: In this action, the claim of H & R Johnson Tiles Ltd ('the first plaintiff') and Norcros Industry (International) Ltd ('the second plaintiff') against H & R Johnson (M) Bhd (formerly known as 'H & R Johnson (M) Sdn Bhd') ('the defendant') is centred on two main causes of action, namely:

(1) passing off;

(2) the plaintiffs' contractual rights arising under the technical aid agreement dated 15 December 1976 ('TAA') or alternatively, an implied agreement upon the terms of the TAA between the first plaintiff and the defendant.

The dispute revolves over the rights to use the names H & R Johnson and Johnson ('the trade marks') and the 'Tile-on-Tile' Logo ('the logo') in relation to ceramic tiles in Malaysia.

For the record, the witnesses for both parties gave their evidence-in-chief by way of written statements. PW1 and PW2 gave evidence in England by virtue of an order issued by the court here. In proceedings before me, it was again agreed by the parties that the evidence be recorded by computerised transcription system through the personnel of a company from Hong Kong. This system helped to expedite the proceedings.

Before the start of the proceedings, both counsels agreed to put in agreed bundle of documents. However, it was not initially clear as to whether the agreed documents would include agreement as to the contents of the documents as well. Dato Kandan, counsel for the plaintiffs, intimated that the documents are agreed but subject to proof, that is, they have to be referred for them to go in. Miss Ambiga, counsel for the defendant, seemed to agree as she indicated that the contents are not admitted (see p 3 of the first day's proceedings).

The following documents were marked accordingly:

(1) plaintiffs' bundle of documents — PB1 to 10.

(2) defendant's bundle of documents — DB(A) to (I) (11 bundles).

(3) bundle of pleadings — BP.

(4) plaintiffs' opening address — POA.

At the close of the proceedings, counsels for both parties seemed to disagree as to the admissibility of the bundle of documents vis-a-vis their contents. I will consider and give a ruling on this issue later in my judgment.

Background

The defendant was incorporated in 1976 as a result of a joint venture between the second plaintiff, Dunlop Malaysia Industries Bhd ('Dunlop'), Lembaga Tabung Angkatan Tentera ('LTAT') and Koperasi Polis DiRaja (M) Bhd ('KPDMB'). The purpose of the joint venture it seemed was to further exploit the trade marks H & R Johnson and Johnson names, goodwill and reputation attaching thereto by manufacturing tiles locally using technology and know-how developed by the plaintiffs over the past 150 years.

A copy of the joint venture agreement dated 29 December 1976 is at pp 12-26 of DBA ('JVA'). According to the JVA, the shareholding of the defendant at the material time made up of: (i)Dunlop34% (ii)Johnson (second plaintiff)15% (iii)LTAT30% (iv)KPDMB21% 100%

Under cl 7(a) of the JVA, the defendant shall enter into an agreement with the second plaintiff for the exclusive manufacturing rights in Malaysia under the technical know-how and patents (if any) of the second plaintiff and for selling rights within and outside Malaysia in terms of the draft annexed thereto and marked 'A'.

The agreement referred to in the JVA is the technical aid agreement dated 15 December 1976 ('TAA') and a copy is set out at pp 1-11 of DBA (pp 163-173 of Vol I of PB).

These two documents are not disputed and the various clauses therein will be referred to as and when they are relevant in considering the issues before the court.

In 1991, the second plaintiff divested itself of that 15% equity interest it held in the defendant following a change in the management structure of the defendant. However, the plaintiffs claimed that they continued to cooperate with the defendant and regarded and treated the defendant as a member of the worldwide H & R Johnson Group.

The TAA expired on 30 September 1992. There were negotiations between the parties for its renewa