Item 4 of the minutes was in the following terms: 4. Protocol Data sheet • RA7000: RS232 Communication • ISUZU Dave Unit & New ISUZU unit: RS485 Communication • Please update the protocol data sheet for telematics module and pass it on to me for reference. • Please refer to the attached "ISUZU Radio specification" data. 3741 Oh confirmed that when she referred to 'New Isuzu unit' she meant the HAU8000. The attached "ISUZU Radio specification" was version 0.15 of the Directed Specification created by Vardon on 29 June 2016. The Gridtraq parties admit they were provided with the Directed Specification by Oh. 3742 As I have said earlier, Oh accepted that in early April 2017 the Hanhwa parties' and Gridtraq parties' engineers were seeking to check communication between the RA7000 telematics unit/CPU and the DAVE and the HAU8000, using the different serial protocols. This check was to be enabled with a debugging tool being prepared at the request of the Gridtraq parties by Hanhwa Korea following the meeting held at the Brooklyn premises with Dylan Hartley on 31 March 2017. The request for the debugging tool was made by the Gridtraq parties. Oh confirmed that the testing was being done with the CPU, DAVE and HAU8000. 3743 On 6 April 2017, as part of the work done by Hanhwa Korea engineers to prepare the RS485 debugging board, Jun Kim from the R&D Lab at Hanhwa Korea provided Oh with the HAU8000 Telematics Program and User Manual. He said he would deliver that day the "RS-485 communication cable" to a team member, Sungmin Bin. It is clear that the communication cable was the cable that would connect the HAU8000 unit to a telematics unit. It can be inferred this was the CPU. 3744 On 7 April 2017, Oh emailed various Hanhwa Korea personnel at 1.52 pm. The document was in Korean, but its translation was read into the transcript: Greetings. This is Hyunju Oh from Hanhwa Aus. Thank you for confirming the requested items. Here is some additional information concerning the details about the RA7000 test debugging board in the attachment because there are parts that may cause confusion. (1) Applicable model RA7000. (2) Re debugging board preparation. Item 1. RS232 debugging board requested by Webhouse to check the communication between RA7000 and the telematics module unchanged from the existing or possibly previous communication: Sample application and manual delivered to Webhouse. Number 2. RS485 debugging board. This board was requested separately by Webhouse to check the communication between Isuzu 6200 line and 8000 model (models) and the telematics so it doesn't concern the RA7000. Reference email. Please see "subject sharing RA7000-related Webhouse meeting details and requests sent on 31 March 2017. Managing Director Kichang Lee is scheduled to have a meeting with Webhouse personnel this afternoon. As soon as the progress and finalised matters on the addition and the mounting of AMP, external AMP are confirmed, I will share the details with you. Thank you, Hyunju Oh. 3745 It was apparent from the email that the Gridtraq parties had requested the two debugging boards. The RS232 debugging tool was to be used to check the communication between the RA7000 AV unit and the "Gridtraq telematics box" being the RA7000 telematics unit. The RS485 debugging board was to be used to check the communication between the DAVE and the HAU8000 and the RA7000 telematics unit. 3746 On 21 April 2017, the Hanhwa parties made a further comparison between the DIR8000 and the HAU8000. The MFL for the DIR8000 once again referred to "RS-485 chip communication" provided for connection to a telematics unit to provide telematics functionality. A work report for Hanhwa for the period 15 May to 19 May 2017 confirms that work was being undertaken to update the HAU8000 software to improve the telematics functionality through additional CAN information. 3747 On 24 May 2017, Oh texted Lee seeking instructions as to the user interface of the HAU8000. It is clear that telematics capability of the HAU8000 connected to the CPU was the default position to be reflected in the GUI from her next request to Lee: "And when RA7000 telematics is not linked, what should be done about it?" Lee responded advising to include a message to the effect that the driver should contact their local Isuzu dealer. 3748 Further, Directed says that Oh accepted that in early April 2017 the Hanhwa parties' and the Gridtraq parties' engineers were seeking to check communication between the CPU and the DAVE and the HAU8000, using the different serial protocols. This check was facilitated with a debugging tool being prepared at the request of the Gridtraq parties by Hanhwa Korea following a meeting held at the Brooklyn premises with Dylan Hartley on 31 March 2017. The request for the debugging tool was made by the Gridtraq parties. Oh confirmed that the testing was being done with the CPU and the DAVE and HAU8000. Shin confirmed the testing he conducted with the two Korean engineers in late March 2017 and their success in establishing connectivity between the CPU and the HAU8000 in an Isuzu truck. 3749 Further, Oh said that in August 2017, Dylan Hartley arranged a meeting with her to discuss the connection issues with the CPU and the DAVE and HAU8000. An HAU8000 sample was requested by Dylan Hartley at that time. Oh confirmed that her handwritten notes in Korean of a meeting with Gridtraq that took place on 11 August 2017 referred to the HAU8000. 3750 But Oh asserted that the reference to the HAU8000 was unrelated to the matters discussed, which were only related to the RA7000. I accept that evidence. Oh was dealing with a number of products. 3751 Now Directed says that the evidence in chief of Dylan Hartley was silent on testing the CPU connected with the HAU8000, instead referring to testing on the RA7000 AV unit (or "safety screen") and the DAVE in the period November 2016 to March 2017. It is said that he said nothing about the Gridtraq parties asking for debugging boards to test the connection of the CPU with the HAU8000 in April 2017 or the meeting he had with Oh on 11 August 2017 or the Gridtraq parties asking for a sample HAU8000 in August 2017. 3752 Further, Directed says that the relevant events contradict Dylan Hartley's assertion that it was found in March 2017 that a connection could not be established between the CPU with the DAVE because of serial protocol issues. It says that the serial protocol issue was no impediment to the work being done to establish a telematics connection. Work on such a connection between the CPU and the HAU8000 was undertaken in the period March to August 2017, before the IAL presentation in September 2017. 3753 Directed says that Gridtraq's evidence should also be rejected on not having attempted to and not having established telematics connectivity between the CPU and the HAU8000. 3754 Further, Directed says that far from dismissing compatibility between the CPU and the Isuzu Radio, the Gridtraq parties promoted to IAL their capability and the compatibility of the HAU8000 with the CPU. 3755 Now I have dealt earlier with Gridtraq's presentation to IAL on 25 September 2017 and have rejected Directed's case on this aspect. 3756 Now Directed says that another occasion when the Directed Specification was disseminated on 19 December 2017 by Lee to the Gridtraq parties was in connection with the work required to ensure that the new Hanhwa LM series AV unit had telematics connectivity. 3757 Dylan Hartley's evidence was that Gridtraq was working on the integration of the RA7000 AV unit and its telematics units, and that Lee provided this document and the email to Gridtraq in that context. But Directed says that the more likely explanation is that it was being used to establish connectivity between the CPU and Hanhwa's AV units, which the Gridtraq parties and the Hanhwa parties were seeking to supply to OEMs at the time such as IAL (their new version of the DAVE) and Mercedes (their version of the DIR6160). 3758 On 18 December 2017, the day before the Directed Specification was provided, Shanks of IAL and Lee had met to discuss the next steps given that IAL had resolved not to continue purchasing the HAU8000 in view of the concerns IAL had about the HAU8000 in light of the litigation. At this time, the litigation had been on foot since October 2017. Hanhwa Korea and Leemen Korea had given notice to Directed in November 2017 that it would not accept any further orders of the DAVE after 28 February 2018. An email from Shanks to Lee dated 28 December 2017 records what was discussed: Ryan, … Please provide a sample of the DIR6200 (DAVE unit) with your proposed Hanhwa facia which we discussed at our 18/12/2017 meeting where you reported that with the new facia Directed OE would have no claim on this contribution. … 3759 Lee claimed that he sent the Directed Specification to Dylan Hartley because he wanted to understand whether this was the document referred to by Directed in its Statement of Claim. However, Directed says that it did not refer to the Directed Specification in its Statement of Claim until 2019, more than a year later. 3760 It is said that I should find that Lee and Dylan Hartley lied about the reasons for which Lee provided this version of the Directed Specification to Hartley. Their explanations contradicted each other. Neither explanation was consistent with the logical inference that arises from timing. 3761 Whilst the Gridtraq parties' proposal was not ultimately accepted by IAL, the HAU8000 as per the MFL was accepted. 3762 Let me deal with another matter. The Gridtraq parties assert that Hanhwa was not only entitled but also required to possess the Directed Specification because it was responsible for developing the DIR6200 firmware. Further, Directed makes no claim in the proceeding regarding any proprietary rights it has in any of the software or firmware residing in Hanhwa's radios. In those circumstances, it is said that Hanhwa has or had a licence to use the Directed Specification for its own benefit. 3763 But Directed says that there are difficulties with this contention. 3764 First, there is no pleading in reliance on the suggested licence or how it extended to allowing Hanhwa to provide it to the Gridtraq parties to use for some other extraneous purpose. 3765 Second, the Directed Specification has "Internal Use Only" on its cover. And when it was first provided to Hanhwa in May 2014, Hanhwa was informed that it was not to be provided to anyone else. Plainly it was not intended for third party dissemination without the express permission of Directed. The words "internal use" on the cover of each document, combined with its contents, served to warn the reader that it was confidential information. 3766 Third, Lee understood that it was provided to Hanhwa Korea so the Hanhwa parties could test the AV units they were to supply to Directed. Lee acknowledged that the Directed Specification was confidential and provided to Hanhwa Korea solely in order that it could develop the telematics functionality of the Hanhwa AV units for supply to Directed and that he understood that Hanhwa Korea was not entitled to provide it to third parties or to use it for any other purpose. 3767 Directed says that Gridtraq's licence argument is not maintainable. I am inclined to agree. But to reject this argument does not entail that Directed has a claim against the Gridtraq parties. Analysis 3768 Now I would reject Directed's case against the Gridtraq parties in terms of any misuse of the Directed Specification. 3769 First, Dylan Hartley requested Hanhwa to provide the Isuzu protocol to him for the sole purpose of the testing which I will discuss in more detail later. 3770 Second, it is not in dispute that the Gridtraq parties received copies of the Directed Specification by way of the Directed Specification communications. But there is no evidence from which it can be reasonably inferred that the Gridtraq parties ever established a connection between the CPU and the DIR6200 and/or the HAU8000, or even that they could have reasonably done so, with or without the use of the Directed Specification. Indeed, there is evidence from which it can be inferred that such a connection would not have been possible without a substantial development by the Gridtraq parties' engineering team. 3771 Third, there is an absence of any evidence of the Directed Specification being used by the Gridtraq parties either as a specification for communication between the CPU and the HAU8000 or as a reference for any such specification. Indeed, the evidence of the Gridtraq parties establishes that they developed their own specification independently from 2014, namely the Quantam Specification. 3772 Fourth, apart from the fact that the Gridtraq parties did not use the Directed Specification for the purposes or in the ways alleged by Directed, there is no evidence from which it can be reasonably inferred that they ever satisfied themselves of the fact that the CPU could connect to and operate in conjunction with the HAU8000. 3773 Let me elaborate on various matters. And for this purpose, let me say something about the various specifications discussed in the evidence, and as the Gridtraq parties correctly characterised. Purpose and utility of the Directed Specification 3774 The Directed Specification is the specification by which the Directed telematics unit integrated and/or communicated with the DIR6200, which was manufactured by Hanhwa. 3775 Directed described it as the software containing the commands and codes used by the Directed AV unit and the Directed telematics unit to communicate with each other that enabled communication between Directed's telematics units and AV units. It also included details concerning interactions between the DIR6200, the remote telemetry server and the telematics module, which acts as a "bridge" between those two sides. 3776 Vardon authored the Directed Specification and the firmware for the Directed telematics unit. Vardon described the Directed Specification as the "plan" for such code rather than the code itself. According to Vardon, such firmware code would contain identifiable elements of the Directed Specification. 3777 Tselepis was cross-examined by the Gridtraq parties by reference to specific statements contained in the Directed Specification about its purpose and examples of its usage. He accepted that the Directed Specification contained references to both radio to telematics unit communication as well as server to telematics unit communication. 3778 In cross-examination, Vardon also agreed that the Directed Specification described interaction between the radio unit and the remote server via the telematics unit or module, with the telematics unit acting as a bridge between the radio and the remote server. Vardon also agreed that for the server to be able to communicate messages to the radio using the Directed Specification, it would be necessary for the server to send the message in the correct format, because otherwise the radio would not understand the message. 3779 Tselepis' and Vardon's evidence indicates that the Directed Specification is not concerned only with communications between the radio and the telematics unit, but also with communications between the telematics module and the telemetry server. Varteknik Specification and Gridtraq communications protocol 3780 In early December 2012, Vardon was engaged by STI to draft what is referred to in the evidence as the "Varteknik Specification". Vardon described this document as a template or precedent document for the purposes of his business generally, from which he would take parts and adapt it for particular clients for their particular services. 3781 The Varteknik Specification was never actually implemented, but it was intended by Vardon to be generic and therefore compatible with any server, including the Gridtraq portal server. 3782 Whilst the Varteknik Specification and the Directed Specification are described by Vardon as very different documents, they do have a common purpose in terms of sending data from a server through telematics to a radio. 3783 In February 2013, Vardon shared the Varteknik Specification with Hanhwa and the Gridtraq parties, via Emile Strydom. This was necessary for Hanhwa to implement it into the firmware of the DIR6200 because it was concerned with serial communications between the TM01 and TFT. And this was necessary for the Gridtraq parties to update the Gridtraq portal software to ensure its compatibility. 3784 The Gridtraq communications protocol is the protocol for communications between various telematics units and the Gridtraq portal. 3785 During the period 2012 to 2016, Vardon collaborated with Strydom to produce the Gridtraq communications protocol. This process required Vardon and Strydom to share their respective materials and knowledge with each other in order to establish compatibility between the Directed telematics unit and the Gridtraq portal which, at the server end, involved updating the software accordingly, where necessary. This exchange of information between the parties was at the direction of Tselepis. 3786 Vardon also collaborated with Strydom to produce communications protocols for other telematics modules. 3787 Let me now delve into some of the factual detail. I should say that some of this is a duplication of what I have already said, but it will assist ease of comprehension. The Directed Specification 3788 From July 2013 until June 2019, Vardon was engaged by Directed on an informal basis to provide consulting services, which included firmware development. Vardon was an independent contractor and his work for Directed was not exclusive. Vardon used his own computer hardware for the purposes of his work for Directed and he did not have access to Directed's data storage devices. Vardon retained control over the documents he produced during his work for Directed, for example by sharing documents in PDF file format. 3789 In the period between 17 March 2014 and 7 May 2014, Vardon created the first draft of the Directed Specification. Vardon's evidence is that it took approximately 36 hours to produce that document. Vardon used a Varteknik generic template document to do this, which he referred to as "DaveML". At that time, the Gridtraq portal was operational and Vardon collaborated with the JV Vehicle via Strydom in relation to his development of the Gridtraq communications protocol. 3790 Now Directed says that Vardon was a firmware engineer who had consulted to Directed from 2010. But prior to July 2013, Vardon provided consulting services to STI, not Directed. 3791 Further, Directed says that Vardon created the Directed Specification on 20 February 2014, but there is no evidence that Vardon undertook any work on the Directed Specification prior to March 2014. 3792 Further, it is also said that the creation of the Directed Specification was the product of 12 months of development work. But the evidence establishes that Vardon created the first draft of the Directed Specification in the period between 17 March 2014 and 7 May 2014. It took approximately 36 hours to produce that document. And Vardon used a Varteknik generic template to do this. 3793 On 7 May 2014 at 9:14 pm Vardon circulated to Tselepis (copied to Berlin) a radio specification which was said to be draft 1. The document attached described itself as "DE01 Radio Specification" with Vardon as the author. 3794 The attached email stated: Okay, after much faffing about, I have put together a draft for the Radio Specification. It is fairly generic and extensible so it should allow a lot of room to move on the part of the Radio guys without having to make too many changes to the basics of the spec. So, if you guys could just give it a quick once over and then if you are happy with it, can you pass it on to Johhny and Dylan? Now onto formalising the testing regime. 3795 At 9:20 pm, Tselepis responded: Thanks Dave, Will go through it tomorrow. Please keep in mind that Dylan had nothing to do with this at this stage. So no information is to be passed on to the Gridtraq boys at this stage. 