Federal Court of Australia

Gold Titan Pty Ltd v Lopez (No 3) [2022] FCA 1426

File number:

NSD 1924 of 2019

Judgment of:

ABRAHAM J

Date of judgment:

30 November 2022

Catchwords:

DAMAGES – assessment of damages for breach of contractual obligation of confidentiality and equitable obligation of confidence – assessment of damages under s 236 of the Australian Consumer Law – where matter remitted to primary judge for further reasons – where limited evidence before the Court

Legislation:

Competition and Consumer Act 2010 (Cth) Sch 2 s 236

Cases cited:

General Tire and Rubber Company v Firestone Tyre and Rubber Company Ltd (1976) 93 RPC 197

Generic Health Pty Ltd v Bayer Pharma Aktiengessellschaft [2018] FCAFC 183; (2018) 267 FCR 428

Gold Titan Pty Ltd v Lopez [2021] FCA 918

Gold Titan Pty Ltd v Lopez (No 2) [2021] FCA 1523

Lopez v Gold Titan Pty Ltd [2022] FCAFC 117

McRae v Commonwealth Disposals Commission (1951) 84 CLR 377

Searle v Commonwealth of Australia [2019] NSWCA 127; (2019)100 NSWLR 55

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

41

Date of last submission:

9 November 2021

Date of hearing:

Determined on the papers

Counsel for the Applicant:

Mr M R Hall SC

Solicitor for the Applicant:

Banki Haddock Fiora

Counsel for the Respondents:

Mr J P Knackstredt

Solicitor for the Respondents:

Somerville Legal

ORDERS

NSD 1924 of 2019

BETWEEN:

GOLD TITAN PTY LTD T/AS EVAGROUP ABN 47 124 061 169

Applicant

AND:

NICHOLAS LOPEZ

First Respondent

IMPERIAL FLOORING AUSTRALIA PTY LTD ACN 635 477 593

Second Respondent

CEMIMAX AUSTRALIA PTY LTD ABN 71 623 150 014 (and another named in the Schedule)

Third Respondent

order made by:

ABRAHAM J

DATE OF ORDER:

30 November 2022

THE COURT ORDERS THAT:

1.    Judgment for the applicant (Gold Titan) against the first and second respondents jointly and severally, in the sum of $150,000, plus interest calculated from 18 November 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    In Gold Titan Pty Ltd v Lopez [2021] FCA 918 (Liability Judgment), I concluded that Mr Nicholas Lopez, the first respondent, breached his contractual obligation of confidentiality, and that he and Imperial Flooring Australia Pty Ltd (Imperial Flooring), the second respondent, breached their equitable obligation of confidence by using the “Evagroup Customer List”. I also concluded that each of them had breached s 18 of the Australian Consumer Law (ACL) (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) by making certain statements on the Imperial Flooring website and in unsolicited emails which Imperial Flooring sent to potential customers. In Gold Titan Pty Ltd v Lopez (No 2) [2021] FCA 1523 (Relief Judgment), orders were made for relief for the breaches of confidence and the ACL contraventions, including an award of damages of $150,000. In Lopez v Gold Titan Pty Ltd [2022] FCAFC 117 (FCJ), the Full Court set aside the award of damages and remitted the matter for reasons on the quantum of damages. In so doing the plurality did not deal with the remaining grounds of appeal. This judgment provides those reasons and addresses the issue of quantum of damages. It should be read together with the Relief Judgment (RJ) and the Liability Judgment (LJ).

Consideration

2    In the Relief Judgment I concluded, inter alia, at [71]:

Having considered the submissions, the evidence and applying the relevant legal principles, (bearing in mind, inter alia, that the applicant chose to sell a new product from November 2019, and other discounting factors unrelated to the claim), the damages awarded for the breaches of confidence and the ACL contraventions should be $150,000. Given the nature of the breaches of confidence, it comprises the substantial portion of the claim, with the ACL claim (being the limited time over which it occurred and customers had been contacted) being limited to $25,000.

3    As with all judgments, that passage is not to be read in isolation, but in context. This includes both the Relief and Liability Judgments.

