Bitech Engineering v Flameglow Pty Ltd (In Liquidation) - [2010] FCA 1079

FEDERAL COURT OF AUSTRALIA
Bitech Engineering v Flameglow Pty Ltd (In Liquidation) [2010] FCA 1079

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

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: 30 September 2010

Catchwords:
CORPORATIONS – application for leave to proceed against the respondent pursuant to s 500 of the Corporations Act 2001 (Cth) – application granted for limited purposes

PRACTICE AND PROCEDURE – whether the liquidator of the respondent should be compelled to provide sales and financial information relating to sales made by a related corporation of products in circumstances found to be an infringement of the applicant’s patent – order made

Legislation: Corporations Act 2001 (Cth), s 500

Cases cited: Bitech Engineering v Garth Living Pty Ltd [2010] FCAFC 75 related
Bitech Engineering v Garth Living Pty Ltd (2009) 84 IPR 78 related

Date of hearing: 30 September 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 12

Counsel for the Applicant: Mr PA Maddigan

Solicitor for the Applicant: DLA Phillips Fox

Counsel for the Respondent: The Respondent did not appear

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:

30 SEPTEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to s 500 of the Corporations Act 2001 (Cth), the applicant have leave to proceed against the respondent for the purpose of seeking the orders set out in paragraphs 2 to 7 of the applicant’s Notice of Motion filed on 12 August 2010.
2.The respondent file and serve by 21 October 2010, an affidavit providing full details of:
(a)All instances of the hire, sale, supply or other disposal by or on behalf of the respondent of any of:
(i)The heaters known at the trial before Foster J as the FG100, FG150, FG150-2 and FG400 heaters; and
(ii)Any other heater incorporating an apparatus within the scope of Claim 1 of Australian patent number 621713;

(the heaters)
(b)To the extent that it is able, all instances of the hire, sale, supply or other disposal by or on behalf of Ogilvie Distributors Pty Limited of any of the heaters;
(c)Revenue received by or on behalf of the respondent in respect of each instance of hire, sale, supply or other disposal of the heaters;
(d)To the extent that it is able, revenue received by or on behalf of Ogilvie Distributors Pty Limited in respect of each instance of hire, sale, supply or other disposal of the heaters;
(e)Costs incurred by or on behalf of the respondent in respect of each instance of hire, sale, supply or other disposal of the heaters;
(f)To the extent that it is able, costs incurred by or on behalf…

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 Liquidation)

Details

AGLC: Bitech Engineering v Flameglow Pty Ltd (In Liquidation) [2010] FCA 1079
Case: [2010] FCA 1079
Decision Date

CaseChat Overview and Summary

Bitech Engineering, a patent holder, sought leave to proceed against Flameglow Pty Ltd (in liquidation) for limited purposes. The primary legal issue was whether the liquidator of Flameglow Pty Ltd should be compelled to provide sales and financial information relating to sales made by a related corporation, Ogilvie Distributors Pty Ltd, of products found to infringe Bitech Engineering's patent. The Court considered the statutory provisions under the Corporations Act 2001 (Cth) and the relevance of the information sought to Bitech Engineering's claim for damages or an account of profits. The Court granted leave for Bitech Engineering to proceed against Flameglow Pty Ltd, limited to the extent that the liquidator could provide information, and required the liquidator to file an affidavit detailing specific sales, revenue, costs, and overheads associated with the infringing products. The Court made an order that the liquidator file and serve the affidavit by a specified date, annexing relevant documents, and fixed a date for further directions. The Court also reserved the costs of the Notice of Motion and required Bitech Engineering to notify the liquidator of the orders within a specified timeframe.

Orders