3796 At 9:11 am on 8 May 2014, Vardon responded: Thanks for that and not a worry, I don't intend on sharing with the gridtraq guys at any point soon. Though it would be good if the radio guys can look at it and see if they have any issues with it. 3797 Later that day at 3:36 pm, Tselepis forwarded the specification to Lee (copied to Meneses) in the following terms: Junior, Here is a copy of the radio specification communications protocol between the GSM unit and the radio via RS485. Please forward to your software engineer to start implementing into radio. If any problems please come back to us ASAP. Please confirm that you have implemented the RS485 interface into the radio hardware. ***Please Note that this document is Confidential and should only be between Me and You and Johnny. NO ONE ELSE! *** 3798 The specification was marked "For Internal Use". An introductory paragraph was in the following terms: The purpose of this document is to define the Communications interface for use between the Radio and the tracking device. It is designed to be an ASCII based text protocol with a leaning towards XML mark-up simplified for use on an embedded system in order to provide both the maximum compatibility with various interface technologies [AT Command set etc..] as well as to make human user interaction far simpler than an binary based system. Also, the use of text makes error checking simpler in that single bit errors will tend to invalidate the entire command packet rather than potentially allowing a broken packet to be handled. The primary method of interacting with the Radio is the idea of a 'Message'. The Message is the text to be displayed as well as the conglomeration of all the other potential entities that a Message can possess. The entities that can be associated with a message are as follows. 3799 Further, the Directed name in capitals was on each page of the document in the top left hand corner. 3800 Further, it would seem that the version of this Directed Specification may have derived from a radio serial protocol specification issued on 6 December 2012 authored by Vardon for Varteknik, an entity not associated with Directed. 3801 The Directed Specification appears to have been updated. 3802 When Vardon originally provided the first draft of the Directed Specification to Directed, he asked Tselepis to pass it on to Meneses and Dylan Hartley for them to see if it was acceptable because at that point Vardon had assumed that Dylan Hartley and Gridtraq would be involved. Vardon thought at that time it was important to send the protocol to the people who would need to use it to connect with the telematics unit at either end. This was a reasonable assumption for Vardon to make, especially given his ongoing collaboration with the JV Vehicle and the fact that he had previously shared the Varteknik Specification with the JV Vehicle for the same purpose. But in replying to Vardon's request, Tselepis asked Vardon to "keep in mind that Dylan had nothing to do with this at this stage. So no information is to be passed on to the Gridtraq boys at this stage". 3803 And on 8 May 2014, as I have said, Directed provided to Hanhwa a copy of the first draft of the Directed Specification. This was necessary for essentially the same reasons as why the Varteknik Specification was provided to Hanhwa. Hanhwa was responsible for the creation of the firmware code for its AV units such as the DIR6200 and the necessary elements of the Directed Specification needed to be integrated by Hanhwa engineers with the code of that firmware. 3804 On 30 March 2016, Vardon forwarded an update to, inter-alia, Tselepis and Meneses. 3805 On the same day this update (said to be revision 0.10) was forwarded by Meneses to Lee. 3806 This updated version then seems to have been internally circulated within Hanhwa Korea including to Oh on 30 March 2016 and 11 April 2016. 3807 A further update (revision 0.15) then seems to have been circulated in or after 29 June 2016, but with all reference to Directed removed. It would seem that the Gridtraq parties had a copy of this. 3808 Further, on 19 December 2017, Lee forwarded to the Hartleys and Davidson a copy of the email that Tselepis had sent to Lee over 3 years earlier on 8 May 2014 at 3:36 pm, which I have reproduced above, together with another copy of the original version of the Directed Specification (version 0.1) produced on 7 May 2014 but with all reference to Directed redacted. Lee's email just asked the question: "What is this one??". 3809 Now there was nothing on the face of the emails received by the Gridtraq parties on 18 November 2016 and 31 March 2017 to suggest that their contents were confidential to Directed. Whilst the copy of the Directed Specification attached to the 31 March 2017 email bore the phrase "FOR INTERNAL USE", there is no reason why that should have alerted the Gridtraq parties to a possibility that Hanhwa was not entitled to disclose it to the Gridtraq parties for its own purposes. Likewise, there is nothing on the face of that document from which the Gridtraq parties should have been aware of any restrictions placed upon its use by way of any exclusive arrangements that may have existed between Directed and Hanhwa. 3810 Further, Dylan Hartley understood that the Directed Specification was the Varteknik Specification or an evolved version of that document. This is understandable given his familiarity with that document from his time working at the JV Vehicle. At the time he received the Directed Specification in late-2016 and early-2017, he had no reason to believe it was anything other than the Varteknik Specification or a later version of that document. 3811 Now the email that was received by the Gridtraq parties on 19 December 2017 contains the email originally sent by Tselepis to Lee and Meneses on 8 May 2014, and attached another copy of the Directed Specification. But Dylan Hartley's evidence is that he did not request the Directed Specification on this occasion and he had no idea as to why Lee was sending it to him. I have no reason to doubt this evidence. 3812 Further, as to Directed's reliance upon the confidentiality warning, Dylan Hartley said: …it is a surprise to me because at that time he was a member of GPL and, you know, I do question what his intentions were to believe that it's something that for only him and Johnny when clearly he was a member of GPL and we had just demoed the messaging to Isuzu at a press day around that period. It's – you know, it's disappointing. The confidential note again, I don't know whether the confidentiality is obviously between the parties using the document internally of which obviously GPL would be one of those internal parties. But I think that's pretty much everything I can say on that. 3813 Further, as to Davidson's so called indifference, the following evidence was given: WISE QC: Yes. That's okay. When you read it you saw that note, and it was immediately apparent to you that forwarding of this document was not authorised. Do you accept that? DAVIDSON: Well, in fact I think Ryan was authorised to do so, so therefore he was authorised to send it somewhere else as far as I'm concerned. I mean, it wouldn't have affected me in any way at this point in time and it didn't make any difference because I don't know if that specification would have helped me. Conclusions 3814 It is not contentious that during the relevant period, Davidson, with the assistance of Dylan Hartley, was testing, with difficulty, the inter-operation of the CPU with the RA7000. His purpose in doing so was to achieve inter-operation between the CPU and the RA7000 not, as it is alleged by Directed, between the CPU and the DIR6200 or the HAU8000. 3815 Davidson and Dylan Hartley attempted to test the CPU with a DIR6200 unit. Dylan Hartley's evidence describes their reasoning for doing this at that time in terms that they thought that the way in which the safety screen and Isuzu radio communicated with the CPU should have been similar because the safety screen and Isuzu radio were both manufactured by Hanhwa and comprised of similar hardware components and firmware. I have no reason to doubt this. 3816 On 17 November 2016, Dylan Hartley and Lee had a telephone discussion. It can be inferred from Lee's evidence about his understanding of the purpose of Dylan Hartley's requests for the Isuzu radio firmware and the Isuzu protocol in his follow-up email to Lee that the general subject of that discussion included that the Gridtraq parties wanted to experiment with the Isuzu protocol, the CPU and the DIR6200 for the ultimate purpose of identifying the difficulties they were having in achieving inter-operation between the CPU and RA7000. 3817 On 18 November 2016, Dylan Hartley received an email from Oh containing a download link to what he recalls were copies of the DIR6200 firmware and the Directed Specification, neither of which are in evidence. When Dylan Hartley saw Directed's logo on the Directed Specification, he assumed the logo was there because Directed was involved in supplying AV units to IAL at the time. He gave evidence: When I downloaded and opened those files, I saw the Directed logo on the first page of what appeared to be the GPL Specification. I had seen various versions of the GPL Specification before then, but this was the first time I had seen it with the Directed logo on it. I assumed that the Directed logo had been inserted into the document at some stage because Directed was still involved in distributing the Isuzu radio at that time. 3818 Davidson and Dylan Hartley continued the relevant experiments at various times until late March 2017. The contents of emails exchanged during that period refer to the difficulties that the Gridtraq parties were having with the installation of firmware for each of the DIR6200 and RA7000, rather than any particular use by them of the Directed Specification. 3819 On 31 March 2017, the Gridtraq parties received from Hanhwa an email containing minutes from a discussion between those parties which Dylan Hartley described as trying to understand the connection between the CPU and the safety screen. The entry "Please refer to the attached 'ISUZU Radio specification' data" is a reference to the copy of revision 0.15 of the Directed Specification that is attached to that email. 3820 The parts of the 31 March 2017 email which contain the text "RS232 for RA7000 and telematics module" and "RS485 for ISUZU DAVE units" brought about Dylan Hartley's realisation that the cause of the difficulties he and Davidson had encountered with the DIR6200 was the hardware incompatibility between the RS485 serial communication protocol used by the DIR6200 and the RS232 serial communication protocol used by the CPU. 3821 Now due to the hardware incompatibility between the serial communication protocols of the CPU and the DIR6200, inter-operation between those devices was never established. There is no evidence to the contrary. Directed's theory that these difficulties could be overcome by using the Directed Specification is misconceived. The relevant experiments therefore went nowhere for the Gridtraq parties. 3822 Let me deal with one final matter concerning the evidence. Directed's case is that the Directed Specification was used to successfully connect the RA7000 telematics unit to the DAVE and the HAU8000. The support for that assertion is said to be in the written evidence of Girgis. But Girgis gives no such written opinion. He just notes various matters in answer to the evidence of Lee that the HAU8000 was not designed to communicate with any telematics unit. Now Girgis did speculate concerning one particular document, but he did not maintain his position. He gave evidence about the Korean version of the relevant document and then in relation to the corresponding English translated document: RYAN SC: Thanks. Now, can I ask you to look at a document you refer to at para 231 of your affidavit. I will call it out. It's DIR.BROO.0441.0001. Okay. Thanks. Now, in your paragraph 231, Mr Girgis, you note this document and you make some observations about it. Can I take you to paragraph 231(b). You say: The document records various matters, such as (b) how the HAU8000 connected to the RA7000 telematics unit, opportunity 2. Do you see that? GIRGIS: Yes. Q: Could you explain to me how you got that from this document? A: Sure. If I may, I just need to zoom in on that. The cloud in the left top hand side, HAU indication on/off set-up – and I can't recall the last word. I suspect it's not in English. Thank you. And in relation to the top note referring to the RA7000, which is what the meeting is for, so with the note under that presumably the RA7000 AV unit, because the reference is to TPMS and cradle. … A: And in relation to the reference to CAN at the bottom, which refers to, presumably, the telematics unit for receipt of CAN data or speed – not speed, but CAN data from the vehicle. Q: Right. So that leads you to the conclusion that this records how the HAU8000 connected to the RA7000 telematics unit, does it? A: That's what I've concluded. However, it could be another telematics unit, yes. Q: It could be, couldn't it? A: It could be. Q: There is no reference at all to the RA7000 telematics unit? A: No. That's correct. … Q: And the document ID is DIRS.0008.0001.1058 and while that's coming up, the court book reference is volume 12, tab 54, page B7457. And I want you to look, please, at paragraph 85(k) which is on page 25 of the affidavit. Okay. We've got to scroll down to page 25. Thank you. Paragraph (k), Mr Girgis, down the bottom of that page? A: Yes. Q: You will see you have now been given an English translation of the document in Korean that I was asking a few questions about a short time ago? A: Yes. … Q: It might be helpful. Thank you. Okay. Now, Mr Girgis, I just want to suggest to you that even with the English translation you wouldn't change the evidence that you gave a short time ago about what this document reveals to you, would you? In other words, there's no reference, even as translated, to the RA7000 telematics unit, is there? A: If you can allow me to just – other than in the title and the reference halfway down to the Isuzu telematics box, they're the only two references that I base that on. Q: Right. But I think as you – as I think you said a short time ago, the reference at the top, RA7000, is more likely a reference to the RA7000 AV unit, rather than telematics unit? A: Yes, possibly. Q: And when we go down to the reference to Isuzu telematics box, this – I think the evidence is that this meeting occurred on 8 November 2016, at which time the Isuzu telematics box would have been the – it would have been the Directed Telematics unit, wouldn't it? A: It's unclear. 3823 So, Directed has failed to prove that the Gridtraq parties misused the Directed Specification in the ways alleged. 3824 In summary, I reject Directed's case that there has been any actionable misuse of the Directed Specification by the Gridtraq parties. 3825 Let me deal with another matter thrown up by the evidence that I should mention, although it is collateral to and not essential in light of the foregoing conclusion. Directed's purpose in keeping the Directed Specification from the Gridtraq parties 3826 Now it is not in dispute that the Directed Specification was never provided by Directed to the JV Vehicle prior to March 2016. Tselepis was cross-examined by the Gridtraq parties about his reasons for this: TSELEPIS: The radio specification was created by Vardon in 2014. RYAN SC: Yep, and did the Hartleys know about it? A: No. They shouldn't have. … Q: Why? A: Because it was a communication protocol between the Directed telematics unit and the AV unit. Q: But we've just seen not half an hour ago that the first version of that specification written by Vardon was freely shown to Strydom so he could provide has assistance in its production, didn't we? A: We did. Q: Right. What changed, then, with the next specification? A: I'm not too sure. You will have to ask Mr Vardon. 3827 Accordingly, the Gridtraq parties cross-examined Vardon: FLEMING: … you had assumed at the time that perhaps Mr Tselepis didn't want to send it on because it was only an early draft. Is that a short-form way of summarising the effect of your evidence? VARDON: That would be my assumption, yes. Q: Yes. And is it a fair assumption that you assumed that at some point in the future perhaps with a more developed draft of the Directed specification it, being the Directed specification, would be sent to the Gridtraq boys, not by you, but by perhaps Mr Tselepis? A: That would probably be – that would be my assumption because, again, I worked for Anthony. He was technically my contract-holder. 3828 On 30 July 2015, Meneses sent an email to Dylan Hartley, to which others at Directed including Tselepis were copied in, requesting an "update on the the [sic] Isuzu 'Two Way Messaging', where [sic] is the Gridtraq team at??". Tselepis replied to this, stating: We need to give Gridtraq a protocol document to be able to interface into the messaging system. This will come out next week. We've shelved this over the past few weeks as we've had other priorities. 3829 Tselepis was cross-examined by the Gridtraq parties about this exchange: RYAN SC: …let me just say this, to you, what has happened: Meneses naturally thinks that the Hartleys will have to do something at their end to accommodate two-way messaging. Once you see that the Hartleys have been alerted to this issue, you jump in and say, "We will give them a protocol, but we haven't done it because we have been too busy." Dylan Hartley says, "Yes, get it to us pretty promptly, please. We will have to do a bit of work." But, as it happened, you never gave it to them, did you? TSELEPIS: That protocol for them? I don't recall. Q: Well, you recall that you did not give it to them, don't you? A: The radio specification, is this what you're referring to? ... The radio specification is only between the AVN and the telematics unit. How the telematics unit can – communicates to the server is another protocol. … Q: …when you say to Mr Meneses: "Hi Johnny. We need to give Gridtraq a protocol document to be able to interface into the messaging system"… You were speaking there, weren't you, about the Directed specification, weren't you? A: No, I was speak [sic] about a new – a new protocol document to allow the communication between the server and the Directed telematics unit. Q: Yes, and where was that document? A: We hadn't created it yet. … Q: Well, did you create such a document? A: Not to my knowledge, no. Q: Well, what were you talking about? A: I was talking about we needed to create a document. HIS HONOUR: No, you said, "We need to give Gridtraq a protocol document"… So there are questions: (1) did you create a protocol document; (2), did you give it to Gridtraq; and (3) if you didn't, why not? TSELEPIS: I'm not too sure whether we created a protocol document because Mr Vardon did all those. Q: But, sorry, you would have paid for it, so you would have known if he had done it, surely? A: I can't recall, your Honour, sorry. … RYAN SC: Mr Tselepis, what happened is this: Mr Meneses let the cat out of the bag, didn't he? He referred to two-way messaging in his email to Dylan Hartley; right? You were copied in. You realise what had happened. That Meneses had assumed that the Hartleys were in possession of the protocol they needed, and you had to jump in and say, "No, we haven't given it to them yet. We will soon," but you never intended do that, did you? A: The Hartleys knew about two-about way messaging. I'm not too sure what's --- Q: What they didn't know, Mr Tselepis, is that you had created a specification. You had it written by Mr Vardon to deal with that two-way messaging, and they never knew about it. That's correct, isn't it? A: Between the AVN and the telematics unit. They didn't need to know about it. HIS HONOUR: I think the point being put to you is that your email says, "We need to give Gridtraq a protocol document"? ... So, at the time you wrote that, obviously, you had in mind that there was something that required Gridtraq to consider the communication functionality between the server and the telematics unit. So it wasn't just between the telematics unit and the AV unit. Gridtraq was involved, as I understand the evidence, between the server and the telematics unit? TSELEPIS: Correct, your Honour. Q: And that's what you seem to perceive in this email, "We need to give Gridtraq a protocol document"? A: Yes. Q: So you seem to contemplate that Gridtraq had to do something, ie, something to do with the communication between the telematics unit and the server? A: Correct. Q: Not between the telematics and the AV unit? A: Correct. Q: So what you're being asked, really, is what were you contemplating as at 30 July in terms of this protocol? Did you create it? ... Did you give it to Gridtraq, and if you didn't, why not? I think the question is pretty straightforward… and then you continually shift your answers to the communication between the telematics unit and the AV unit? A: So I don't recall whether we created one, whether – and whether we gave it to Gridtraq. 3830 Although Tselepis gave evidence that he was referring to a new protocol document to allow the communication between the server and the Directed telematics unit and that the Directed Specification is only between the AV and the telematics unit, this was contradicted by his later evidence. It is also contrary to Vardon's evidence. It was also contradicted by Directed's submission that Directed's portal/platform software utilised the Directed Specification to pass on communications and commands between the portal/platform and the Directed telematics unit and Directed AV units installed in customer vehicles. It was also contradicted by Girgis' diagrammatic representation of the flow of data and information between the vehicle, items of hardware and accessories installed on a vehicle and other systems located remote from the vehicle. 