4    The relevant legal principles governing an award of damages in a case such as this are outlined in the Relief Judgment, to which there was no issue taken in the Full Court. It is unnecessary to repeat those principles, suffice to recall the following. In employment cases, damages are not limited to the loss of trading profits, and an absence of precise proof is not a reason to withhold damages: RJ [8]. Similarly, the breach in question does not have to be the sole cause of the loss. Rather, if the breach is a cause in fact of the loss, damages are recoverable unless some other event has broken the chain of causation: RJ [10].

5    Given the state of the evidence, this was not a case where a mathematical approach with precision was, or could be, adopted. In that context, as Rares J, who wrote separately in the Full Court observed, the Court’s approach in this case in assessing “the question of compensation on a liberal basis and do[ing] the best it can on the evidence available” is in accordance with principle: Rares J at FCJ [45] citing General Tire and Rubber Company v Firestone Tyre and Rubber Company Ltd (1976) 93 RPC 197 at 212; Generic Health Pty Ltd v Bayer Pharma Aktiengessellschaft [2018] FCAFC 183; (2018) 267 FCR 428 at [187]. As Rares J then observed, this was not a case where the loss could be established with any precision.

6    I note also the observations of Rares J at [38]:

In essence, her Honour was determining a claim for damages for loss of a commercial opportunity of Evagroup to make more sales to, and or enter into additional contracts with, customers caused by the conduct of Mr Lopez and Imperial. Her Honour found, correctly, that Evagroup had sustained some loss or damage. She then had to find a value for that loss or damage by reference to the degree of probabilities or possibilities: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 354–355 per Mason CJ, Dawson, Toohey and Gaudron JJ. That was the context in which the primary judge had to do the best she could because precision was not possible. As Menzies J said in Jones v Schiffmann (1971) 124 CLR 303 at 308 in an observation that has been applied often, as Bell P, with whom Bathurst CJ at 58 [1] and Basten JA at 106 [246] agreed, noted in Searle v Commonwealth of Australia (2019) 100 NSWLR 55 at 99 [203]–[205]:

The assessment of damages, whether by a judge or a jury, does sometimes, of necessity, involve what is guess work rather than estimation.

7    This is reflective of the approach taken in this case: RJ at [68] and [70]-[71].

8    Mere difficulty in estimating damages does not relieve a tribunal or court from the responsibility of assessing them as best it can: McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 411-412.

The factual context in which damages were assessed

9    Pausing there. It is appropriate to recall that Mr Yates’ evidence, which I accepted, was that the Evagroup Customer List was compiled over 12 years by adding details of customers to the database from time to time. Mr Yates’ evidence was that Evagroup had obtained many referrals by word of mouth over the 12 years, with approximately one third of Evagroup’s business coming from referrals from persons in the industry and other customers. He estimated that approximately 75 percent of Evagroup’s customers were repeat customers. The Evagroup Customer List gave “Evagroup a competitive advantage including because it is a marketing tool and it facilitates streamlined and mass communication with customers”: LJ [95]. The Evagroup Customer list had value to Evagroup, and has value in and of itself: see for example, Rares J at FCJ [34]. So much is reflected by the fact that Mr Lopez identified an advantage to himself in using the Evagroup Customer List rather than reassembling it from first principles: LJ [103]. He did so to gain a competitive advantage. Mr Lopez and Imperial Flooring used the confidential customer list by the targeting of Evagroup customers and establishing its business in the manner it did, in particular in the time frame in which it did. Part of that was the use of the information in sending emails to Evagroup’s customers, in a circumstance promising the best prices (in a context where Mr Lopez and Imperial Flooring knew Evagroup’s price). Their purpose in engaging in the conduct was to gain from the springboard effect in launching their business “in particular in the time frame in which they did: RJ at [67]. Mr Lopez resigned on 9 August 2019, his last day of work was 12 August 2019, and Imperial Flooring was immediately established, it being registered on that day with ASIC: LJ [15]-[16]. The Imperial Flooring website on which the statements the subject of ACL claims were published, was running from at least 15 August 2019, with its operating address being the Cemimax warehouse: LJ [22] and [24]. Some of Evagroup’s customers started contacting it from that day raising, inter alia, who was selling Cemimax products, and one provided him with the link to the Imperial Flooring website: see for example, LJ [19]-[21]. Imperial Flooring sent out its first invoice on 19 August 2019. All but one of the emails by Imperial Flooring sent using the Evagroup Customer list (in evidence) were sent on 9 September 2019: LJ [113] and [125].

