CONTRACTS – construction – where parties entered into contract for sale of non-exclusive “interest” in software – nature of “interest” acquired by first plaintiff – whether interest was limited to software which existed at relevant date – whether first defendant owned copyright in software to exclusion of second defendant – whether first plaintiff was limited to licensing software to particular customer – whether first defendant had express or implied obligation to provide first plaintiff with source code and updates for, and modifications and developments to, software – whether initial contract was abandoned by parties.
CONTRACTS – construction – where relevant parties entered into subsequent contract in respect of software – scope of licence granted under contract – whether licence was limited to specified period – whether second plaintiff was permitted to grant licences to new customers after that period – effectiveness of assignment – whether second defendant required to provide updates to second plaintiff to ensure software compatibility with other software.
CONTRACTS – breach – whether parties had breached obligation to deposit source code with escrow agent – whether conditions of agreement for release of software from escrow were satisfied – whether second defendant breached obligations to provide development services, information and assistance – confidentiality – whether second defendant had received and disclosed confidential information – good faith and cooperation – whether there was a breach of obligation of good faith.
CONTRACTS – termination – whether second defendant had properly terminated agreement – whether established that second plaintiff breached contract by non-payment of licence fees – whether second defendant had abandoned rights to termination – whether notice of termination of agreement was effectively served – whether there was a failure by second defendant to comply with dispute resolution clauses – whether termination was invalidated by non-compliance with dispute resolution clauses.
CONTRACTS – existence of contract – whether established that entity was granting licences under previous agreement – where person is director of two associated companies – whether sub-licence was created by decision of common director.
TORTS – tort of conspiracy – harm by unlawful means – where second and third defendants had entered into purchase agreement – where defendants had terminated earlier agreement – whether established that conduct constituted a tort of conspiracy – whether conduct was unlawful – whether established that a purpose of conduct was to harm second plaintiff – whether established that second plaintiff has suffered loss or damage caused by conduct.
TORTS – tort of inducing breach of contract – whether conduct constituted breach of earlier agreement – whether third defendant induced or procured second defendant to engage in conduct – whether third defendant had sufficient knowledge of terms of previous agreement – whether third defendant had requisite intention for second defendant to breach the previous agreement.
TRADE PRACTICES – misleading or deceptive conduct – where representations were made on website registered to company not party to proceedings – whether third defendant engaged in trade or commerce between Australia and another country – whether third defendant engaged in conduct involving the use of telegraphic or telephonic services – whether established that representations were made by third defendant – whether representations were misleading or deceptive or likely to mislead or deceive.
TRADE PRACTICES – unconscionable conduct – whether second and third defendants are corporations engaged in trade or commerce – whether plaintiffs were under a special disadvantage known to second and third defendants – whether second and third defendants unconscientiously took advantage of plaintiffs’ special disadvantage – whether second and third defendants were engaged in conduct in connection with supply or possible supply of goods or services – whether second and third defendants engaged in unconscionable conduct under Australian Consumer Law ss 20 and 21.
INTELLECTUAL PROPERTY – copyright – groundless threats of legal proceedings – whether third defendant made threats in respect of infringement of copyright – whether statements constituted groundless threats of copyright infringement.
WORDS AND PHRASES – “interest”, “customer”.
INTELLECTUAL PROPERTY – copyright – original works in which copyright subsists – whether copyright subsists in each update or new release of software and user documentation – whether first cross-claimant owned copyright in software releases in relevant periods.
INTELLECTUAL PROPERTY – copyright – infringement – whether third cross-defendant infringed copyright in software – whether first, second and fourth cross-defendants had authorised alleged copyright infringement – liability of director of cross-defendants – whether cross-claimants are estopped from bringing an action for infringement of copyright – whether additional damages should be awarded under Copyright Act 1968 (Cth) s 115(4).
TRADE PRACTICES – misleading or deceptive conduct – whether established that alleged representations were made by first, second and third cross-defendants – whether representations were misleading or deceptive or likely to mislead or deceive – whether cross-claimants had relied on alleged representations – whether established that loss and damage suffered by cross-claimants was caused by representations – accessorial liability – application of Australian Consumer Law ss 18 and 29.
EQUITY – breach of confidentiality – whether information in licence key generator is property – whether information is confidential – whether second and third cross-defendants owed an obligation of confidentiality to cross-claimants – whether second and third cross-defendants breached obligation of confidence.
INTELLECTUAL PROPERTY – trade marks – infringement – where third cross-defendant had used phrase on website – whether first cross-claimant has standing to bring claim – whether cross-claimant is entitled to be registered as owner of registered trade mark – whether conduct of cross-defendants constituted trade mark infringement – whether cross-defendants are liable for additional damages.