3831 Generally, I agree with the Gridtraq parties that Directed's evidence about its reasons for its discriminatory position against sharing the Directed Specification with the JV Vehicle is problematic. 3832 Now the Gridtraq parties say that Directed's purpose in purporting to enjoin Hanhwa Korea from sharing the Directed Specification with anyone else, including the Hartleys and Davidson, was not bona fide. 3833 And they say that given Directed's likely impropriety in dealing with the Directed Specification to the exclusion of the Hartleys and Davidson during the Directed / Gridtraq JV operational period, and its attempts during this proceeding to conceal those matters, Directed should be denied equitable relief for want of clean hands. 3834 But I do not need to determine such a question given that I have found in favour of the Gridtraq parties concerning the Directed Specification in any event for the reasons previously discussed concerning Directed's confidential information case. 3835 I should also say for completeness that I am not satisfied that Directed has any actionable claim against the Gridtraq parties for any infringement of copyright (if any) in the Directed Specification. CAN Bus Information and Vehicle Parameters 3836 Let me begin by stating a few uncontroversial propositions. 3837 A CAN Bus allows microcontrollers and devices to communicate with each other in applications without a host computer through electronic control units, such as from detectors to airbags or the connection between cruise control and breaking. The system also triggers warnings displayed to the driver, for example showing oil temperature or pressure is outside expected ranges, obstacles and so on 3838 CAN Bus information and vehicle parameters may be provided by an OEM customer to a supplier such as Directed so that Directed may develop a telematics unit or provide telematics services to that customer. Such information would not usually be available to the public. 3839 Now in the case of CAN Bus information and vehicle parameters provided by an OEM, further work was usually required by Directed prior to developing an application. Tests had to be done to confirm or verify it, which involved connecting an AV unit and telematics unit to the appropriate vehicle to receive CAN Bus data. The relevant vehicle, connectors and cables and software would be tested to interpret the raw data. Directed's CAN engineers would then verify the vehicle parameter information provided by OEMs to ensure that they were correct. Now in this context, SAE J1939 is an international standard for communications for vehicle data which provides some vehicle parameters. But it may not provide all the parameters needed to design a telematics unit to provide all the telematics information specified by the OEM customer. I should note that a parameter is a term used to refer to a data field range required for telematics functionality. 3840 Now CAN Bus data is usually needed to develop or deliver the telematics application that the OEM customer had requested. Relevant signals would be decoded by collecting and analysing data using a CAN sniffer. A CAN sniffer is a tool which, when connected to the CAN Bus of a vehicle, captures the data transmitted. To collate and analyse the signals and information carried across that CAN network, one must have the tool, tailored software, experience and skills, and undertake extensive time-consuming work. Further, every make and every model of truck has its own library. It is not possible to build up the relevant CAN Bus data necessary to supply an effective market ready telematics unit without significant work. 3841 The CAN Bus data that Directed gathered had to first be obtained using a CAN sniffer and Directed's custom built software. It was then analysed by Directed's engineers who validated the decoded information. This process needed to be repeated many times before Directed could be certain that it had decoded all the necessary CAN Bus data. The results were not publicly available. Tselepis, assisted by employees in R&D and other mechanical engineering functions, built up vehicle libraries of CAN Bus data. Directed regarded its CAN Bus data which it had collated and parameters as commercially valuable and confidential. It took steps to restrict its access. For example, Vardon never provided the Gridtraq parties with a copy of any of Directed's CAN Bus data. 3842 Now Hanhwa Korea did not need the vehicle parameters or CAN Bus data to manufacture the AV units for Directed. 3843 Nevertheless, on 6 October 2016, Meneses sent to Lee by email images and details of the CAN tool purchased by Directed. It would seem that this was purchased by Hanhwa Aus to enable it to "sniff" CAN Bus data to advance the HAU8000. 3844 In about early 2017, Meneses asked Vardon for a copy of Directed's software it had developed for obtaining CAN Bus data using a CAN tool. Vardon acceded to this request. Meneses also asked Vardon in early 2017 to upload to Directed's cloud storage platform all of the CAN Bus data that Directed had reverse engineered from vehicles. Vardon rejected this request based on confidentiality concerns. 3845 On 6 July 2017, Shin of Hanhwa Aus asked for and received from Summers a copy of the CAN Bus data Directed had compiled for Isuzu N, F, FX, FY series trucks. According to Directed, there was no legitimate purpose for Shin to be provided with this CAN Bus data. Shin admitted receipt of the data but said that Summers sent it to him unsolicited "for no reason at all". This evidence was problematic. 3846 Shin of Hanhwa Aus sought to extract CAN Bus data from an Isuzu truck in March 2017 and established that the equipment was functioning properly, but he believed that additional software was required to get the CAN Bus data from Isuzu trucks. Further, Shin asked for and received from Summers on 6 July 2017 a copy of the CAN Bus data Directed had compiled for Isuzu N, F, FX, FY series trucks. 3847 Let me make some other introductory remarks. 3848 During the Directed/Gridtraq JV, the JV Vehicle and the Gridtraq parties were engaged in providing a web platform service without the need for CAN Bus data or vehicle parameters. Nevertheless, in the period May to August 2017, Dylan Hartley by three separate emails emailed Davidson and Allen Hartley CAN Bus information and parameters for IAL, Hino, Mercedes and UD, an IAL telematics MFL and specification, and an IAL telematics data collect proposal. 3849 Whilst the Directed / Gridtraq JV was on foot, Davidson and Dylan Hartley asked Tselepis for CAN Bus data, which was refused. Vardon never provided the Gridtraq parties a copy of any of Directed's CAN Bus data. Only Directed needed to use it. 3850 Nevertheless, during the course of his employment by the JV Vehicle, Dylan Hartley obtained and in some cases collated a number of documents for the purposes of assisting Directed to supply it telematics units and services to OEMs and purchasers of the OEM's vehicles. Directed says that Dylan Hartley should not have retained or used any of these documents following the cessation of his employment by the JV Vehicle. 3851 Directed says that in so far as Dylan Hartley asserts any authorship in any of such works which he created during the course of his employment by the JV Vehicle in particular with any of the parameter documents, Directed is now the copyright owner of any copyright together with all rights to sue for past infringements pursuant to a Deed of Assignment entered into in October 2019. The assignor is the JV Vehicle which retained all assets in the JV after it was ended in March 2016. 3852 Directed says that some of the CAN Bus information and vehicle parameters gathered and used by the Gridtraq parties in issue were wholly or partially works created by Directed employees. Directed says that the information in these documents was not publicly available. I will identify these documents in a moment. 3853 Some of the documents were created by employees of Directed and Dylan Hartley in his capacity as an employee of the JV Vehicle. 3854 Some of the CAN Bus and vehicle parameters information in issue was provided by Directed's OEM customer to Directed or to the JV Vehicle so that they could develop a telematics unit or provide telematics services to that OEM customer. Such information was not readily available to the public. Directed's evidence is that it undertook tests to confirm or verify the information provided. 3855 Directed says that all of the relevant documents contained confidential information of Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that all of these documents were obtained for the purposes of the business of Directed and the JV Vehicle, and any work of authorship of Dylan Hartley in relation to them was undertaken during the course of his employment by the JV Vehicle. 3856 Now Dylan Hartley did not dispute that he obtained the relevant documents and information used by the Gridtraq parties during his time and in his capacity as an employee of the JV Vehicle. Directed says that he wrongfully retained the documents following the cessation of his employment by the JV Vehicle and then used the information improperly obtained in 2017 to further the interests of the Gridtraq parties. 3857 Directed says that Dylan Hartley owed an implied obligation of confidentiality to the JV Vehicle by his employment. He also had express knowledge of Directed's interest in such confidential information. It says that he was bound not to disclose the confidential information to an unauthorised third party or use it to his own advantage. Moreover, any equitable duty survived the cessation of employment. 3858 Now Directed's position is that this information would be useful in developing telematics products and solutions for OEMs. Davidson acknowledged that the information in the documents could be useful in developing telematics products and solutions for OEMs. Girgis also gave similar evidence. But I note that this is a hypothetical proposition and does not establish actual use. 3859 Further, Directed says that the relevant documents were misused by the simple act of gathering together the documents as a library or information for future reference. And at a minimum Directed says that that is what Dylan Hartley was asked to do and did do. Of course, whether this is actionable use is another question. 3860 Now Directed says that the Gridtraq parties admit use of some of the documents. Directed says that they were useful and were used. It says that the evidence supports a finding that they were all gathered to assist the Gridtraq parties in the development of telematics products and solutions for various OEMs, and were used in particular for the testing of the HAU8000 connected to the RA7000 telematics unit in an Isuzu truck and the offering made to IAL in September 2017. 3861 Now the Gridtraq parties have submitted that they obtained the relevant information from vehicle manufacturers, from entities other than Directed or by means unrelated to the JV project. But Directed says that the information was provided by vehicle manufacturers to Directed who then checked and amended it. So, the information was created by Directed and/or created by the JV Vehicle. 3862 Directed says that the Gridtraq parties and Dylan Hartley had no right to retain the confidential information of the JV Vehicle under the DOCA and Deed of Release as they assert. They were only permitted to retain certain physical objects, and had no rights in the content of the computer objects. 3863 Further, the JV Vehicle Shareholders Agreement to which Allen Hartley, Davidson and their companies were subject, contained confidentiality clauses that prevented them using the JV Vehicle's confidential information which had enduring and post-termination effect. And Directed says that the releases in the Deed of Release did not provide any release to Allen Hartley, Davidson, Dylan Hartley and their companies of their confidentiality obligations in these clauses. It is said that those releases only operated to modify the restraint provisions in the JV Vehicle Shareholders Agreement. 3864 Further, Directed says that there was no licence or permission given to Allen Hartley, Davidson, Dylan Hartley or any of their companies to use IP rights arising from the transfer of ownership of physical objects, including a hard drive. All assets, including any IP rights, which were not expressly transferred to the nominated parties in the DOCA were retained by the JV Vehicle. 3865 Now Dylan Hartley's evidence was that some of the CAN Bus information and vehicle parameters that Directed asserts was its confidential information he obtained from either the OEM customer or the FMS standard website. I should say now that I accept his evidence on such matters. 3866 But Directed says that notwithstanding that certain CAN Bus information and vehicle parameters may be provided by an OEM customer to a supplier such as Directed for the purpose of it developing a telematics unit or providing telematics services to that OEM customer, such information is not readily available to the public and would be regarded as confidential and commercially valuable if obtained by that supplier. Now in one sense that is correct. But I do not consider, on the present material, that Directed would be entitled to injunctive relief to protect a third party's confidentiality for the latter's benefit, although in an appropriate case that may be sustainable. 3867 I should make two other points before proceeding further. 3868 First, in relation to SAEJ1939, this is a CAN communications and messaging standard which is publicly available and provides a subset of CAN Bus information that an OEM customer may implement. But by itself, this information alone is not sufficient to develop or deliver the application that an OEM customer has requested. 3869 Second, in relation to the FMS standard, versions of the standard available online are not necessarily reliable or complete. However, by itself, this information alone is not sufficient to develop or deliver the application that the OEM customer has requested. Alleged misconduct by the Gridtraq parties 3870 Let me turn to Directed's specific points. 3871 Turning to the specific works which Dylan Hartley and the Gridtraq parties retained or used on 25 May 2017, 1 June 2017 and 10 August 2017 concerning parameters obtained during the JV, Dylan Hartley sent emails to other representatives of the Gridtraq parties in the engineering team, sending them documents which he obtained and in some cases worked on in his capacity as an employee of the JV Vehicle which he should not have retained and used. 3872 First, there were the excel spreadsheets titled "Isuzu Gridtraq Programmable Parameters" and "Telematics_EngineParameters". These documents were created on 3 February 2014 and 21 March 2014 by Tselepis and their properties record that they were last modified by Dylan Hartley on 25 May 2017. These were the default parameters that were set for Directed's telematics unit supplied to IAL as at February 2014 with whatever modifications were made since then in the version created on 25 May 2017. 3873 Further, a page of one of the spreadsheets is titled "2014 Truck Range: Engine & Driveline Parameters for Isuzu Telematics", which is a list of Isuzu models as of 2014 and includes for each model the relevant parameters that should be set to generate safety alerts for engine revolutions. These were used to calculate whether an alert should be generated where the engine is over revving and to identify the range for optimal economic driving. 3874 These documents included a note which asserted that the relevant information was confidential information of the JV Vehicle. 3875 Document GRI.003.002.0016 is an Excel spreadsheet titled "Isuzu Gridtraq Programmable Parameters" created by Tselepis on 3 February 2014. It set out the default parameters that were set for the Directed telematics unit supplied to IAL as at February 2014. 3876 In relation to the assertion that Tselepis does not identify the extent of his authorial contribution to GRI.003.002.0016, or any part of it, and that the information contained in that document came from IAL, Directed says Tselepis has deposed that he was the author of the document he sent to Dylan Hartley on 3 February 2014, which was used to create this document. He was not challenged on this evidence and no contradictory evidence has been led by Gridtraq. Further, there is no evidence that the information in that document came from IAL. It is, in fact, the default parameters that were set for the Directed telematics unit supplied by Directed to IAL as at February 2014. 3877 Directed says that this document is a copyright work of Directed and it contained confidential information of Directed at the date of the commencement of the proceeding. 3878 Documents GRI.003.002.0017, GRI.003.002.0010 and GRI.003.002.0031 are identical Excel spreadsheets titled "Telematics_EngineParameters". They consist of two worksheets: the first being identical to GRI.003.002.0016 above, created by Tselepis; and the second, titled "2014 Truck Range: Engine & Driveline Parameters for Isuzu Telematics" being a list of Isuzu models as of 2014 and the respective relevant parameters that should be set to generate safety alerts for engine revolutions. These parameters were provided to Directed and the JV Vehicle by Humphries of IAL. 3879 Directed says that this document is a copyright work that Directed is at least a joint owner of copyright in and it contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. Directed says that the JV Vehicle has assigned its copyright rights and it rights to sue for the misuse of its confidential information by deed of assignment to Directed. Directed rejects the Gridtraq parties' submission that to the extent it is alleged that Tselepis was the author of that document, or any part of it, he does not identify the extent of his authorial contribution to it. He has deposed he was the author of the document he sent to Dylan Hartley on 3 February 2014 (GRI.200.001.0601) which was used to create these documents. 3880 Second, there was an excel spreadsheet titled "Isuzu CAN Connector IAL Response AUG 2017 (WEBHOUSE_GRIDTRAQ)". This was an IAL template document which was completed with CAN Bus data for a submission by Directed to IAL. The document outlined what signals were available when connecting a telematics unit to an Isuzu vehicle's CAN Bus and comparing availability of those signals against the data IAL required. The properties of this version of the document record that it was last modified on 10 August 2017. 3881 GRI.003.002.0030 is an Excel spreadsheet titled "Isuzu CAN Connector IAL Response AUG 2017 (WEBHOUSE_GRIDTRAQ)". This is a version of a document originally provided to Directed via the JV Vehicle by IAL. The original document (GRI.200.001.0624) contained the data IAL intended to make available on its CAN connector and was provided to Directed so that Directed could develop a unit to read the data and to confirm whether it was available. 3882 Directed says that the document contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its rights to sue for the misuse of its confidential information by deed of assignment to Directed. This document, dated August 2017, contains three worksheets, the first being a copy of the original document, but with the inclusion of a confidentiality notice in favour of the Gridtraq parties, and two additional worksheets with codes and CAN Bus information. The Gridtraq parties used and modified for its use the document obtained by Dylan Hartley during the course of his employment by the JV Vehicle. 3883 Third, there was a spreadsheet "hino CANBUS info 20130717", which contained parameters which applied to Hino vehicles, being models 300, 500 and 700. The information was provided by Hino to Directed and the JV Vehicle. This was information sniffed through a connection directly to the vehicle's CAN network, analysed and decoded. 3884 GRI.003.002.0019 is a spreadsheet "hino CANBUS info 20130717". The spreadsheet contains parameters which apply to Hino vehicles, being models 300, 500 and 700. The information was provided by Hino to Directed and the JV Vehicle. This is information sniffed through a connection directly to the vehicle's CAN network, analysed and decoded. 3885 Directed said that this document contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its right to sue for the misuse of its confidential information by deed of assignment to Directed. 