10    In considering the ACL breaches, I considered, inter alia, the nature of the industry, prospective purchasers, and the premium that those purchasers place on the reliability of the supplier or distributor: see for example LJ [140] and [148], which is the context in which the respondents chose to make the false statements and the importance of them to the respondents business. The website was directed to persons who were looking to source products to undertake flooring works, which would include persons ranging from floor installers through to persons involved in any work or project requiring such products, and would range from large scale projects to individual operators: LJ [140] and [148]. The Website represented that certain projects had been supplied with goods and services by Imperial Flooring when in fact they had been supplied by Evagroup. The impugned emails directed the attention of potential customers to Imperial Flooring’s website and, in particular the projects page, which contained the false representation. This is in a context where the email represented that Imperial Flooring had been gaining fast traction over the years in the Australian market which was, and was intended, to give the impression to customers that Imperial Flooring had a track record of winning and fulfilling orders for major development projects.

11    The competitive advantage to Evagroup was taken away by the use of the Evagroup Customer List, and the conduct of Mr Lopez and Imperial Flooring, which formed the basis of the contraventions, immediately changed the market.

12    That is a brief overview of the factual context in which the damages were to be assessed.

The Full Court’s remittal

13    The plurality of the Full Court at [100] commented that no finding had been made on seven identified matters. Accordingly, I address each matter.

14    First, in relation to Confidential Exhibit S, the Full Court queried whether this exhibit was accepted as proof of Evagroup’s profits in each of the months in the two years that it apparently compares. As I explain below, I accept that the exhibit is proof of Evagroup’s profits in the two years which it compares but, for the reasons given in the Relief Judgment which I reiterate below, I do not accept that as proof of the precise quantum of the loss which Evagroup sustained as a result of the respondents’ conduct.

15    Confidential Exhibit S, on the unchallenged evidence, was a profit and loss statement generated by Mr Yates using MYOB. It compared, on a month by month basis, Evagroup’s net profit for the 2019 and 2020 financial years. I made criticisms of the document, which simply refers to profit and loss figures across each of the months in those years, primarily (although not wholly) concerning what can be discerned from the figures produced in that form: see, for example, RJ at [55]-[57] (concerning the absence of information which is normally associated with such statements such as a breakdown of revenue, costs and expenses) and RJ at [64]-[65] (addressing the lack of evidence about the monthly variations in the figures within each financial year, the portion of the business which related to floor leveller when compared to other products and services, and the effect of the expenses which the applicant claimed were incurred because of the conduct of Cemimax on the profit/loss figures in the exhibit).

16    It is to be recalled that, in support of its case on quantum, the applicant relied primarily upon Confidential Exhibit S. It submitted that the difference it recorded between Evagroup’s profits in 2019 and 2020 was the loss which resulted from the respondents’ conduct (though it was also said that this amount could appropriately be subject to a reduction of 35 percent in order to recognise or take account of various factors such as Mr Lopez’s departure from the business and market vicissitudes). Although the respondents questioned the reliability of the document during closing submissions: RJ [57], they did not cross-examine Mr Yates on it, or suggest that it was not accurate in respect to the bald figures. It was not prepared for the purpose of these proceedings. Rather, the real issue between the parties was what could be drawn from it.

17    As is plain from RJ [64]-[65] and [68] for the reasons there given, I did not accept that the inference which the applicant sought to draw from the figures could be drawn. That is, I did not accept, in light of the criticisms of the evidence and its associated limitations, that the loss which Evagroup incurred from the respondents conduct was established by Confidential Exhibit S to be the amount claimed. I did not accept that Confidential Exhibit S established that the loss of profit from the conduct of Mr Lopez and Imperial Flooring was (taking into account a discount which reduced the figure of the loss by approximately 35 percent) in the order of approximately $370,000. That said, I accept that the figures in Confidential Exhibit S were produced as the evidence reflects, and that it was Evagroup’s assessment of the bald profit/loss figures at the specified times. There being no challenge to the accuracy of those figures by the respondent, I accept that they are proof of Evagroup’s profits in each of the months in the two years that it apparently compares.

18    Second, as to Confidential Exhibit G, the Full Court raised an issue as to whether the exhibit was accepted as proof of the loss of margin suffered by Evagroup in selling Cemimax products to a specific group of named customers in the period from September 2019 to April 2020. I accept that in relation to specified customers which Evagroup sold to during that period and in relation to the amounts of the sales made by it to those customers, Confidential Exhibit G reflects the losses on those sales (for example, as a result of discounting).

