Bitech Engineering v Flameglow Pty Ltd (in liq) - [2010] FCA 1271

FEDERAL COURT OF AUSTRALIA
Bitech Engineering v Flameglow Pty Ltd (in liq) [2010] FCA 1271

Citation: Bitech Engineering v Flameglow Pty Ltd (in liq) [2010] FCA 1271

Parties: BITECH ENGINEERING v FLAMEGLOW PTY LTD (IN LIQUIDATION) (ACN 117 672 518); FLAMEGLOW PTY LTD (IN LIQUIDATION) (ACN 117 672 518) v BITECH ENGINEERING

File number: NSD 105 of 2007

Judge: FOSTER J

Date of judgment: 17 November 2010

Legislation: Corporations Act 2001 (Cth), s 500

Cases cited: Bitech Engineering v Flameglow Pty Ltd (In Liquidation) [2010] FCA 1079

Date of hearing: 17 November 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 12

Counsel for the Applicant/ Cross-Respondent: Mr PA Maddigan

Solicitor for the Applicant/ Cross-Respondent: DLA Phillips Fox

Counsel for the Respondent/Cross-Claimant: The Respondent/Cross-Claimant was excused from appearing

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 105 of 2007

BETWEEN:
BITECH ENGINEERING
Applicant/Cross-Respondent

AND:
FLAMEGLOW PTY LTD (IN LIQUIDATION) (ACN 117 672 518)
Respondent/Cross-Claimant

JUDGE:

FOSTER J

DATE OF ORDER:

17 NOVEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The Notice of Motion filed by the applicant on 10 November 2010 be dismissed.
2.There be no orders as to the costs of that Notice of Motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 105 of 2007

BETWEEN:
BITECH ENGINEERING
Applicant/Cross-Respondent

AND:
FLAMEGLOW PTY LTD (IN LIQUIDATION) (ACN 117 672 518)
Respondent/Cross-Claimant

JUDGE:

FOSTER J

DATE:

17 NOVEMBER 2010

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 30 September 2010, I delivered a judgment (Bitech Engineering v Flameglow Pty Ltd (In Liquidation) [2010] FCA 1079) in which, pursuant to s 500 of the Corporations Act 2001 (Cth), I granted leave to the applicant to proceed against the respondent for the purpose of seeking certain specific orders which had been set out in a Notice of Motion filed by the applicant on 12 August 2010. Leave was necessary because the respondent is in liquidation. At the time I delivered that judgment, the question of infringement had been settled, at least to the level of the Full Court of this Court, and the applicant was seeking to obtain information as to the sales of the infringing products which had been made by the respondent with a view to electing the form of pecuniary relief which it would pursue.
In the course of proceeding down that path, the applicant became aware that Ogilvie Distributors Pty Limited (Ogilvie Distributors), a company which appears to be related to the respondent and which appears to be controlled by Mr Donald Ogilvie, had also apparently sold products which the applicant will contend infringed its patent. In my judgment of 30 September 2010, I made orders which, to some extent, facilitated the applicant’s inquiries as to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bitech Engineering v Flameglow Pty Ltd (in liq)

Details

AGLC: Bitech Engineering v Flameglow Pty Ltd (in liq) [2010] FCA 1271
Case: [2010] FCA 1271
Decision Date

CaseChat Overview and Summary

Bitech Engineering sought to proceed against Flameglow Pty Ltd in relation to an infringement of a patent. Flameglow Pty Ltd was in liquidation, necessitating leave under s 500 of the Corporations Act 2001 (Cth) to proceed against the company. Bitech Engineering sought leave to maintain the current proceeding so that Mr Ogilvie and Ogilvie Distributors might be joined as respondents to the proceeding. The applicant was now unlikely to proceed against Flameglow Pty Ltd and instead intended to proceed against Ogilvie Distributors.

The court was required to decide whether to grant leave for the applicant to maintain the proceeding to join Mr Ogilvie and Ogilvie Distributors as respondents. The court also needed to determine whether it was appropriate to grant leave to join new parties and raise an entirely new case when judgments on liability had already been given.

The court dismissed the applicant's notice of motion, finding that it was not appropriate to grant leave to join new parties and raise an entirely new case when judgments on liability had already been given. The court reasoned that the filtering process contemplated by s 500 of the Corporations Act did not include granting leave to run a whole new case against new parties. The court further stated that it was undesirable for an applicant to add fresh parties and raise an entirely new case after judgments had been delivered. The court held that it was not enough for the applicant to submit that it was not aware of the involvement of Ogilvie Distributors in the sale of the infringing products. The court also noted that it was open to the applicant to bring a fresh proceeding against Ogilvie Distributors and Mr Ogilvie.

The court ordered that the notice of motion filed by the applicant on 10 November 2010 be dismissed and there be no orders as to the costs of that notice of motion.

Orders