3886 Fourth, there was an excel spreadsheet titled "hino Copy of CAN BUS for 300series". This document contained Hino vehicle information required to read and use engine data in telematics and other applications. The information was provided by Hino to Directed and the JV Vehicle. 3887 GRI.003.002.0020 is an Excel spreadsheet titled "hino Copy of CAN BUS for 300 series". This document contains Hino vehicle essential information required to read and use engine data in telematics and other applications. The information was provided by Hino to Directed and the JV Vehicle. 3888 Directed said that this document contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its copyright rights and its right to sue for the misuse of its confidential information by deed of assignment to Directed. 3889 Fifth, there was a PDF document titled "IAL Telematics additional data collect proposal" created in 2012. This document was created by IAL and provided to Directed to assist in the provision of telematics services for Isuzu vehicles in 2012, and was treated as confidential by Directed. 3890 GRI.003.002.0022 is a PDF document titled "IAL Telematics additional data collect proposal" created in 2012. This document was created by IAL and provided to Directed to assist it in the provision of telematics services for Isuzu vehicles in 2012. On 10 August 2017, Dylan sent the document to a member of the Quantam engineering team. Clearly it was useful and was used. 3891 Directed says that this document contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its copyright rights and its right to sue for the misuse of its confidential information by deed of assignment to Directed. 3892 Sixth, there was a document titled "Isuzu Telematics - Master Feature List and Specification". The properties of the document recorded "AT_PC_HOME", which meant that the document was created by Tselepis on his home computer. It was created on 2 February 2014 by Tselepis and its properties record that it was last modified by Dylan Hartley on 1 June 2017. This document provided a list of features of two variants of telematics units and telematics services by the JV Vehicle to IAL, one called "Connect Plus" and the other being "Connect". It was prepared by the JV Vehicle for presentation of those offerings to IAL. 3893 The JV Vehicle included a note on the document that it included information which was confidential to it. 3894 GRI.003.002.0011 is a document titled "Isuzu Telematics - Master Feature List and Specification". It was originally created by Tselepis on 2 February 2014. In the properties of the document "AT_PC_HOME" means the document was created by Tselepis on his home computer. This document provides a list of features of two variants of telematics unit and telematics services by the JV Vehicle to IAL and was prepared by the JV Vehicle for a presentation to IAL. 3895 Dylan Hartley asserts that in February 2014, he created a spreadsheet on behalf of the JV Vehicle for an opportunity to supply IAL telematics which comprise worksheets with names "Master Feature List" and "Programmable Vehicle Parameters" (GRI.200.001.0970, GRI.200.001.0971, GRI.200.001.0972 and GRI.200.001.0973). This was work done in the course of Dylan Hartley's employment by the JV Vehicle. He acknowledges that Tselepis contributed to the document by providing lists of parameters extracted from the JV Vehicle's telematics unit, to which Dylan Hartley compiled and formatted that information before sharing it with IAL. He says GRI.003.002.0011 is an updated version of the IAL MFL. The document includes a note inserted by Dylan Hartley whilst an employee of the JV Vehicle that it was confidential information of the JV Vehicle. The document which Dylan Hartley asserts was the original document (GRI.200.001.0971) includes a note that the information within it was confidential information of the JV Vehicle and Directed, and includes the JV Vehicle's logo and Directed's logo. 3896 Directed says that this document is a copyright work that Directed and the JV Vehicle were the joint owners of copyright in and it contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its copyright rights and its rights to sue for the misuse of its confidential information by deed of assignment to Directed. 3897 Seventh, there was a document titled "HINO TRUCKS - Telematics Features 2015", which was created on 25 May 2017 by Dylan Hartley. 3898 This document was a version of a document created by employees of Directed and Dylan Hartley in his capacity as an employee of the JV Vehicle for the purpose of Directed seeking to win the business of Hino. Dylan Hartley first created the document in 2015 by modifying a Directed UD document. This document was intended to be provided by the JV Vehicle in 2015 to Hino, seeking its sign-off and acknowledgement that Hino would provide CAN Bus pickup locations and CAN codes to the JV Vehicle to enable it to develop such a unit. 3899 GRI.003.002.0021 is a document titled "HINO TRUCKS - Telematics Features 2015". This document is a version of a document created by employees of Directed and Dylan Hartley in his capacity as an employee of the JV Vehicle for the purpose of Directed seeking to win business of Hino. Dylan Hartley created the document in 2015 by modifying a Directed UD document. It was created by Dylan Hartley in his capacity as an employee of the JV Vehicle for the purposes of the JV Vehicle. This document was intended to be provided by the JV Vehicle in 2015 to Hino for its sign-off and acknowledgement that Hino would provide CAN Bus pick-up locations (locations to connect the telematics unit to the vehicle) and CAN codes to the JV Vehicle to enable it to develop such a unit. Any work done by Dylan Hartley in relation to this document was for use in negotiations with Hino to manage its expectations as to the capabilities of a telematics unit to be supplied to it. 3900 Directed says that this document is a copyright work that Directed and the JV Vehicle were the joint owners of copyright in and it contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its copyright rights and its right to sue for the misuse of its confidential information by deed of assignment to Directed. 3901 Eighth, there was an excel spreadsheet titled "Required UD Trucks - CAN Product". Its properties record that the document was a version of a document originally created on 9 November 2010 and last modified by Dylan Hartley on 25 May 2017. It is a copy of information provided by UD to Directed and sets out the vehicle parameters that Directed's telematics unit could read from CAN Bus and could calculate and derive from the CAN Bus data. It contained a note that its contents were confidential to the JV Vehicle. 3902 GRI.003.002.0025 is an Excel spreadsheet titled "Required UD Trucks - CAN Product". It is a copy of a document created by UD for Directed to provide telematics services for UD vehicles and sets out the vehicle parameters that Directed's telematics unit can read from CAN Bus and calculate and derive from the CAN Bus data. The difference between this document and the document received from UD is that Dylan Hartley colour coded the parameters, added the Gridtraq logo and inserted a confidentiality notice into this document. 3903 Directed says that it contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its rights to sue for the misuse of its confidential information by deed of assignment to Directed. 3904 Ninth, there were copies of FMS interface standard documents, which were provided by Mercedes to Directed, and not otherwise available in complete form in 2017, and that were accessed by Gridtraq from Directed. 3905 There is an excel spreadsheet titled "merc fms-standard-interface". This document was created on 3 April 2001 by Armin Keller of LogiCom GmbH and its properties record it was last modified by Dylan Hartley on 25 May 2017. The first page of this document appears to be a page extracted from the FMS standard, and the balance of this document appears to be someone's summary of information extracted from the FMS standard. 3906 There is a PDF document titled "merc fms_document" which appears to have been created on 11 September 2010. This is pdf document so no properties can be ascertained. This is a copy of the FMS standard. 3907 GRI.003.002.0023 and GRI.003.002.0024 are copies of FMS interface standard documents. These were provided by Mercedes to Directed, and not otherwise available in complete form in 2017. The Gridtraq parties assert that at least one of those documents is publicly accessible online. However, the evidence of Dylan Hartley only establishes that in October 2019 he was able to find one of the documents online. That does not establish that when he sent them and used them in May 2017 they were publicly accessible online. Further, the versions he sent in May 2017 had the added value as being versions provided by Mercedes to Directed. If they were readily available online in 2017 why did Dylan Hartley not obtain them from that source rather than using the versions provided by Mercedes to Directed? 3908 Directed says that these documents contained confidential information of both Directed and the JV Vehicle at the date of the commencement of the proceeding. It says that the JV Vehicle has assigned its copyright rights and its rights to sue for the misuse of its confidential information by deed of assignment to Directed. 3909 These documents were obtained by Dylan Hartley, and any work of authorship of him was undertaken, during the course of his employment by the JV Vehicle for the purposes of the business of Directed and the JV Vehicle. They should not have been copied and used for the benefit of a third party. 3910 These documents were not commercially available or obtainable. Dylan Hartley received them in his capacity as an employee of the JV Vehicle. Directed says that on cessation of his employment he should not have retained them or used them. 3911 Now Dylan Hartley apparently retained them following the cessation of his employment by the JV Vehicle. He claimed to have an entitlement to retain and use these documents following the cessation of his employment by the JV Vehicle under the terms of the DOCA. But I agree with Directed that no such documents were specified as being transferred, or any rights given to use or reproduce them, to Dylan Hartley, Allen Hartley, Davidson or any of the Gridtraq parties under the DOCA or in any correspondence sent to any of them from the administrators of the JV Vehicle. If it was intended that they be provided, as with other specifically identified materials and rights they would have been identified in the DOCA. 3912 Now in my view, much of the information comprising the IAL CAN Bus data and parameters and IAL data collection proposals was contained in documents that were created and provided to the Gridtraq parties by IAL employees and/or manually extracted from Isuzu vehicles by or on behalf of the Gridtraq parties. 3913 Further, to the extent that the Gridtraq parties had in their possession any information relating to Mercedes vehicles, all such information was contained in documents that had been provided to the Gridtraq parties by employees of the Daimler group in December 2011 or were publicly available when they came into their possession. 3914 Further, much of the information comprising the Hino CAN Bus data and parameters was contained in documents that were originally provided by Hino to the Gridtraq parties. But I do accept that some information was compiled on behalf of the JV Vehicle by Dylan Hartley with information that had been provided to him by Hino employees. 3915 Further, the UD vehicle parameters were created to enable the JV Vehicle to configure the telematics module that it would supply to UD. 3916 Further, as is apparent from the affidavit evidence of Dylan Hartley which I accept, most of the relevant CAN Bus data and vehicle parameters information was disclosed to Allen Hartley, Davidson and Dylan Hartley by entities other than Directed or they were created by Allen Hartley, Davidson and Dylan Hartley themselves on behalf of JV Vehicle. 3917 Now the Gridtraq parties assert that the CAN Bus data and vehicle parameters information that it is alleged by Directed was used by the Gridtraq parties has not been sufficiently identified. Directed disputes such a contention, but I largely agree with the Gridtraq parties in relation to such imprecision. I may hear further from the parties if this is necessary. 3918 Further, the Gridtraq parties assert that Directed has not established that the IAL CAN Bus data and parameters or IAL data collect proposals were confidential, and that they were available to be downloaded from publicly accessible websites or otherwise generally available to the public for purchase and in the public domain. It is therefore suggested that they lacked the requisite quality of confidence at the time they were used. Directed disputes these contentions. Directed relies on the evidence of Tselepis and Girgis to the effect that the IAL CAN Bus data and parameters or IAL data collect proposals were not publicly available as asserted by the Gridtraq parties. 3919 Further, the Gridtraq parties assert that any equitable obligation of confidence in respect of CAN Bus data and vehicle parameters information was not owed to Directed. The Gridtraq parties contend that some of the information relied on by Directed as confidential information was supplied by OEM manufacturers. But Directed says that that does not disqualify such information from being confidential or disentitle Directed from taking action for equitable relief. 3920 Further, Directed says that the Gridtraq parties have not sought to establish that the information provided by OEMs was in the public domain. Further, Directed says that it is necessary to consider documents incorporating OEM sourced information, and those consisting only of it. Documents incorporating OEM sourced information will self-evidently be confidential. For example, in the case of Hino vehicle parameters, each parameter supplied by an OEM had to be verified as part of the "sniffing process" to ensure it was accurate. Documents recording this work would be Directed's confidential information. 3921 Further, Directed says that the Directed/Gridtraq JV Shareholders Agreement to which Allen Hartley, Davidson and their companies were subject, contained confidentiality clauses which had enduring and post-contractual effect. 3922 Further, Directed also says that it is entitled to sue in respect of information received from OEM manufacturers. The remedies available include an injunction and equitable compensation. Although confidential information is not property and hence is not capable of being assigned, Directed says that confidential information can be passed on by one person to another, and the person to whom it has been imparted can take action to protect the information. 3923 Further, Directed says that many of the relevant documents were documents obtained by Dylan Hartley in his capacity as an employee of the JV Vehicle and retained by him after the cessation of his employment. Within his fiduciary duties was a duty to act in his employer's interests and not in his own interests at the expense of his employer and also a duty not to misuse confidential information. Dylan Hartley owed an obligation of confidentiality to the JV Vehicle by his employment by it. He owed duties of confidence as an implied term of his employment agreement with the JV Vehicle. Such duties survived the cessation of his employment. 3924 Further, Directed says that the Gridtraq parties' submission that relevant confidentiality clauses in the JV Vehicle Shareholders Agreement were extinguished by the Deed of Release are not borne out. 3925 Further, Directed refers to the Gridtraq parties' assertion that to the extent the Hartleys or Davidson owed any duties of confidence by virtue of the JV Vehicle Shareholders Agreement or Dylan Hartley's employment contract, those duties were owed to the JV Vehicle, not Directed, and the JV Vehicle is not a party to this proceeding. But Directed says that the property of the JV Vehicle in such confidential information as well as any causes of action and rights to sue for damages for the alleged misuses of that confidential information were assigned by Deed of Assignment in October 2019 between the JV Vehicle and Directed. On that point I agree with Directed. Whatever entitlement or right was vested in the JV Vehicle concerning the relevant confidential information and any claim or cause of action based upon misuse thereof was assigned by the JV Vehicle to Directed on 31 October 2019, in terms of any past or existing misuse as at that date. This assignment also transferred any IP rights and encompassed claims for copyright infringement. 3926 Further, the Gridtraq parties say that there is no evidence that they ever used the information comprising the IAL CAN Bus data and parameters or IAL data collect proposals. On this aspect I am in substantial agreement with the Gridtraq parties, particularly in the light of Dylan Hartley's evidence in chief. But Directed refers to the following evidence. 3927 Dylan Hartley gave evidence that Allen Hartley and Davidson on around 24 May 2017, whilst at the Brisbane Truck show and after the meeting with IAL representatives, asked him to locate and send to them all such documents he had retained from his time as an employee of the JV Vehicle. 3928 Dylan Hartley also says that Allen Hartley or Davidson asked him to consolidate and send them all electronic documents containing CAN Bus information that he had retained from the JV Vehicle. He says he searched the Lenovo laptop, external hard drive and other CDs/DVDs/USBs which he had retained or been provided following the cessation of the Directed / Gridtraq JV and that he located relevant documents. Directed says that the interest in doing so was to make use of the CAN Bus information in these documents. 3929 Further, Directed says that on 10 August 2017, Dylan Hartley sent two emails to another representative of the Gridtraq parties, Satya Parikh, and copied to Allen Hartley and Davidson, attaching various documents and requesting that they be updated. Directed made reference to GRI.003.002.0029, being a document titled "IAL Telematics additional data collect proposal", which was a copy of a document created for a proposal to IAL by the JV Vehicle to expand the collection of data from Isuzu vehicles for the purpose of providing additional telematics services or features to IAL that might be attractive to IAL customers. Reference was also made to GRI.003.002.0031, which is titled "Isuzu CAN Connector IAL Response AUG 2017 (WEBHOUSE_GRIDTRAQ).XLSX". Directed says that it is clear from the internal circulation of these documents, and Dylan Hartley's request that they be updated, and the fact that at least GRI.003.002.0031 had been updated as at "AUG 2017" by "WEBHOUSE_GRIDTRAQ", that these documents were useful to the Gridtraq parties and were modified and used by them in August 2017. 3930 Further, Directed says that Dylan Hartley admitted that the contents of the worksheets GRI.003.002.0030 were used by the Gridtraq engineering team to manually extract CAN Bus information from Isuzu vehicles. 3931 Further, Directed says that documents such as GRI.003.002.0011, GRI.003.002.0016, GRI.003.002.0017 and GRI.003.002.0030 were seized in the Gridtraq part of the premises during the execution of the search order. It says that this indicates that they were printed out and used for some purpose. 3932 I should say now that I am not at all convinced of Directed's use case, even if it be accepted that Dylan Hartley had in his possession JV Vehicle information that he should not have had. 3933 Let me at this point say something on the question of Directed's case concerning copyright. 3934 Now the Gridtraq parties claimed that whatever reproduction there may have been of any of the copyright works the subject of Directed's claims against the Gridtraq parties, such reproduction had been ephemeral. And on this aspect I am inclined to agree with the Gridtraq parties. But Directed says that the breadth of the conduct was extensive. It refers to the following matters. 3935 First, as to the Excel spreadsheets titled "Isuzu Gridtraq Programmable Parameters" and "Telematics_EngineParameters" which were created on 3 February 2014 and 21 March 2014 by Tselepis, they were last modified by Dylan Hartley on 25 May 2017. These are the default parameters set for Directed's telematics unit supplied to IAL as at February 2014 with modifications made since then in the version created on 25 May 2017. In one of the spreadsheets titled "2014 Truck Range: Engine & Driveline Parameters for Isuzu Telematics", there is a list of Isuzu models as of 2014 and includes for each model the relevant parameters that should be set to generate safety alerts for engine revolutions. They are used to calculate whether an alert should be generated where the engine is over-revving and to identify the range for optimal economic driving. The document includes a note inserted by Dylan Hartley whilst an employee of the JV Vehicle that it was confidential information of the JV Vehicle. 