19    Third, Annexure A is an aide memoire prepared by the respondents and attached to their closing submissions in reply. It purports to identify all of Imperial Flooring’s sales to former customers of Evagroup between July 2019 and September 2020 by reference to certain invoices which were produced by Imperial Flooring in answer to a Notice to Produce, and was relied upon by the respondents to demonstrate the quantum of damages which they considered that it was appropriate for the Court to award. The respondents’ submission was that the starting point for the maximum amount of compensable loss incurred by Evagroup was represented by the gross profit figures contained in Annexure A and that those figures ought to be further discounted to arrive at a net profit figure representing any final damages award. That net profit figure was $16,948.11. I note that, in respect of the information in relation to Imperial Flooring, Mr Lopez did not give any evidence as to the completeness of the invoices upon which Annexure A is based or an explanation of the aide memoire. (Noting also that in LJ at [113], I rejected a submission by the respondents that what had been produced by it in relation to a different notice to produce, reflected the extent of conduct undertaken.)

20    Putting the veracity of the figures in Annexure A to one side, for the reasons below I consider that Annexure A is flawed for the purpose on which it was relied and cannot be used in the manner contended for by the respondents.

21    Although it may be accepted that the sales which Annexure A records were made by Imperial Flooring for the amount claimed, and that it records the revenue of those sales in so far as they relate to Imperial Flooring, the gross profits which it also records are impacted by how much Imperial Flooring was charging for the product on top of its costs. Exactly how much this was may have been affected by a number of matters (noting that Imperial Flooring in the emails to Evagroup’s customers was promoting that it had the most competitive prices). That is, it is to be inferred that Imperial Flooring was charging customers less than Evagroup for the same product. There is also evidence that Imperial Flooring was purchasing the product for less than Evagroup. In that circumstance, I do not accept that the gross profits relied on by Imperial can be extrapolated to the loss to Evagroup.

22    Even leaving aside that this does not address customers who may have left Evagroup and gone elsewhere as a result of the conduct of Mr Lopez and Imperial Flooring (given that there were other sources of the Cemimax product), the respondents approach fails to take into account other relevant facts such as the springboard advantage gained by Mr Lopez. This is so even though it can be recognised that gain by the respondent may be a relevant consideration when assessing the loss to the applicant. The approach fails to recognise that the respondents obtained a head start in their business by the use they made of the confidential information. The applicant may have lost out on jobs it might otherwise have obtained. The representations on the website designed to mislead may have done just that (including as to potential new customers). It is not possible for a business in the position of Evagroup to be able to prove who went to Imperial Flooring or what other customers they may have lost as a result of the website. Bearing in mind, the respondents deliberately undertook the conduct to do just that (with false statements as to the business and the use of projects in which Evagroup was involved being credited by Imperial Flooring to itself). Mr Yates evidence included the loss of custom, at that time in relation to at least five customers, a number of which are not referred to in this Annexure A analysis. It also failed to recognise that it is notoriously difficult to prove the lost custom as a result of such breaches as established in this case. There was evidence from Mr Yates of other customers lost, with their business being or potentially being significant.

23    The figure reached by the respondents on the basis of Annexure A also fails to take into account the effort needed and time taken to address the consequences of the respondents conduct, and the steps taken to maintain, or to win back customers (including the need to discount prices or losses from the provision of the more expensive product for the price of the cheaper product, see for example, the evidence of Mr Yates and Confidential Exhibit G). The analysis also does not account for any loss of goodwill. As I concluded in the Relief Judgment, damages in this case are not limited to loss of sales or trading profit, but can extend, inter alia, to diminution of goodwill: RJ [8].

24    For these reasons, an assessment of the quantum of damages which was based purely upon the sums in Annexure A (albeit, with some adjustments) would not be appropriate. That said, Annexure A reflects that it is apparent that some customers did leave Evagroup for Imperial Flooring, with that custom being significant and continuing. In so far as Annexure A contains evidence of the sales made by Imperial Flooring, it is relevant evidence, in the assessment, taking into account the limitations that go with it.

