Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. WARD P: I agree with Payne JA.

2. PAYNE JA: This is an appeal brought by Botanical Water Technologies IP Ltd (the first appellant), MyCo Pty Ltd (renamed Biocheese Pty Ltd on 3 September 2021, the second appellant), and Mr Terry Paule (the third appellant). Mr Paule is a director of MyCo and controls the company together with his brother, Mr S Paule. I will refer in this judgment to Mr Terry Paule as "Mr Paule" and to his brother as "Mr S Paule". MyCo and Mr Paule invested in technology developed by Dr Ambrosios Kambouris (the second respondent) for the extraction of drinkable water (referred to by the parties as "botanical water") from wastewater sourced from the processing of fruit, vegetables and sugar cane. Mr David Driver (the first respondent) was a business associate of Dr Kambouris who also invested in the technology. Mr Driver acquired a 27% interest in the intellectual property in the technology through DJD Trading Pty Ltd (DJD) (the fourth respondent).

Relevant facts

3. There was no challenge by the appellants to any of the facts found by the primary judge and no statement under r 51.36 of the Uniform Civil Procedure Rules 2005 (NSW) was filed. The importance of compliance with that requirement has been emphasised by this Court on numerous occasions: Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [139] per Leeming JA; Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167 at [52]-[56] per Bell P; Best v Rosamond [2020] NSWCA 90 at [21] per Payne JA. The reason the Court requires compliance with r 51.36(2) is obvious. In a case such as the present, whilst various conclusions reached by the primary judge are challenged, the appellants have not, or have not clearly, challenged any of the facts upon which those conclusions are based. The failure to identify the facts which are challenged creates a serious hurdle for an appellant to overcome.

4. In approximately 2010, Dr Kambouris developed technology for the extraction of drinkable water from wastewater sourced from the processing of fruit, vegetables and sugar cane, and subsequently obtained a patent for that technology (the Recovering Water Patent). On 17 May 2013, Dr Kambouris transferred the Recovering Water Patent to the third respondent, Kambouris Shares Pty Ltd (KSP), in which he owned 80% of the shares. Dr Kambouris also applied for various related patents in Australia and other jurisdictions between 2010 and 2018. The primary judge described the relevant suite of patents as "the Patents" and I will do the same. Similarly, I refer to the Patents, trademarks and other knowhow related to the botanical water technology collectively as the intellectual property.

5. On 11 October 2011, Dr Kambouris incorporated Aqua Botanical Beverages (Australia) Pty Ltd (ABBA). He was the sole director and shareholder. ABBA is now in liquidation. In late 2013 or early 2014, Mr Driver agreed to become the CEO (and later a director) of ABBA, acquiring a 27% interest in the Patents through DJD, and a 5%, later increased to 15.25%, shareholding in ABBA through L & L Wood Pty Ltd, a separate company associated with Mr Driver.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19834eae1da18c5e2d6af215)

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