3936 Second, as to the Excel spreadsheet titled "Isuzu CAN Connector IAL Response AUG 2017 (WEBHOUSE_GRIDTRAQ)", this document is an IAL template document which was completed with CAN Bus data for a submission by Directed to IAL. The document outlines what signals were available when connecting a telematics unit to an Isuzu vehicle's CAN Bus and comparing the availability of those signals against the data IAL required. The properties of this version of the document record that it was last modified on 10 August 2017. Dylan Hartley admitted that the contents of the worksheets were used by the Gridtraq engineering team to manually extract CAN Bus information from Isuzu vehicles. 3937 Third, as to the spreadsheet "hino CANBUS info 20130717" I have dealt with this earlier and nothing more need be said. 3938 Fourth, as to the Excel spreadsheet titled "hino Copy of CAN BUS for 300 series" I have dealt with this earlier and nothing more need be said. 3939 Fifth, as to the PDF document titled "IAL Telematics additional data collect proposal" created in 2012, which was created by IAL and provided to Directed to assist in the provision of telematics services for Isuzu vehicles in 2012, on 10 August 2017, Dylan Hartley sent this document to a member of the Quantam engineering team. Clearly it was useful. 3940 Sixth, as to the document titled "Isuzu Telematics - Master Feature List and Specification", it was created on 2 February 2014 by Tselepis and its properties record it was last modified by Dylan Hartley on 1 June 2017. The document includes a note inserted by Dylan Hartley whilst an employee of the JV Vehicle that it was confidential information of the JV Vehicle. 3941 Seventh, as to the document titled "HINO TRUCKS - Telematics Features 2015" that was created on 25 May 2017 by Dylan Hartley. It is a version of a document created by employees of Directed and Dylan Hartley in his capacity as an employee of the JV Vehicle for the purpose of Directed seeking to win business of Hino. Dylan Hartley first created the document in 2015 by modifying a Directed UD document. This document was intended to be provided by the JV Vehicle in 2015 to Hino for its sign-off and acknowledgement that Hino would provide CAN Bus pick-up locations, that is, locations to connect the telematics unit to the vehicle, and CAN codes to the JV Vehicle to enable it to develop such a unit. 3942 Eighth, as to the Excel spreadsheet titled "Required UD Trucks - CAN Product", its properties record that this document was a version of a document originally created on 9 November 2010 and last modified by Dylan Hartley on 25 May 2017. The document includes a note inserted by Dylan Hartley whilst an employee of the JV Vehicle that it was confidential information of the JV Vehicle. Analysis 3943 Clearly, documents containing CAN Bus data and vehicle parameters were attached to three internal emails sent by Dylan Harley to others within the Gridtraq parties, the dates of which were 25 May 2017, 1 June 2017 and 10 August 2017. The occurrence of each of these CAN Bus data and vehicle parameters communications is not in dispute. 3944 Further, as to the CAN Bus data and vehicle parameters information that was in the possession of the Gridtraq parties, much of this appears to have been originally disclosed to them by OEMs during the operational period of the Directed / Gridtraq JV. 3945 Now the Gridtraq parties say that pursuant to the terms of the DOCA and Deed of Release, they were entitled to retain this information. But I disagree. 3946 Before proceeding further, it is convenient to set out in this section relevant provisions of the DOCA and Deed of Release. The DOCA was entered into on 29 March 2016 concerning the JV Vehicle. Parties to the DOCA included the Deed Administrators, Directed, Tselepis, Siolis, the Hartleys, Davidson and their respective entities. 3947 Clause 14.3 provided: (a) The Deed Administrators and the parties to this Deed will use their best endeavours to facilitate the transfer of the items as set out in Schedules D, E and F herein to specified members of the DOE Group or the Hartley Group at Completion. (b) The Deed Administrators, the Hartley Group and the DOE Group must, by no later than 4 April 2016 agree to a list of documents that are required to be provided by the parties at Completion in order to facilitate the transfers set out in paragraph (a). (c) In the event that the Deed Administrators do not have the requisite legal title, control or possession of the items listed in Schedules D, E and F herein, the obligation to facilitate the transfer or assignment will rest with the other parties to this Deed and the Deed of Release. (d) The Deed Administrators will determine in their absolute discretion whether a transfer under paragraph (a), and all other terms of this Deed, have been satisfactorily effectuated. (e) Without limiting the power of the Deed Administrators referred to in paragraph (d) above, in the event that the Deed Administrators form the opinion that some of the assets in clause 14 or Annexures D, E and F are unable to be transferred at Completion, and the receiving party does not waive the requirement for the transfer of the asset prior to the Completion Date, the Deed Administrators may, in their absolute sole discretion: (i) terminate the Deed and cause the Company to be placed into liquidation; or (ii) convene a meeting of creditors to pass a resolution to either terminate this Deed or implement a Deed of Variation under clause 18.2 herein. 3948 Relevantly, Schedule D provided: ITEM TRANSFEREE All STI manufactured OEM tracking units The Proposers and/or nominee Any OEM customer agreements available which are currently linked to STI manufactured units including: The Proposers and/or nominee • Gridtraq Isuzu service level agreement • OEM end user subscriber agreements • UD Customer Volvo activation forms All customer and account information currently available which is linked to STI manufactured units including: The Proposers and/or nominee • Customer and account information: client and vehicle details, vehicle history, usernames, email addresses • OEM public facing website artwork PST design files: a. http://isuzutelematics.com.au/ b. http://www.udtrucksfleetonline.com.au/ All customer SIM cards linked to STI manufactured units The Proposers and/or nominee All domain names as listed in Annexure E The Proposers and/or nominee All domain names as listed in Annexure F Hartley Group and/or nominee The "Gridtraq" business name and trade mark no. 1370062 "G Gridtraq Vehicle Tracking & Fleet Management" (device) Hartley Group and/or nominee All stock except for the STI manufactured OEM tracking units Hartley Group and/or nominee All customer agreements available which are not linked to STI manufactured units including: Hartley Group and/or nominee • Retail customer/subscriber agreements • Commercial customer/subscriber agreements • Transfer of the Audi Supply Agreement All customer and account information currently available which are not linked to STI manufactured units: Hartley Group and/or nominee • Customer and account information: client and vehicle details, vehicle history, usernames, email addresses All remaining uncollected debtors, except for any claims that the Company has released under this DOCA Hartley Group and/or nominee Optus SIM cards used for notification messaging Hartley Group and/or nominee All SIM cards not linked to STI manufactured units Hartley Group and/or nominee Google Map Licence currently in the name of Gridtraq Hartley Group and/or nominee Return of Lenovo Laptop, Docking station and Hard drive. Hartley Group and/or nominee Dylan Hartley personal effects: including rugby jersey, mobile phone number Dylan Hartley 3949 There was also on 29 March 2016 a Deed of Release, which I have described as the Deed of Release, entered into between the same parties as the DOCA, other than the Deed Administrators. 3950 Clause 2 provided for releases and said: Subject to and conditional upon Completion occurring under the DOCA and this Deed on the Settlement Date and to receipt in full of all payments due at Completion: (a) Siolis Holdings, Tselepis Holdings and the DOE Group and their directors each release and forever discharge the Company, Hartley, Bandit, Davidson, Dylan Hartley, Webhouse Group, Webhouse Software and their directors, employees, servants, agents, contractors and related bodies corporate from and against any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had arising out of their agreement to form the Company and to operate its business, the conduct of the affairs of the Company or the services provided by the Company, including but not limited to the claims made in the Proceeding and in relation to the provision of goods and services to the Company by Webhouse Group and Webhouse Software. (b) The Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors each release and forever discharge Hartley, Bandit and Davidson from any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had in respect of the loans made by Siolis Holdings and Tselepis Holdings to the Company or from any further claim for compensation or return of monies they may have but for this Deed from the Company, Hartley, Dylan Hartley, Bandit or Davidson. (c) The Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors and each of them will not make any claim in respect of the assets to be transferred by the Company to Hartley, Bandit, Davidson or Dylan Hartley pursuant to the DOCA. (d) Hartley, Bandit, Davidson, Dylan Hartley, Webhouse Group and Webhouse Software and each of them release and forever discharge the Siolis Holdings, Tselepis Holdings, the DOE Group and the Company and their directors, employees, servants, agents, contractors and related bodies corporate from and against any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had arising out of their agreement to form the Company and to operate its business, the conduct of the affairs of the Company or the services provided by the Company including but not limited to the claims made in the Proceeding or the provision of goods and services to the Company by DOE Group and in any way related to the employment by or the services provided by Dylan Hartley to the Company. (e) Hartley, Bandit and Davidson and each of them release and forever discharge the Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors from any claim, cause of action, liability, suit or demand which they had or but for this Deed may have had against for or in respect of their loans made by Hartley and Bandit to the Company or from any further claim for compensation or return of monies they may have but for this Deed from the Company, Siolis Holdings, Tselepis Holdings, the DOE Group and their directors. (f) Hartley, Bandit and Davidson, Webhouse Group and Webhouse Software and each of them agree not to make any claims against any customers of the DOE Group or the Company in respect of any matter the subject of the conduct of the business of the Company prior to the execution of this Deed or their disputes the subject of this settlement, except in respect of the collection of the remaining unpaid book debts of the Company to be assigned to Hartley and Bandit pursuant to the terms of the DOCA, which may be pursued by Hartley and Bandit. (g) Following Completion Hartley, Bandit, Davidson, Dylan Hartley, Webhouse Group and Webhouse Software and their directors and each of them will not make any claim in respect of the assets to be transferred by the Company to Siolis Holdings, Tselepis Holdings or the DOE Group pursuant to the DOCA. (h) For the purpose of this clause 2, claim(s) includes (as the context permits) a claim, notice, demand, action, proceeding, litigation, investigation, judgment, award, damage, loss (including economic loss), cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a Party to this Deed or otherwise. 3951 Clause 3 contained relevant restraints and provided: Subject to and conditional upon Completion occurring under the DOCA and this Deed on the Settlement Date and to receipt in full of all payments due at Completion: (a) and subject to sub-paragraph 3(b), Siolis Holdings, Tselepis Holdings, Hartley and Bandit release and discharge each other from any all restraints that may exist on their ability to pursue in the future any business the same as or similar to the Company's business and acknowledge and agree that any restraints that may presently exist will be of no further force or effect. (b) Notwithstanding sub-paragraph 3(b), Hartley, Bandit and Davidson agree not to, for a period of 90 days from the date of execution of this Deed, approach offering to provide or to provide vehicle tracking/telematics services or any other services the same as were provided by the Company to the following entities: (i) Isuzu Australia Limited and Isuzu dealers; (ii) Volvo Group Australia Pty Ltd (ACN 000 761 259) (including its business trading as UD Trucks) and dealers; and (iii) Hino Motor Sales Australia Pty Ltd (ACN 064 989 724) and dealers. (c) The Parties acknowledge and agree that: (i) the restraints in sub-paragraph 3(b) above are reasonable both in terms of scope and term and no greater than reasonably necessary to protect the respective legitimate business interests of the Parties; (ii) is reasonable in terms of the amounts paid and terms generally by way of settlement under the DOCA and this Deed; (iii) they will not in the future seek to assert that the restraint is unreasonable or for any reason unenforceable; and (iv) that should any Party seek to enforce the restraint, they acknowledge damages would not be an adequate remedy as opposed to an interlocutory injunction, and will not seek to submit to such effect in opposition to the granting of an injunction restraining them from acting contrary to the restraint. 3952 It has been debated between the parties as to whether clause 3(a) deals with any release on any restraint concerning the use of the JV Vehicle's confidential information. 3953 Let me make two points. 3954 First, the DOCA does not pass any entitlement to the Gridtraq parties in relation to the JV Vehicle's confidential information on the relevant devices given over to Dylan Hartley. The transfer contemplated by clause 14.3 of the DOCA and the stipulation of the items in Schedule D to the DOCA are of no assistance to the Gridtraq parties. Their terms do not stipulate the relevant information in question and nor can one imply the conferral of any such entitlement on the Gridtraq parties. And nor has any release been given by the JV Vehicle in relation to future use of such information. Clause 7.2 of the DOCA is of no assistance to the Gridtraq parties. 3955 Second, the Deed of Release and its terms are of no assistance to the Gridtraq parties on this aspect. Clause 2(c) is narrow in its terms. Further, clause 2(h) must be read in the context of the clause as a whole. Further, the clause 3 restraints provision adds little to the present issue. 3956 Let me turn to the question of usage. 3957 Now in my view, the preponderance of the evidence suggests that the Gridtraq parties have not used, nor have they had any need to use, any CAN Bus data and vehicle parameters information. They have not disclosed such information to any of the other respondents. 3958 Now Directed relies upon the occurrence of the CAN Bus data and vehicle parameters communications and the fact that the Gridtraq parties thereby possessed this information after the Directed / Gridtraq JV period to suggest that the impugned information was misused by the Gridtraq parties, particularly for the purposes of pursuing the various opportunities with IAL, Hino, the Daimler group and UD. 3959 But the evidence that Directed relies on to draw such inferences is generally the existence of some of those documents in printed hard copy form at the Brooklyn premises during the execution of the search and seizure, abstract statements about their purpose and typical usage and Girgis' belief that the information would be helpful and necessary for the Gridtraq parties to pursue various opportunities. 3960 So Girgis said that without various vehicle parameters, "it would not be possible to develop, test and operate the HAU8000" or another AV unit in the relevant Isuzu or Hino truck in combination with either the DIR6200 telematics unit, the RA7000 telematics unit or any third party's telematics unit, as the case may be. 3961 For example, he said "This document [GRI.003.002.0020] would provide some of the information necessary to integrate an AV unit to be supplied by the Hanhwa parties with either the existing telematics unit/s installed in a Hino 300 or 500 series vehicle, or the RA7000 Telematics Unit, if that was installed in a Hino 300 or 500 series vehicle.". 3962 And for example, he said "If I was trying to develop a telematics unit in 2017, having this document [GRI.003.002.0025] would be valuable and of great assistance because it would reduce the development time and effort that would be required to investigate and develop a new telematics unit.". 3963 But I agree with the Gridtraq parties that the forensic value of Girgis' investigation and therefore his evidence, at least in so far as it is concerned with the misuse of confidential information claims involving the Gridtraq parties, appears to have been limited by Directed's instructions. Girgis did not identify any actual use of any CAN Bus data or vehicle parameters by the Gridtraq parties. Further, he did not conduct any inquiries to identify the presence of any CAN Bus data and vehicle parameters stored on the Gridtraq parties' devices. Moreover, much of Girgis' evidence about the Gridtraq parties' alleged use of that information was speculative. Tselepis also engaged in speculation. 3964 Now Directed has made submissions about the many hours of manual and intellectual effort its engineers have expended to supplement the CAN Bus data and vehicle parameters that were provided to it by OEMs. In this regard, Directed relies upon Tselepis' statements that he did not create the UD vehicle parameters document in question and the information in it was provided by UD to Dylan Hartley, and at some point he would have provided it to Directed's CAN engineers who in turn would have verified its contents. Further, it relies upon Girgis' opinion that: an organisation in Directed's position would, before commencing development of an application to take advantage of that information, undertake tests necessary to confirm or verify the information. This would involve connecting an AV unit and telematics unit to the appropriate vehicle to receive genuine CAN Bus data. This testing would require the relevant vehicle, connectors and cables and software to interpret the raw CAN Bus data. 3965 But I agree with the Gridtraq parties that this evidence does not support the propositions and is hypothetical. 3966 Directed also relied on statements by Tselepis such as "some of the more important information [OEMs] do not provide, such as some accurate fuel usage data" and Girgis' opinion that "CAN Bus information, provided by the OEM customer, may not be sufficient to successfully develop or-deliver the application that the OEM customer has requested.". But again, there is a lack of precision in identifying which parts of the CAN Bus data and vehicle parameters are said to have been the product of Directed's CAN sniffing work. 3967 As to the process of verifying the subject information by CAN sniffing that Directed claimed to have carried out itself, this is not the subject of any evidence, as accepted by Tselepis during questioning by me: TSELEPIS: We would then take these documents and verified each and every parameter across every model. It doesn't mean that because they supplied us the document, we couldn't verify it. We could not – there were many occasions where, you know, there would be a CAN parameter that the manufacturer said that was there, but that actually wasn't there, once we sniffed the vehicle. We had to verify every single parameter and it's – and what it stated. … HIS HONOUR: Would that appear in documents or records? In other words, is there a worksheet or another document of Directed's - - - that I could see that would show some internal workings in relation to the parameters shown in this table? A: So, yes, your Honour. We – I would have to search for those documents, but we would then grab this document – because it was already filled out. We would then, for instance, highlight, if a – if that top parameter appeared, we would highlight that in green and say that's good to go. If the second parameter didn't appear, then we wouldn't highlight it and so forth, and then we would add to the document any new parameters we would find. Q: Well, you see, the trouble with your affidavit paragraph 118, it says that you created this document. That's not right? A: That's not right. Q: And yet there's no other document showing your point or your explanation you've now given to me, which is, well, you actually evaluated each of these parameters and internally made additions or deletions or just checked it off. I don't have any of that documentation before me, not that I've seen yet, anyway? A: No, we haven't provided those. Q: No. All right. 