made any submissions directed to the strength of this claim and it is one in respect of which the respondent would most likely have a strongly arguable defence. As will be discussed later in these reasons, the applicants have indicated that they no longer press this aspect of their ACL claims.
57 The second way in which the misleading and deceptive conduct is put in [61]–[64] of the statement of claim is founded on the proposition that the respondent was himself engaged in trade or commerce, and that by supplying the Infamous mod to end users without warning them that their use of it might breach their EULA and ToS with the consequence that any further playing of GTA V by them may give rise to liability for copyright infringement. The respondent's liability for misleading and deceptive conduct is said to result from his failure to warn end users who he supplied the Infamous mod to of that possibility.
58 The respondent submitted that the respondent was not operating "in trade or commerce" or over a telegraphic or telephonic service when he designed and sold the Infamous mod and as such the claims pursued by the applicants under sch 2 of the Competition and Consumer Act 2010 (Cth) must fail.
59 Counsel for the applicants submitted (in short) that the respondent had accepted that he was operating in trade or commerce and by way of an internet or telephone service in his defence. Further he submitted that the size of the respondent's operations and its nature meant that he was operating in trade or commerce.
60 In his affidavit, Mr Anderson accepts that he (and his team) marketed and sold the Infamous mod from 2017 to 2018, and that over this period he received payments for Infamous via his personal PayPal account. In that time, the total revenue that flowed into Mr Anderson's PayPal account relating to the Infamous mod (on Mr Anderson's calculations) was $268,919.77 of which $158,782.39 was paid out as "wages" with hosting expenses and refunds totalling another $28,610.42. The remaining $81,526.96 is recorded by Mr Anderson as his profit from the venture.
61 Based on Mr Anderson's calculations the evidence reveals that he received a significant revenue stream from the Infamous mod. The evidence further reveals that the Infamous mod was marketed in various internet forums and that he paid "wages" to other members of his development team. These factors all weigh against an argument that Mr Anderson was not operating in trade or commerce at the relevant time. On the evidence contained in