25    Fourth, as to the scale of Evagroup’s business as a whole, or the scale of Evagroup’s Cemimax business, precise figures cannot be given. As is apparent from the Liability Judgment, it is a small company with no more than 5 employees, Mr Yates being the director: see LJ at [8], [178], and [180]. It is also apparent that 75 percent of its business is return custom. In the Liability Judgment, I made findings about the nature of the industry which impact upon the effect of the respondents’ conduct: see for example LJ at [140] and [148]. Confidential Exhibit S, with its limitations, gives some general guide as to the size of the business.

26    Fifth, as to the value of any goodwill in Evagroup’s business and the extent to which it may have been lost, this value is incapable of quantification. I accept that Evagroup’s goodwill has been adversely impacted by the conduct of Mr Lopez and Imperial Flooring. As noted above, Mr Yates gave evidence that 75 percent of his customers are return customers: for example LJ at [95].

27    Sixth, as to the names of the customers who left Evagroup for Imperial Flooring, the issue is too confined. As explained above, business may have been lost to elsewhere, or Evagroup may have been deprived of new custom, as a result of the respondents conduct. There was evidence from Mr Yates as to the loss of significant customers, not referred to in Annexure A.

28    Similarly, what the business of such customers was worth is incapable of precise quantification on the evidence. As stated in the Relief Judgment, the extent of the lost business is difficult to assess. Annexure A reflects that substantial business of some former customers was given to Imperial Flooring. However, that does not limit the damages that can be assessed. Damages are not to be assessed only on the basis of which customers can be established as having gone to Imperial Flooring. There is evidence of a loss of custom by other substantial customers of Evagroup at a time that coincides with Mr Lopez leaving. For example, on the evidence of Mr Yates, there were such customers as Nazero Construction and Illawarra Waterproofing, which could have been expected to be about $85,000 worth of business. As explained above, other factors are relevant to the assessment of damages.

29    Finally, as to the ACL breaches, it is not possible, and neither party suggested it was either possible or necessary, to quantify what loss Evagroup suffered by reason of the breaches of the ACL. Given the nature of the breaches, it is impossible to attribute loss to one or other aspect of the misconduct of Mr Lopez and Imperial Flooring. They were all driven to the same end. The ACL breaches included Mr Lopez using the customer list to send emails to Evagroup’s customers touting for business. The website contraventions had broader reach. It cannot be that because the damage cannot be attributed to a particular contravention given their overlapping nature, that it ought not be compensated. The approach taken was one which was urged by the applicant and which recognised the damages which were appropriate considering the contravening conduct. In my view, $150,000 damages encompassed the consideration of all contraventions. A portion was then allocated to the ACL breaches.

30    The evidence referred to above is all part of the factual matrix to be evaluated in the assessment of damages, and no one aspect is to be considered in isolation. It was considered, with all the limitations discussed.

31    For example, accepting and taking into account the limitations of Confidential Exhibit S, it nonetheless reflects that there was a significant drop in profit from the preceding year, in the months following Mr Lopez’s use of the confidential information and the other contraventions. It was only in the preceding year that Cemimax was sold by Evagroup. Some of that drop is attributable to the conduct of Mr Lopez and Imperial Flooring. That cannot be controversial. That conclusion is also supported by other evidence, including, inter alia, evidence from Mr Yates as to loss of business (which is not confined to Imperial Flooring), and of his acts following the establishment of Imperial Flooring (including of discounting to maintain or win back business). Moreover, although I criticised the press release, I accepted that it was done in mitigation of damage caused by the respondents. Although Mr Yates’ conduct impacts on the assessment of damages, I did not accept that there is a line cutting off the assessment of damages either at the time the press release was sent, or when the press release said the new product was said to be released. The impact of the respondents conduct did not cease at that time and it did not break the chain of events. For example, the evidence reflects the efforts which Mr Yates’ went to try and win back customers from Imperial Flooring, which is not limited by any press release.

32    As explained above, I accept that there was a loss of goodwill and significant time and effort spent by Mr Yates on addressing the consequences and fallout from the conduct of Mr Lopez and Imperial Flooring. Bearing in mind, Mr Lopez continued to deny his conduct from shortly after Mr Yates became aware of it, including as to the use of the confidential information and setting up Imperial Flooring which formed the relevant claims, up to and during the time of these proceedings. This was despite there being compelling evidence to the contrary: see for example LJ [45]-[63]. As explained above, the Evagroup Customer List has value in itself.