3968 Further, Directed asserts that even if the CAN Bus data and vehicle parameters were created by OEMs and provided by them to Dylan Hartley during the operational period of the Directed / Gridtraq JV, that does not derogate from the confidentiality of that information. But even if that proposition is accepted, it does not follow that confidentiality obligations were owed to Directed, as the Gridtraq parties point out. 3969 Further, Directed says that notwithstanding that certain CAN Bus information and vehicle parameters may be provided by an OEM customer to a supplier such as Directed for the purpose of it developing a telematics unit or providing telematics services to that OEM customer, such information is not readily available to the public and would be regarded as confidential and commercially valuable if obtained by that supplier. Now that may be correct. But I would not grant any injunction in favour of Directed in the present circumstances to preserve third party confidentiality, even if strictly such a possibility was theoretically open. 3970 Let me now turn to some specific matters. 3971 First, as to the suggestion that the documents containing IAL CAN Bus data and parameters were originally held out by Directed as its own creations, "purely back end, so no Directed customers have access to them", "not commercially available or obtainable unless they were provided by Directed" and "never provided" by Directed to the Gridtraq parties, during cross-examination Tselepis conceded that this information was instead not that. The Hartleys or Davidson had received those programmable parameters in early 2014 so they could do their job at the JV Vehicle in progressing the creation for IAL of a telematics unit, which is what occurred. Tselepis also conceded that he was not the author of at least one of those documents. 3972 Generally, the information comprising the IAL CAN Bus data and parameters and the IAL data collect proposals was contained in documents that were created and provided to the Gridtraq parties by IAL employees in March 2014 or manually extracted from Isuzu vehicles by or on behalf of the Gridtraq parties. 3973 Further, as to the documents titled "IAL Telematics additional data collect proposal", the evidence suggests that the original document was authored by the IAL engineering team and that various iterations of the same document were circulated within the JV Vehicle thereafter. The contents of documents titled "IAL Telematics additional data collect proposal" are identical to those of a document that was originally provided by IAL to Directed in 2012 and forwarded to Dylan Hartley by Meneses on behalf of Directed. Dylan Hartley's receipt of this information was legitimate. At that time, the JV Vehicle was involved in supplying telematics solutions to IAL. 3974 Further, there is no evidence that the Gridtraq parties ever used the information comprising the IAL CAN Bus data and parameters or IAL data collect proposals. Further, the Gridtraq parties have never supplied any telematics products to IAL. 3975 Second, the information comprising the Mercedes data and specifications requests is contained in documents which were originally provided by Mercedes to Directed in February 2017, and then forwarded by Meneses to Hanhwa. But the Gridtraq parties never received those documents. 3976 Further, to the extent that the Gridtraq parties had in their possession any information relating to Mercedes vehicles, such information was contained in documents that had been provided to the Gridtraq parties by employees of the Daimler group in December 2011 or were publicly available when they came into their possession. 3977 Now Directed seeks to infer from the Gridtraq parties' possession of those documents in 2017 that the Gridtraq parties misused the information contained therein to pursue the Mercedes Sprinter opportunity. But Directed only relied upon Girgis' opinion about the potential use of this material by the respondents, the probative value of which was minimal. 3978 Third, it seems clear that some of the information comprising the Hino CAN Bus data and parameters was contained in documents that were originally provided by Hino to the Gridtraq parties in June 2014, and the balance was compiled on behalf of the JV Vehicle by Dylan Hartley, with information that had been provided to him by Hino employees. 3979 Directed asserted that one of the documents containing Hino CAN Bus data and parameters was its own creation. But during cross-examination, Tselepis conceded otherwise. The document had originally come from Hino via Gibson to Dylan Hartley. 3980 Further, another document containing Hino CAN Bus data and parameters was also originally created by Hino and provided via Gibson to Dylan Hartley. 3981 Further, Directed claimed that the information comprising the Hino CAN Bus data and parameters was the product of its own CAN sniffing efforts. But Tselepis conceded in cross-examination that whatever work was done in order to create those documents was done by Hino Japan, not Directed. 3982 In summary, Directed has not adduced any probative evidence to establish that the Gridtraq parties have impermissibly used Hino CAN Bus data and parameters in connection with their telematics products. Moreover, the probative value of Girgis' opinion was minimal on this aspect. 3983 Fourth, Directed said that the documents containing UD vehicle parameters were created by Tselepis for Directed to provide telematics services to UD and that the information contained therein was manually collected from the CAN, using the CAN sniffer tool and decoded, to understand what were the signals and what they meant. But ultimately Tselepis conceded that the documents were not created by him and that the information contained in those documents was provided to Dylan Hartley by UD. The UD vehicle parameters were created for the purpose of the JV Vehicle so that it could configure the telematics module that it would supply to UD. 3984 I agree with the Gridtraq parties that Directed has not adduced any evidence to establish that the Gridtraq parties have used UD vehicle parameters in connection with their telematics products. Other matters 3985 Let me make some other points. 3986 First, there is no evidence that the Gridtraq parties ever used any of Directed's alleged copyright works or confidential information in the development of products and services to compete with Directed, let alone obtained any springboard benefit. 3987 Second, Directed has attempted to characterise the Gridtraq parties' possession of CAN Bus data and vehicle parameters in 2017 as the product of Dylan Hartley surreptitiously taking those documents after his employment with the JV Vehicle. Now the Gridtraq parties were not entitled to do this. But I think this was done on a mistaken view of their legal position. 3988 Third, Directed points out that Dylan Hartley himself had marked some of those documents as confidential during his time in the Directed / Gridtraq JV. But whether Dylan Hartley considered this information to be confidential during that time is a different question to whether he continued to do so after the Directed / Gridtraq JV had ended. 3989 Fourth, in my view Dylan Hartley should not have been in possession of the material referred to in his affidavit of 1 October 2019 at [202] to [205]. Neither he nor the Gridtraq parties were entitled to that confidential information of the JV Vehicle, the claim in respect of which has now been assigned to Directed. In this respect, I do not accept his general assertion in [75] concerning an entitlement to information stored on the devices. But I am not sure where any of this takes Directed given Dylan Hartley's statement at [209] which in my view has not been successfully impugned. But I will give Directed an opportunity to make further submissions to me on this aspect. 3990 Finally, Directed's reliance on a supposed acknowledgement by the Gridtraq parties that the relevant information could be useful conflates abstract usefulness with actual use. There is no evidence of actual misuse by the Gridtraq parties. Conclusion 3991 As indicated in these reasons, Directed's case against Meneses, OE Solutions, Mills and the Hanhwa parties has largely succeeded. Contrastingly, Directed's case against the Gridtraq parties has largely failed. 3992 Now the present matter only proceeded on the question of liability and limited aspects of relief concerning the quantification of the secret commissions payments and also injunctive relief. But as to these aspects, let me say the following. 3993 First, I am not in a position to make precise orders on the quantum of the secret commissions payments and will need to hear further from the parties. 3994 Second, on the question of any injunctive relief, given the time that has elapsed and the re-ordering of the affairs of various parties, I am not presently satisfied that any injunctive relief is necessary to protect Directed's confidential information or copyright material. There does not seem to me to be any real threat of any further misuse of such information or infringement of copyright, but I will hear further from the parties on this aspect. 3995 Now after the parties have read my reasons, I will give them an opportunity to make further submissions concerning any findings that they say I should have made but have not yet made. Further, in relation to the conclusions that I have specified but where the parties say that the relevant factual findings supporting such conclusions are not clear from my reasons, I will give the parties an opportunity to raise such matters, which queries may be readily answered by identifying relevant paragraphs of my reasons. Now this might all seem an unusual course to take, but this is an unusual case given the manner in which the parties presented their cases, the sheer volume of material and the breadth of the allegations made. 3996 Ultimately, I will make limited declarations to reflect my reasons and also orders sending out to special referees particular issues on relief concerning the quantification of damages and any anterior technical causation questions. 3997 But before doing so, I may refer Directed and the Gridtraq parties to mediation by an external mediator in an endeavour to resolve any outstanding matters. As I say, Directed's case against the Gridtraq parties has largely failed, but there is one issue on which it had success. It seems to me that there is a reasonable chance that these parties in particular could resolve any further disputes including on the question of costs. I will say something about costs in a moment, but before doing so, let me summarise my principal findings. 3998 First, Directed's case against Meneses and OE Solutions has substantially succeeded. In this respect in terms of the principal claims: (a) Meneses breached the terms of his employment agreement, his statutory duties, his fiduciary duties and his equitable duties of confidence; (b) Meneses and OE Solutions wrongfully received the secret commissions payments and are obliged to disgorge them; (c) Meneses and OE Solutions engaged in the OE Solutions conduct; (d) Meneses engaged in the diversion of opportunities conduct; and (e) without limiting the foregoing, Meneses misused Directed's confidential information and infringed its copyright. 3999 Second, Meneses' cross-claim against Directed fails. 4000 Third, Directed's case against Mills similarly succeeded on analogous claims, save the secret commissions conduct, although it must be said that his egregious conduct was not as extensive as the conduct of Meneses. But I should also say for completeness that I have not found that either Meneses or Mills induced a breach of the Hanhwa Korea Agreement. They did not have the relevant intent. 4001 Fourth, Directed's case against the Hanhwa parties has in substance succeeded. In this respect in terms of the principal claims: (a) The Hanhwa parties were accessories to and/or knowingly assisted Meneses' and Mills' breaches of statutory and fiduciary duties and also equitable duties of confidence; (b) the Hanhwa parties are liable in some respects concerning the payment of the secret commissions to Meneses/OE Solutions; (c) the Hanhwa parties misused Directed's confidential information and infringed its copyright; (d) the Hanhwa parties induced breaches by Meneses and Mills of their employment agreements; (e) Hanhwa Korea and/or Leemen Korea breached certain terms of the Hanhwa Korea agreement; and (f) Lee committed the tort of inducing the breaches of the Hanhwa Korea Agreement and so too did Hanhwa Aus. 4002 Fifth, Directed's case against the Gridtraq parties has largely failed save for the claim concerning the misuse of the JV Vehicle's confidential information concerning CAN Bus data and vehicle parameters. 4003 On the question of costs, my tentative view is that Directed should have its costs to date against Meneses, OE Solutions, Mills and the Hanhwa parties. But as between Directed and the Gridtraq parties, the Gridtraq parties should have a substantial part of their costs paid by Directed. The Gridtraq parties have been successful in defending the principal claims against them. But I will hear further from the parties at the appropriate time on these matters. I certify that the preceding four-thousand-and-three (4003) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate: Dated: 24 November 2022 ANNEXURE A COVID-19 Protocol for the Examination of Witnesses by Deposition pursuant to the orders of Justice Beach made on 30 March 2020 and 28 April 2020 1. The context of this COVID-19 Protocol 1.1 The examination of the balance of the trial witnesses is to be by deposition, pursuant to ss 46(a), 47A, 47D and 47E of the Federal Court of Australia Act 1976 (Cth) and Division 29.2 of the Federal Court Rules. 1.2 The depositions are to take place by video link and before a court appointed examiner. They are to be video recorded. 1.3 This COVID-19 protocol provides guidelines, inter-alia, on: (a) how the examination of witnesses will be undertaken; (b) contact with and between witnesses during cross-examination; and (c) technical information for the setup of the examinations to assist the parties in ensuring that their systems are compatible. 2. Appointment of an Examiner 2.1 Mr Edward Heerey QC is appointed as the examiner (the Examiner). 2.2 The Examiner is to be provided with access to the online hearing book managed by Law in Order. 2.3 The Applicant is to work with Law in Order to ensure that any set up required by the Examiner meets with the Technical Requirements set out in paragraph 8. 3. Examination of witnesses 3.1 The Examiner must allow counsel for each party, together with their instructing lawyers, to attend any examination by video-link. 3.2 Before each examination commences, the Examiner must ensure that the witness: (a) is made aware that the entire deposition will be recorded and provided to the trial judge; and (b) swears an oath or makes an affirmation, administered by the Examiner, which can be done via the video-link. 3.3 For that purpose, the Examiner is authorised to administer an oath or affirmation. 3.4 During each examination, a witness must be in a quiet room with a lawyer present. That lawyer may be a member of the firm acting for a party, notwithstanding that the lawyer acts for the employer of that witness or party that has retained that witness to give evidence as an expert witness. Unless directed by the Examiner, that lawyer is not permitted to engage with the witness, but is there solely to ensure that there is not: (a) anybody else within or in close proximity to the room communicating with the witness verbally, by passing notes or using sign language; or (b) anybody else, from a remote location, communicating with the witness by any other means such as telephone, text, email or via any online instant messaging service. 3.5 The only time a third party, other than the lawyer just referred to, is permitted to enter the witness' room during deposition is if the witness is experiencing technical difficulties and requires assistance in resolving the issue. 3.6 In the event that an evidentiary objection is raised by counsel during an examination: (a) the objecting counsel must unmute their microphone and raise their objection clearly; and (b) if the issue would ordinarily be discussed without the witness in the room, Law in Order shall be instructed to cease audio transmission to that witness whilst the issue is resolved. The witness is not required to leave the room where they are located. 3.7 The procedure for dealing with objections shall otherwise proceed in accordance with rule 29.18 of the Federal Court Rules. 3.8 When counsel requires a document to be put to a witness, it must be called up on the screen electronically so it is recorded in the deposition video. 3.9 When counsel call for a document to be presented to a witness, they must: (a) clearly identify the unique document ID number of that document; and (b) provide the hard copy court book reference (when available) for the benefit of the trial judge and for the transcript. 3.10 All parties participating in the examination must, when they are not speaking to the Examiner or to a witness, have their video conference facilities on mute to avoid ambient noise disrupting the course of the examination. This will also avoid any unintentional information discussed within party groups being heard by others attending the examination. 3.11 For the examination, counsel for the parties and the Examiner shall each be attired in either a business suit with a buttoned shirt collar and conservative tie (in the case of males) or other conservative business attire (in the case of females). Robes should not be worn. 3.12 Once a witness has completed their deposition, they must leave the video conferencing facility immediately and must not communicate what occurred during the deposition with any other witness who is yet to be examined in the proceeding. 3.13 Each witness is to be reminded by the party calling them that they are not permitted to discuss their examination with any other witness in the proceeding until the relevant party has closed their case and has expressly communicated this to the Examiner. In that regard, the same rules effectively apply as they would if a witness were giving evidence in Court. 3.14 Save as aforesaid, the conduct of each examination shall be governed by rule 29.16 of the Federal Court Rules. 4. Translators 4.1 In the event that a translator is required to interpret any line of questioning to a witness, that translator must be: (a) a NAATI certified translator in the relevant language being interpreted; and (b) located in a separate video-conferencing facility, or at least be located in a separate room at the same facility, to the witness being examined. 4.2 At the conclusion of the examination of a witness using a translator, the evidence must be certified by that NAATI certified translator by the provision of a certificate to the Examiner. This certificate must include the translator's: (a) Full name; (b) Address; and (c) Qualification(s). 4.3 The Examiner will then provide this certificate to the Registrar of the Federal Court, with one additional copy emailed to the trial judge's chambers, at the time the video recordings are submitted. 4.4 Each party may also retain their own interpreter who can be provided with access to the examinations and can listen to the translations being provided to a witness for the purpose of verifying that what is being translated is being done so accurately. 5. Restriction of documents 5.1 The recordings of the examination and any transcript thereof are to be treated as "restricted documents" for the purposes of Part 4 of the Access to Documents and Transcripts Practice Note (GPN-ACCS) dated 25 October 2016. A person who is not a party to this proceeding is not entitled to inspect them without leave of the Court pursuant to rule 2.32(4) of the Federal Court Rules, save as provided above in relation to translators. 6. Format and recording of examination 6.1 All video recordings made of the depositions must be in a High Definition format. 6.2 The video recordings are to display: (a) a split screen of the witness being examined on the left side and the document being presented to the witness on the right side; and (b) the examiner in chief, the cross-examiner or re-examiner (as the case may be), who will appear in a small window within the witness view. 6.3 The Examiner is not to be visible on the recording but audio will be captured. 6.4 The video recordings encompassing all examination, cross-examination and re- examination are to be provided to the Registrar of the Federal Court, with one additional copy sent to the trial judge's chambers, and will be considered to be the full examination of each witness together with any document put to the witness during the examination which is treated as tendered. 7. Setup of video-conferencing facilities 7.1 Each party will be responsible for the setup of the required technology at the premises of their choosing to ensure that it accords with the Technical Requirements set out in paragraph 8. 7.2 Law in Order, the eTrial provider can assist all the parties with the set-up in their offices. Any such request should be communicated to ehearings@lawinorder.com. 7.3 Law in Order will undertake a test of the video-link and deposition system no earlier than 30 April 2020. All parties must ensure that their set up is completed by 29 April 2020 and must make themselves available to Law in Order to complete any such testing. 8. Technical Requirements 8.1 Each party should have the following computer set up with two monitors/screens: (a) one monitor solely for the video link which should be divided into four views as follows: (i) Top left - counsel undertaking the examination should always be visible; (ii) Top right - the witness should always be visible; (iii) Bottom left - the Examiner should always be visible; and (iv) Bottom right - flexible viewing depending on any other counsel speaking, for example if an objection is raised, (b) a separate monitor for the document presentation from Law in Order. 8.2 Each party should set up a dedicated location within their chosen facility where counsel can sit/stand and can be clearly heard and seen by the Examiner, the witness and the other parties in attendance. 8.3 Law in Order is to run this hearing via BlueJeans. In this respect: (a) Users can connect to the hearing via most video conference facilities or can connect using a computer. (b) If connecting using a computer, the requirements for BlueJeans is that all users must: (i) be running on Microsoft Windows 7 or 10, MacOS 10.11+; (ii) have a web-browser installed such as Internet Explorer, Google Chrome or Safari; and (iii) have access to an internet connection with a minimum bandwidth of 3mbps. (c) For the most up-to-date requirements for BlueJeans, the technical information is available on their website at: https://support.bluejeans.com/s/article/BlueJeans-System-Requirements. (d) If anybody has any concerns regarding the capability of their technology, they are to contact Law in Order at eHearings@lawinorder.com. 9. Transcripts 9.1 Real time transcript can be provided by making such a request through Law in Order. 9.2 Law in Order will also provide the transcript at the end of each day. Law in Order may provide this service themselves or may outsource it to Auscript. 10. Other matters 10.1 Any party or the Examiner may apply to the trial judge at any time on short notice: (a) to vary any aspect of this COVID-19 protocol generally or in respect of a particular examination; (b) seeking directions concerning any aspect of any examination; (c) for an evidentiary ruling, where the absence of an immediate answer would otherwise significantly disrupt the conduct of an examination; or (d) for any order or sanction against a party, witness or legal adviser who is not acting reasonably and in good faith in ensuring that this COVID-19 protocol is implemented in accordance with both its terms and spirit. 10.2 Such an application may be made by email addressed to the trial judge's chambers by sending such an email to both associate.beachj@fedcourt.gov.au and ea.beachj@fedcourt.gov.au. 10.3 For the avoidance of doubt, the alternative orders B made by the trial judge on 30 March 2020 shall continue to apply save as expressly modified by the trial judge's orders of 28 April 2020 incorporating by reference this COVID-19 protocol. ANNEXURE B Extract of orders of 30 March 2020 (Alternative Orders B) being orders 4 to 20: 4. The examination of the witnesses for the balance of the trial who are based in Australia be by deposition before an Examiner appointed by the Court pursuant to s 46(a) of the Act and Division 29.2 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). 5. The Examiner shall be a senior barrister practising at the Victorian Bar to be agreed by the parties. Failing such agreement, the Examiner shall be a senior barrister nominated by Justice Beach. 6. The fees and expenses of the Examiner shall be in the cause, but in the first instance be paid by the Applicant. 7. The examination of the witnesses be permitted to be conducted by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) (the Act). 8. Pursuant to s 47E of the Act, a witness who is to give testimony by video link be permitted to swear an oath or make an affirmation administered by the Examiner either: (a) by video link; or (b) through the oath or affirmation being administered by another person authorised by Justice Beach who is present at the place the person giving the testimony is located. 9. If, in the course of examination or the appearance of a person by video link it is necessary to put a document to that person, a copy of the document be transmitted to that person pursuant to s 47D of the Act. 10. By 20 April 2020 the Applicant provide to the Examiner and to the other parties a note of the order in which its remaining witnesses are proposed to be called for examination and by 24 April 2020 each of the respondents provide a note of the estimated time required for cross-examination of each such witness. 11. The Examiner must: (a) not later than 5 business days before the time appointed, appoint a date, estimated time and place for the examination of each witness in the period 4 May 2020 to 29 May 2020; and (b) give notice of the place and time appointed to the parties. 12. The Examiner must permit a representative of each party and any lawyer representing the party to attend the examination of the witnesses by video link. 13. The Examiner is to be provided with access to the documents stored in the Law in Order platform used for the trial of this proceeding to date for the purposes of the examination. 14. The examination shall be conducted pursuant to rules 29.16 and 29.18 of the Federal Court Rules. The Examiner is authorised to administer any oath or affirmation. 15. The examination must be video recorded in high definition. 16. The recordings of the examination must be submitted to the Registrar of the Court and stand as the oral examination in chief (as may be permitted by the Examiner), cross-examination and re-examination of each of the relevant witnesses for the trial. 17. The Examiner must provide any exhibits tendered during the examination to the Registrar of the Court. 18. The evidence given by any witness in a language other than in English, which is translated during the examination, shall upon the conclusion of such evidence be certified by a NATA qualified translator (translator) with a certificate provided by that translator to the Examiner as a correct translation. The certificate must also state the translator's full name and address and the translator's qualifications for making the translation. The certificate must be submitted by the Examiner to the Registrar of the Court. 19. There be liberty to apply to Justice Beach to determine any disputes about the conduct of the examination. 20. For the avoidance of doubt, the recordings of the examination and any transcript thereof are to be treated as "restricted documents" for the purposes of Part 4 of the Access to Documents and Transcripts Practice Note (GPN-ACCS) dated 25 October 2016. A person who is not a party to this proceeding is not entitled to inspect them without leave of the Court pursuant to rule 2.32(4) of the Federal Court Rules. Extract of orders of 28 April 2020 being orders 6 to 13: 6. The examination of the balance of the trial witnesses commencing on 4 May 2020 pursuant to Alternative Orders B of the orders made by Justice Beach on 30 March 2020 be conducted in the form of video-linked and recorded depositions in accordance with the COVID-19 protocol annexed to these orders. 7. The examination be conducted in respect of all witnesses called by the parties regardless of whether those witnesses are located within or outside Australia. 8. The order of the examination of the Respondents and their witnesses shall be: (a) the Hanhwa Parties, save for their witnesses based in South Korea; (b) the First and Sixth Respondents; (c) the Seventh Respondent; (d) the Tenth, Eleventh and Thirteenth Respondents; (e) the Hanhwa Parties' witnesses based in South Korea. 9. Save where a Respondent intends to await the close of the Applicant's case prior to deciding whether or not to call any witness, in which case such Respondent shall have two days from the service of the Applicant's Notice of Closure of Case as referred to in Order 11, by 1 May 2020 each of the Respondents provide to the Examiner (as identified in the COVID-19 protocol) and to the other parties a note of the order in which its witnesses are proposed to be called for examination in accordance with Order 8 and by 7 May 2020 the Applicant provide a note of the estimated time required for cross- examination of each such witness. 10. Prior to closing its case, the Applicant is to file and serve a list of all documents on which it intends to rely which have not yet been tendered or introduced into evidence (Applicant's Tender List). Any objection by any of the Respondents to such tender shall be notified by the objecting party to the Applicant within 5 business days of receipt of the Applicant's Tender List and shall be determined by the trial judge prior to the parties making their oral closing submissions. 11. Following the completion of the examination of all of the Applicant's witnesses and the filing of the Applicant's Tender List, the Applicant is to send an email to the Associate to the trial judge, copied to the Respondents, advising that the Applicant has closed its case (Applicant's Notice of Closure of Case). 12. Two business days following the sending of the Applicant's Notice of Closure of Case, the Sixth Respondent and the Seventh Respondent file and serve any amended defence and further affidavit evidence on which they intend to rely. 13. The examination of the Respondents' witnesses shall commence following the sending of the Applicant's Notice of Closure of Case. ANNEXURE C ANNEXURE D Summary of payments made by or for and on behalf of Hanhwa Enterprise, Hanhwa Korea, Leemen Korea and Hanhwa Aus to Meneses and/or OE Solutions The table below was prepared on 24 October 2019 based on Annexures A and B to the Defence of the Hanhwa Parties dated 3 October 2019, and various bank statements for the accounts referred to below that have been produced by the Westpac Banking Corporation in response to subpoenas issued in the proceeding. * All amounts in "amount paid" column are USD except for the last 3 rows which are AUD ** Account "WBC '527" means account […] in the name of Johnny Meneses. Account "WBC '399" means account […] in the name of OE Solutions Pty Ltd ANNEXURE E BREACH OF CONFIDENCE | COPYRIGHT TABLE Categories of confidential information Internal info Internal Directed information not known to third parties (e.g. financial affairs, business and products (existing and proposed designs), and/or or commercially valuable information) EMP1 Mills and/or Meneses only - The information falls within the meaning of Confidential Information: clause 20(b) of the Meneses Employment Agreement and of the Mills Employment Agreement HE / HK1 Hanhwa Korea and Leemen Korea only - The information is confidential pursuant to section 9 of the Hanhwa Enterprise Agreement or the implied terms of the Hanhwa Korea Agreement 3rd party The information was provided to Directed by manufacturers on the basis, whether express or implied, that its confidentiality be maintained Customer Directed's information was shared with, but limited to and for the exclusive benefit of, the customer Categories of misuse of confidential information Equity The confidential information has been used for a purpose plainly inconsistent with the confidence contained in it EMP2 Mills and/or Meneses only - The use is an apparent breach by Meneses and/or Mills of clause 20 of the Meneses Employment Agreement and/or the Mills Employment Agreement 182/183 Mills and/or Meneses only - The use is an apparent breach by Meneses and/or Mills of fiduciary duties and/or s 182 or 183 CA 79 The party has been involved in a contravention by Mills and/or Meneses of s. 183 CA, pursuant to s.79 CA Hanhwa parties Hanhwa parties (including Lee) only HE / HK2 Hanhwa Korea and Leemen Korea only - Breach of clause 6 of the Hanhwa Enterprise Agreement or the implied terms of the Hanhwa Korea Agreement Seized Unauthorised use is to be inferred from the location of the documents - seized from respondents when not properly in possession Item No. Item Description Breach of confidence Copyright Confidential Unauthorised use Origin Author(s) Reproduction and/or Authorisation 1 Directed's computer drives 1.1 Red Hard Drive Internal info Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties), Hanhwa parties, HE/HK2, Seized N/A N/A EMP1 1.2 USB Conduct As for Item 1.1 As for Item 1.1 N/A N/A 1.3 Seagate 2TB Hard Drive As for Item 1.1 but not Mills 1.3.1 K drive * See item 1.4 1.3.2 Q drive – Directed's quality assurance documents as well of all the company policies, procedures and forms As for Item 1.1 As for Item 1.1 but not Mills N/A N/A 1.3.3 Directed's entire telematics customer portal and website including all underlying code, images and user documentation Internal info As for Item 1.1 but not Mills N/A N/A EMP1 3rd Party 1.3.4 Various versions of the firmware for the Directed Telematics Unit As for Item 1.1 As for Item 1.1 but not Mills N/A N/A 1.3.5 Files on a range of matters including telematics created by employees of Directed – 4 May Affidavits of: Internal info As for Item 1.1 but not Mills N/A N/A Tsepelis 6 at [24] and [25] EMP1 Calleja 3 at [5] HE/HK1 Pieries 3 at [5] Jaffe 3 at [5] Dane 4 at [12] Floudas 4 at [8] Pieris 2 at [16] 1.3.6 Directed Specification *See Item 3 1.3.7 Installation instructions *See Item 5.13.1 1.3.8 Line drawings * See Item 7 1.4 K drive and its contents Internal info, EMP1, HE/HK1, 3rd Party, Customer As for Item 1.1, but not Mills generally (The contents relied on for copyright case are referred to in items 1.4.1 to 1.4.13 below) 1.4.1 PPAP and its contents * See Item 5 As for Item 1.1 1.4.2 Installation instructions * See Item 5.13.1 As for Item 1.1 1.4.3 Directed Specification * See Item 3 Hanhwa parties only 1.4.4 Line drawings for product parts * See Item 7 As for Item 1.1 1.4.5 DE01_TruckTracker_Specification_Rev0.1 (SEAG.0066.0001) created by Vardon in 2015 Internal info As for Item 1.1, but not Mills Vardon EMP1 1.4.6 DE01 Diagnostics Program created by Vardon between 2014 and 25 November 2016 (Vardon 4 May 2020 [11]-[14]) As for Item 1.4.5 As for Item 1.1, but not Mills Vardon 1.4.7 CAN Monitor Tool with the filename "UTIL09_VectorTool.exe" created by Vardon in 2014 and 2015 (Vardon 4 May [18]-[20]) As for Item 1.4.5 As for Item 1.1, but not Mills Vardon 1.4.8 CAN Data Analyser with the filename "UTIL10_Data_Analyser.exe" created by Vardon between 2014 and 2 March 2016 (Vardon 4 May [21]) As for Item 1.4.5 As for Item 1.1, but not Mills Vardon 1.4.9 The firmware for the Directed telematics created for the Directed Telematics Unit created by David Vardon in the period 2014-2017 (Vardon 4 May [27]-[29]) As for Item 1.4.5 As for Item 1.1, but not Mills Vardon 1.4.10 DEF TEL 08 Dealer Changeover Process Flowchart.docx (SEAG.0007.0001) created by Calleja on 26 July 2016 As for Item 1.4.5 As for Item 1.1. but not Mills Calleja 1.4.11 Business Opportunities Matrix.xlsx (SEAG.0057.0001) created by Jaffe on 10 February 2017 As for Item 1.4.5 As for Item 1.1, but not Mills Jaffe 1.4.12 DEF TEL 09 Compound Changeover Process Flowchart.docx (SEAG.0008.0001) created by Calleja on 2 August 2016 As for Item 1.4.5 As for Item 1.1, but not Mills Calleja 1.4.13 Isuzu Dealer Fit Process Flowchart.docx (SEAG.00010.0001) created by Calleja on 23 November 2016 As for Item 1.4.5 As for Item 1.1, but not Mills Calleja 2 Diversion of opportunities N/A N/A (Meneses, Mills, Lee, Hanhwa parties) 2.1 SuperDAVE Internal info Equity, EMP2, 182/183, 79 (Mills, Meneses and Hanhwa parties), Hanhwa parties, HE/HK2, Seized N/A N/A EMP1 HE/HK1 Customer 2.2 Isuzu D-MAX Internal info Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties), Hanhwa parties, HE/HK2, Seized N/A N/A EMP1 2.3 Hanhwa 6160 Internal info As for Item 2.2 but not Mills N/A N/A EMP1 Customer 2.4 HINO As for Item 2.1 As for Item 2.2 but not Mills N/A N/A 2.5 ICL As for Item 2.2 Equity, EMP2, 182/183, 79 (Meneses, Hanhwa parties), Hanhwa parties, HE/HK2 N/A N/A 3 Directed Specification See reasons for judgment 3.1 The Directed Specification Internal info (save for supply to Hanhwa Korea and Leemen Korea), EMP1, HE/HK1 Equity, EMP2, 182/183, 79, Hanhwa parties, HE/HK2, Seized Vardon Hanhwa parties, Lee 4 CAN information and vehicle parameters See reasons for judgment (Meneses, Lee, Hanhwa parties) 4.1 Libraries of data and information compiled by Directed to interpret CAN bus data from vehicles, and associated information and customer requests, with respect to: Internal info Equity, EMP2, 182/183, 79 (Meneses, Hanhwa parties), Hanhwa parties No valid claim Isuzu EMP1 Mercedes 3rd Party / Customer HINO UD Trucks 4.2 Vehicle parameters Internal info As for 4.1 No valid claim EMP1 3rd Party / Customer 5 PPAP and its contents: Internal info, EMP1, HE / HK1, 3rd party, Customer Equity, EMP2, 182/183, 79, Hanhwa parties, HE / HK2, Seized Origin of document(s) identified below Mills is the compiler See reasons for judgment DIR6200 [DIR.DIRS.0327.0001] 5.1 Table of Contents (page 2) TechAudio Mills 5.2 Section 1 - Part submission warrant (page 3) TechAudio Mills 5.3 Section 2 – Engineering and Appearance Approval (page 5) Directed Mills 5.4 Section 3 – Sample Product (Master Sample) (page 7) TechAudio Mills 5.5 Section 4 – Design Records (page 9) Directed or TechAudio Mills 5.5.1 Master Feature List (page 10) Hanhwa + Directed Hanhwa employee made content Directed Photographs #2 Mills rearranged the layout Directed employees corrected a draft version 5.6 Section 5 - Dimensional Results (page 28) TechAudio format Mills Directed information 5.7 Section 6 - Test Results (page 33) Directed Mills 5.7.1 Drawings (page 43; 46) Hanhwa Hanhwa 5.7.2 Software version (page 50 – 55) Hanhwa Hanhwa 5.8 Section 7 - Process Flow Diagram (page 56) Directed Mills 5.9 Section 8 - Process Control Plan (page 58) Directed Mills 5.10 Section 9 - Process FMEA (page 64) Directed Mills 5.11 Section 10 - Bill of Materials (page 65) TechAudio: form only (information specific to DIR6200) Mills 5.12 Section 11 – Performance Data (page 66) Directed Mills 5.13 Section 12 – Fitting Instructions (page 69) Directed Mills 5.13.1 Installation Guide: 065 Directed Palone Summers 5.13.1.1 Photographs #2 – Installation Guide Directed Summers 5.14 Section 13 – Diagnostics (page 75) CCRF - TechAudio Mills - page 75 PFIR Report (page 76) All others - Directed Summers – page 76 Compound Changeover Request Form (CCRF) (page 77) Dane – page 78 Change-over radio request form (page 78) Dane – pages 80 - 110 Trouble Shooting Guide (page 80) Warranty Policy (page 107) 5.15 Section 14 – Quality Requirement Sheet (page 111) Directed or TechAudio Mills 5.16 Section 15 – Handbook (User's Manual) (page 113) Hanhwa and Directed Lee Mark Summers Directed employees corrected a draft version 5.16.1 Photographs – User's Manual (pp 182 and 183) Directed Summers 5.17 Section 16 – Graphical User Interface (GUI) (page 196) Hanhwa Hanhwa employees Directed Photographs #1 5.18 Section 17 – Accessories (page 283) Directed Mills 6 Pricing, financial and related information 6.1 Pricing – See Annexure F 6.1.1 Directed's documents containing: Internal info Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties,), Hanhwa parties, Seized N/A N/A product lists with cost pricing and profit information; EMP1 cost breakdowns / studies of the SuperDAVE; Customer (in part) breakdowns of Directed's pricing (Aus and NZ) for products incl. AV Units for Mercedes-Fuso vehicles, and contracts as between Mercedes and Directed 6.1.2 Directed's documents containing pricing