33    It is necessary to take into account factors such as the difficulty of a business in the position of Evagroup of establishing loss, and that loss may be as yet unknown or unknowable (for example, as illustrated by the website). That this is unquantifiable does not mean it is not taken into account. That the loss or damage from those factors is not quantifiable, and could not be, does not mean that it cannot be compensated. I bear in mind also, as noted above, that the conduct of Mr Lopez and Imperial Flooring does not need to be the sole cause of damage but merely a cause.

Conclusions

34    As explained in the Relief Judgment, there are difficulties with the evidence and with the parties submissions as to the use of that evidence. Nonetheless, the Court is required to do the best it can on the evidence available. The quantum of damages awarded was an evaluation based on an assessment of all of the relevant evidence, taking into account the limitations that it carries (for the reasons explained). As previously expressed, I was mindful that given the nature of established contraventions by the respondents, the Court should assess the quantum of compensation on a liberal basis.

35    That said, it is appropriate to recall the amounts sought by the parties.

36    The amount of $16,000 proposed by the respondent is unreasonably low, and in my view, by several orders of magnitude. As explained above at [21]-[23], this is because, inter alia: (1) the figures are impacted by a number of factors including the cost of obtaining the product, with Imperial Flooring purchasing the product for less than Evagroup; (2) it fails to take into account the advantage gained by the springboard effect; (3) it does not address customers who may have left Evagroup and gone elsewhere as a result of the conduct of Mr Lopez and Imperial Flooring; (4) it does not address that Mr Lopez and Imperial Flooring were aware of what Evagroup charged, and was charging customers, which was less than Evagroup for that product; (5) it does not address the acts undertaken by Evagroup to maintain and regain business (including discounting its products) as a result of the respondents conduct; (6) it fails to take account of the effect of the representations on the website which were designed to mislead, and that Evagroup may have lost out on business; and (7) it fails to take account of the loss of goodwill. This is also in a context where, as explained above, the figure sought is based on Annexure A, which is an aid memoire prepared for the purpose of submissions, and where Mr Lopez did not give any evidence on the topic or the completeness of the underpinning documentation: see [19] above.

37    Evagroup proposed an amount of approximately $370,000, which was based on a loss of profits (as reflected in Confidential Exhibit S), allowing for a 35 percent deduction to take account of various factors such as Mr Lopez’s departure from the business and market vicissitudes. That discount is plainly insufficient given the limitations of the evidence provided in Confidential Exhibit S. As explained above at [15], this includes, inter alia: (1) the information was limited to a bald figure of the profit and loss for each month, with the absence of information normally associated with profit and loss statements such as a breakdown of revenue, costs and expenses; (2) the fact that the exhibit provides the figure only related to two years, with no broader information provided; and (3) the absence of information as to the portion of the business which related to floor leveller when compared with other products. Any reduction to the loss figure to accommodate the limitations with the evidence will necessarily be much higher than the applicant contended for.

38    In addition, as explained above, there are such matters as: Mr Yates evidence of loss of custom; evidence as to the time taken and acts done in response to the respondents conduct; the value of the customer list; the likely loss of business from the respondents conduct (including customers they might otherwise have obtained); the impact of the website and the misleading statements; and loss of goodwill.

39    As explained above, I am also mindful of factors such as the difficulty of a business in the position of Evagroup of establishing loss, and that loss may be as yet unknown or unknowable.

40    Given the state of the evidence, it is at this stage that a degree of guess work necessarily comes into play: see [6] above; Searle v Commonwealth of Australia [2019] NSWCA 127; (2019) 100 NSWLR 55 at [203]-[205] and [246].

41    Doing the best I can on the state of the evidence, having considered the submissions, the evidence and applying the relevant legal principles, (bearing in mind, discounting factors unrelated to the claim), I remain of the view that $150,000 is the appropriate sum for damages for the breaches of confidence and the ACL contraventions. That sum represents a far more substantial reduction on Confidential Exhibit S than that proposed by the applicant given the limitations described above (approximately 74 percent as compared to 35 percent), but is also much greater than the respondents proposed amount which, for the reasons above, is insufficient.

I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

Associate:

Dated:    30 November 2022

SCHEDULE OF PARTIES

NSD 1924 of 2019

Respondents

Fourth Respondent:

JOHN TITUS