information relevant to navigation Internal info Equity, EMP2, 182/183, 79 (Meneses, Hanhwa parties,), Hanhwa parties, Seized N/A N/A EMP1 6.1.3 Directed's documents containing: As for 6.1.1 Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties), Hanhwa parties N/A N/A pricing submissions to UD Trucks and Volvo for their Quon M-Media Kit; Directed's pricing of products supplied to Isuzu; pricing for a low mount parking sensor purchase order; Directed's pricing for its cables 6.2 Financial and sales information See Annexure F 6.2.1 Directed's documents including Internal info Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties), Hanhwa parties, Seized N/A N/A historical, current and forecast sales, pricing and costing and profit information for its products and services supplied to Mercedes, Daimler, HINO, Volvo, Fuso, Isuzu, UD and Caterpillar EMP1 Directed's sales information by (a) product category from January 2017 to October 2017; (b) customer from November 2016 to October 2017; (c) customer from 2009 to 2017; A stock listing of all current Directed stock exported from Directed's SAP system 6.2.2 Directed's documents including: As for Item 6.2.1 Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties), Hanhwa parties N/A N/A forecast information including future purchase orders for products from Hanhwa Korea and Leemen Korea; all of Directed's stock per item including whether in stock, committed, ordered or available Directed's stock of products in NZ, including details of products in stock, committed, incoming and available 6.2.3 Directed's documents including Internal info Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties), Hanhwa parties N/A N/A a list of all stock items supplied by Directed to all of its customers which records the numbers of each item in stock, incoming number and available numbers of each stock item exported from Directed's SAP system; EMP1 a Directed stock list exported from Directed's SAP system containing details of all stock items on hand for its customers: the numbers of each item in stock, incoming number, available numbers of each stock item and Directed's sell price are all recorded; Customer (in part) statements for Directed's major accounts 7 Line drawings for product parts Internal info, EMP1, HE/HK1, party, Customer Equity, EMP2, 182/183, 79 (Mills, Meneses, Hanhwa parties), HE / HK2, Seized Origin of document(s) identified below See reasons for judgment 7.1 Isuzu parts drawings Directed Palone 7.2 Mercedes Benz parts drawings Directed Slade 7.3 HINO parts drawings Directed Palone 7.4 Fuso parts drawings Directed Palone, Slade 8 Product Label N/A N/A Origin of document(s) identified below See reasons for judgment 8.1 Product warning label affixed to DIR6200 N/A N/A Hanhwa + Directed Hanhwa employee: C-Tick number provided by Directed 9 Salary and employee information Internal info, EMP1 Equity, EMP2, 182/183, 79 (Hanhwa parties, Meneses), Hanhwa parties 9.1 Salary package and related information for all Directed employees N/A N/A 10 Other unlawful misuse of documents and objects 10.1 Meneses' login details for Directed's portal website Internal info, EMP1 Equity, EMP2, 182/183, 79 (Hanhwa parties, Meneses), Hanhwa parties N/A N/A 10.2 Directed's instructions to Isuzu for updating the DAVE satellite navigation Internal info, EMP1, Customer Equity, EMP2, 182/183, 79 (Hanhwa parties), Hanhwa parties N/A N/A 10.3 Directed's certificate of business and product insurance As for 10.1 As for 10.1 N/A N/A 10.4 A Directed proposal to International Trucks in respect of audio, telematics and accessories dated December 2016 As for 10.1 Equity, EMP2, 182/183, 79 (Hanhwa parties, Meneses), Hanhwa parties N/A N/A ANNEXURE F MISUSE – PRICING | FINANCE | SALARY & EMPLOYMENT 6.1: Pricing Item Doc ID Confidential information Some details of misuse 6.1.1 Directed's documents containing: Use is to be inferred from: product lists with cost pricing and profit information; Location of documents at premises of Meneses, Mills and Hanhwa parties and/or express exchange of information; cost breakdowns / studies of the SuperDAVE; The requirement that Hanhwa Aus submit to Isuzu a competitive price for the supply of navigation software in the HAU8000; breakdowns of Directed's pricing (Aus and NZ) for products incl. AV Units for Mercedes-Fuso vehicles, and contracts as between Mercedes and Directed The requirement that Hanhwa Aus set up its start-up operations; The fact that the information was not in the public domain and was either Directed's internal information or as between Directed and the customer; (a) DIR.BROO.0320.0001 Directed's cost breakdown sheets. Located pursuant to search order at Hanhwa Aus premises. Modified by Hanhwa Aus (e.g. substituting its own name for Directed's in the header) (DIR.BROO.0315.0001 cf. DIR.DIRS.0278.0001; DIR.DIRS.0152.0001) (b) DIR.HOPP.0298.0001 Directed's complete list of products sold to all customers with cost price, list price, gross profit for each item – dated 3 March 2017. Located pursuant to search order at Mills House. The date precedes Mills' finish date of 8 March 2017 at Directed. (c) DIR.BROO.0099.0001 Directed's cost study for the DIR8000, its nav software & telematics unit / service vs DAVE. Located pursuant to search order at Hanhwa Aus premises. Important for pursuing the SuperDAVE Opportunity. (d) REL0000040538 – Mills discovery Directed's Quotations for Isuzu and its costs breakdown sheets for the DIR8000 and its accessories. Discovered by Mills in his privileged discovery. (e) HAN.001.025.3739 Mills to Meneses email relating to two products These were used to create the corresponding documents submitted to Isuzu by Hanhwa (REL0000086515). (f) REL0000086145 – Mills discovery HERE Maps pricing for NavNGo software 27 April 2017: A photo of the relevant page was provided by Meneses (using his Hanhwa address) by email to Lee (cc. Mills) under the title, 'Hanhwa Australia project'. Important for pursuing SuperDAVE Opportunity. (g) DIR.BROO.0262.0001 – pp 0037 – 0054. Pricing and contracts as between Mercedes and Directed Documents formed part of a bundle seized from Hanhwa Aus premises: Pricing for Fuso multi-media | nav units - Schedule 2 to a purchasing agreement between Directed and Mercedes. 2 x unsigned Deed of Variation of Agreement between Mercedes and Directed with Products, Prices, Delivery and Warranty at Schedule 2. (h) REL0000095017 (attachments are same DocID with the extensions .0001, .0002 and .0003). – Mills discovery Breakdowns of Directed's pricing for products to Mercedes for Fuso vehicles with potential price increases and decreases – 3 Excel spreadsheets 1 May 2017, Mills sent an email to himself at the Mills Hanhwa Email Address attaching these documents. First and third spreadsheets: the properties reveal they were created by Mills on 20 November 2015 and modified by him on 4 March 2016. Second spreadsheet: the properties reveal it was created by Mills on 25 August 2015. (i) IZU.002.001.0026 Minutes of Lee / Meneses meeting with Isuzu 30 June 2017: These are the minutes of the meeting with Isuzu in which Isuzu reps recorded the DIR6200 price, the DIR8000 price, and the HAU8000 price. (j) DIR.BROO.0320.0001 Directed's costs breakdown sheets for accessories for the DIR8000. 12 July 2017: Mills emailed to himself Directed's cost breakdown sheets for the DIR8000 and Hanhwa's breakdown sheets for the HAU8000. The version seized at Brooklyn had handwriting on it, as if someone had been working on it. HAN.001.034.7629 The Directed cost breakdown sheets discovered by Hanhwa were presented by Directed to Isuzu on 8 December 2016. The cost breakdown sheets for the HAU8000 (HAN.001.034.7631 and HAN.001.034.7631) were created on 29 June 2017. But for small adjustments to pricing it was almost identical. (k) DIR.HOPP.0238.0001 Pricing for components for Mercedes Truck AV The document is a printed-out email dated 19 September 2016 seized from Mills House. He was not a party to the email. A number of prices have been added by hand (the author of the email asked Meneses to insert such prices). (l) REL0000085691 (attachments have the extension .0001, .0002, .0003, .0004, .0005) Part numbers and other info concerning Directed's supply of products to Mercedes 18 July 2017: One infers from the email chain that shortly after Meneses had the exchange with Mercedes reps on behalf of Directed, he forwarded it to Lee who, in turn, forwarded it to Mills. (m) REL0000095558 – Mills discovery 10 August 2017 Directed Excel spreadsheet for Mercedes pricing for NZ This post-dates Mills' employment. The document was likely supplied to him by Meneses. (n) REL0000095744 – Mills discovery 29 August 2017: Spreadsheet which analyses the cost of production and gross profit derived by Directed from its supply of the DIR6200 compared with the HAU8000 Directed's gross profit was sensitive financial information. Also on 29 August 2017: Lee emailed Shanks, Meneses and Mills attaching an Isuzu Hanhwa parts listing. (REL000008640 and extension .0001 – the Excel) 6.1.2 Directed's documents containing pricing information relevant to navigation Use is to be inferred from: Location of documents at premises of Meneses, Mills and Hanhwa parties; The requirement that Hanhwa Aus submit to Isuzu a competitive price for the supply of navigation software in the HAU8000; The fact that the information was not in the public domain and unlikely to come from the customer (Isuzu) (o) DIR.DIRS.0418.0001, Mills House (Item 5), Brooklyn (Item 40) Navigation information Copies of documents incorporating this information seized pursuant to search order 6.1.3 Directed's documents including: pricing submissions to UD Trucks and Volvo for their Quon M-Media Kit; Directed's pricing of products supplied to Isuzu; pricing for a low mount parking sensor purchase order; Directed's pricing for its cables (p) REL0000088313 – Mills discovery Pricing for low mount parking sensor purchase order 30 August 2017: Lee asked Mills for these figures. Mills provided the prices up until Feb "this year" (one infers this was based on his knowledge at the time he left Directed). (q) REL0000088125 – Mills discovery Pricing of accessories: A list of 50 or so products based on Directed's pricing. The misuse is apparent on the face of the email. 11 July 2017: Mills provided Lee by email with recommended mark-ups on Directed's pricing. It stated in part, "Where our advantage lies with complete digital reverse kit sell price compared to Directeds. They are selling as per below." (r) MIL.004.00305.0001 Directed's product sheet and pricing for its DRL lights (on the Red Hard Drive) 11 July 2017: Mills sent this to Lee. HAN.001.034.7070 (s) REL0000088113 – Mills discovery Relevant to HAU8000: Directed's pricing for its cables 13 July 2017: In response to costing information provided to him, Mills provided Oh cc Lee with the prices Directed charged for equivalent components for the steering wheel control. The specificity with which Mills reported the information suggests he had Directed's pricing in front of him: "As a comparison, Directed are getting charged $17 USD for 10 metre (HCAM-C10M) and $15.50 for 8 metre (HCAM-CO8M) but main cost is waterproof connectors each end I believe". (t) DIR.DIRS.0271.0001 Directed's pricing for the supply of AV units to UD Trucks 25 September 2017: Sent by Meneses from his Directed email address to his personal address (u) REL0000088402 (and with the extension .0001) – Mills discovery Directed's pricing on camera extension cables 5 October 2017: Lee sought this from Mills, who provided it to him. Lee's request was, "Still waiting for the price mate" and "Only need CAM extension cable with Directed price". 6.2: Financial and sales information Item Doc ID Confidential information Some details of misuse 6.2.1 Directed's documents including: Use is to be inferred from: historical, current and forecast sales, pricing and costing and profit information for its products and services supplied to Mercedes, Daimler, Hino, Volvo, Fuso, Isuzu, UD and Caterpillar Location of documents at premises of Meneses, Mills and Hanhwa parties and/or express exchange of information; Directed's sales information by (a) product category from January 2017 to October 2017; (b) customer from November 2016 to October 2017; (c) customer from 2009 to 2017; The requirement that Hanhwa Aus submit to Isuzu a competitive price for the supply of navigation software in the HAU8000; A stock listing of all current Directed stock exported from Directed's SAP system The requirement that Hanhwa Aus set up its start-up operations; The fact that the information was not in the public domain and was Directed's internal information (a) HAN.001.023.1015 Directed's calculation of its gross profit on the SuperDAVE 17 August 2016: Sent by Mills to Meneses – discovered by the Hanhwa parties when it should never have been in their possession. Clearly of use for developing the HAU8000. (b) REL0000060981 and attached Excel (Mills discovery) Directed's spreadsheet detailing Directed's costs, gross profit and mark up on DIR8000 and accessories, and amortisation of tooling costs. 21 November 2016: Sent by Mills (Directed email address) to Meneses (Directed email address) cc Mills' personal email address, saying, 'Johnny, Latest update'. OES.0002.0031.5750 (Meneses discovery) Important to Hanhwa parties for their pursuit of the SuperDAVE Opportunity. (c) DIR.BROO.0262.0001 – pp 0007 – 0011 Directed's sales information by (a) product category from January 2017 to September 2017; (b) customer from November 2016 to September 2017; (c) customer from 2009 to 2017 There is no reason for Hanhwa ever to have had such information yet it was seized from Hanhwa Aus premises pursuant to search order. The date range (until September 2017) leads to the inference that Meneses was provided with them or made copies of the documents at about that time, and provided them to Hanhwa Aus. (d) DIR.BROO.0262.0001 – pp 0006, 0013-0014, 0016, 0018-0021, 0029, 0031-0033, 0046, 0052, 0057, 0059-0073 Directed's historical, current and forecast sales, pricing and costing and profit information for its products and services supplied to Mercedes, Daimler, Hino, Volvo, Fuso, Isuzu, UD and Caterpillar There is no reason for Hanhwa ever to have had such information yet it was seized from Hanhwa Aus premises pursuant to search order. (e) DIR.ASPE.0256.0001 (CB.10.29.B6066) A stock listing of all (then) current Directed stock exported from Directed's SAP system This was seized from Meneses' house and also discovered by the Hanhwa parties. That there are multiple copies signifies its importance to the start-up. HAN.004.005.0311 6.2.2 Directed's documents including: forecast information including future purchase orders for products from Hanhwa Korea and Leemen Korea; all of Directed's stock per item including whether in stock, committed, ordered or available Directed's stock of products in NZ, including details of products in stock, committed, incoming and available (f) HAN.004.006.0405 November 2016 document showing Directed's sales forecasts for the period Oct 2016 to June 2017 Document seized at Brooklyn (DIR.BROO.0257.0001) – contains highlights by hand and on computer. (g) REL0000086316 – Mills discovery Directed's forecast – Excel spreadsheet. It contains all of Directed's stock items sold since 2009 to date, detailing all of its historical sales of these products by customer, year and includes future projections of ordering by customers. It details sales price, total sales, growth in sale and stock holdings. 8 February 2017: last printed on 8 February 2017, Mills' last day in the office at Directed (refer properties) HAN.001.029.1889 – Hanhwa parties' discovery 4 April 2017: last modified by Mills (refer properties of the copy discovered by the Hanhwa parties - Mills had officially joined Hanhwa Aus by then). 4 April 2017: Shared by Mills (from his Hanhwa email address after his departure from Directed) with Oh via OneDrive. 11 April 2017: Forwarded by Oh to Hanhwa Korea employees: HAN.001.030.4320_addtl_ENG_checked. (The properties of the 11 April 2017 version reveal it was modified by Oh on that day. The 2 Excel spreadsheets discovered by Hanhwa are identical.) The importance of the document to the Hanhwa parties is evident from Oh's 11 April email: She referred to "up-to-date information" in relation to the "forecast on the Australian market for the April-August 2017 period. (h) Cover email is REL0000086259 – The Excel has the same DocID and the extension .0001 – Mills discovery Directed's foreshadowed purchase orders for products from Hanhwa Korea and Leemen Korea. April 2017: The misconduct is apparent from Meneses' use of his Hanhwa email address to send this material to Mills. REL0000086259.0001 The properties of the Excel spreadsheet record that it was created on 12 April 2017 by Arthur Proghios, who was Directed's Purchasing Officer who replaced Mills. (i) REL0000086260 for cover email; Excel has same DocID with extension .0001 – Mills discovery All of Directed's stock per item including whether in stock, committed, ordered or available (1200 items) 12 April 2017: Forwarded by Meneses via his Hanhwa email address to Mills who was by then employed by Hanhwa Aus. (j) REL0000086185 for cover email; Excel has same DocID with extension .0001 – Mills discovery Directed's stock of products in NZ, including details of products in stock, committed, incoming and available. 21 April 2017: Forwarded by Meneses via his Hanhwa email address to Mills who was by then employed by Hanhwa Aus. (k) REL0000097950.XLSX Directed's cost-breakdown sheet: sent to Isuzu when making quotations Discovered by Mills. 6.2.3 Directed's documents including: a list of all stock items supplied by Directed to all of its customers which records the numbers of each item in stock, incoming number and available numbers of each stock item exported from Directed's SAP system; a Directed stock list exported from Directed's SAP system containing details of all stock items on hand for its customers: the numbers of each item in stock, incoming number, available numbers of each stock item and Directed's sell price are all recorded. (l) HAN.004.003.0009 A stock listing of all current Directed stock exported from Directed's SAP system A copy of this list was discovered by the Hanhwa parties, together with handwriting. (m) HAN.001.026.7187 -confidential A Directed stock list dated 31 January 2017 (19 pages; 1200 items) exported from Directed's SAP system. Recorded are details of all stock items on hand for its customers: the numbers of each item in stock, incoming number, available numbers of each stock item and Directed's sell price. A copy of this list was discovered by the Hanhwa parties. Important for a start-up. (n) DIR.DIRS.0254.0001 The statements for Directed's major accounts for the month of August 2017 1 September 2017: Forwarded by Meneses from his Directed email address to his personal email address. The information included details of customers and amounts owing to Directed as at August 2017. 9: Salary and employee information Item Doc ID Confidential information Some details of misuse 9.1 Salary package and related information for all Directed employees Obtained by Meneses and provided to Lee: On 16 December 2016, Meneses, from the Meneses Directed Email Address, asked Floudas for all salary package information for all Directed employees as at that date. This was provided to him at the Meneses Directed Email Address. The evidence shows Meneses then provided this information to Lee, or used it himself, to solicit Directed employees to Hanhwa Aus. 9.1.1 DIR.DIRS.0531.0001 Offer of employment made by Directed to Paul Lim Obtained by Meneses and provided to Lee 9.1.2 DIR.DIRS.0307.0001 A copy of Ashan Pieries' employment contract – attached to an email dated 3 December 2013 from Siolis to Floudas attaching same Forwarded by Meneses to his personal email address on 6 February 2017. 9.1.3 DIR.DIRS.0234.0001 Salary package including increase for Marcus Palone Obtained by Meneses and provided to Lee 9.1.4 DIR.DIRS.0531.0001 18 July 2016 email to Paul Lim with attached Directed employment contract of Paul Lim Forwarded by Meneses from his Directed email address, to his personal email address, on 1 February 2017. 9.1.5 HAN.001.027.4343 Directed's new starter pro forma sheet Used by Hanhwa to create its own form. SCHEDULE OF PARTIES VID 1157 of 2017 Respondents Fourth Respondent: LEEMEN AUS PTY LTD ACN 621 821 190 Fifth Respondent: HANHWA HIGHTECH CO., LTD Sixth Respondent: JOHNNY MENESES Seventh Respondent: CRAIG MILLS Eighth Respondent: KICHANG (RYAN) LEE Ninth Respondent: NATHAN MENESES Tenth Respondent: GRIDTRAQ AUSTRALIA PTY LTD ACN 154 515 394 Eleventh Respondent: WEBHOUSE SOFTWARE SOLUTIONS PTY LTD ACN 152 567 416 Twelfth Respondent: LEEMEN CO. LTD Thirteenth Respondent: QUANTAM TELEMATICS PTY LTD ACN 159 485 051