Contact Internet Solutions Pty Ltd v Capital Networks Pty Ltd

[2004] FMCA 746

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONTACT INTERNET SOLUTIONS PTY LTD & ANOR v CAPITAL NETWORKS PTY LTD [2004] FMCA 746

TRADE PRACTICES – Misleading and deceptive conduct – Respondent served though not present at hearing – orders made in absence of Respondent.

Applicants: CONTACT INTERNET SOLUTIONS (ACN 104 750 665) and K-MAC POWERHEADS PTY LTD (ACN 078 225 555)

Respondent: CAPITAL NETWORKS PTY LTD
(ACN 080 342 301) trading as TOTALNIC

File No: MLG 234 of 2004

Delivered on: 14 May 2004

Delivered at: Melbourne

Hearing Date: 14 May 2004

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicants: Ms M Sharpe

Solicitors for the Applicants: Coadys

Counsel for the Respondent: No appearance

Solicitors for the Respondent: Robert James Lawyers

ORDERS

1. The contracts referred to in the Amended Statement of Claim are declared to be terminated.

2. The Respondent do all things necessary to effect the transfer of the registers of the following domain names to a register nominated by the Applicants by pre-paid post to the Respondent on or before 21 May 2004:

   (a)hitech-express.com;

   (b)sa-caravan-parks-assocation.com;

   (c)caravanaustralia.com;

   (d)goseeaustralia.net; and

   (e)kmac-powerheads.com.

3. The Respondent shall pay the Applicants' costs of and incidental to the application fixed in the sum of $3000. 

4. A sealed copy of this order be served upon the Respondent by pre-paid post on or before 19 May 2004 with service to be effected at the address as shown in the affidavit of Cherie Pearson sworn 13 May 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 234 of 2004

CONTACT INTERNET SOLUTIONS PTY LTD (ACN 104 750 665) and K-MAC POWERHEADS PTY LTD (ACN 078 225 555)

Applicant

and

CAPITAL NETWORKS PTY LTD (ACN 080 342 301) trading as TOTALNIC

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application by Contact Internet Solutions Pty Ltd and K-Mac Powerheads Pty Ltd (the Applicants) filed on 1 March 2004 orders are sought against Capital Networks Pty Ltd (the Respondent) which trades as ‘Totalnic’.  The claim relates to a contract whereby certain domain names of the applicants have been placed on a site governed and/or controlled by the respondent. 

2. When the matter was first before the court it was evident that there were difficulties in the jurisdiction of the court as then pleaded in the accompanying statement of claim.  The application was then the subject of orders by this court adjourning the matter to enable the applicants to file and serve an amended statement of claim.  I am satisfied upon the affidavit of service of Jacki Brauer sworn 15 April 2004 that the respondent had been appropriately and properly served with the application at first instance.  I am further satisfied that the amended statement of claim filed 26 April 2004 likewise being served upon the respondent and I am satisfied on the basis of the affidavit of Sherry Pearson sworn 13 May 2004.

3. When the matter was called this day the respondent did not appear.

   
   

   I should add for the sake of completeness that the affidavit of service of Ms Pearson included reference to service upon the respondent of a copy of the order made by this court on 16 April 2004.  That order clearly indicates the matter was adjourned to this day.  I was concerned in relation to the orders then sought this day in the absence of the respondent to ensure that there was at least some affidavit material before the court which substantially verified the claim made in the amended statement of claim.  Hence, the matter was stood down to enable the affidavit to be filed.

4. An affidavit sworn by Andrew Kenneth Ball on 14 May 2004 is now relied upon.  In that affidavit there is verification of matters raised in the pleadings; namely, that the applicants had registered certain domain names with the respondent.  Exhibited to the affidavit is the contract which is relevant in this matter which I would describe as a pro forma contract and it confirms that the applicants consistent with the pleading in the amended statement of claim have requested transfer of the domain names referred to in that statement of claim and in the affidavit. 

5. The domain names will be referred to presently.  It seems to me that in a matter of this kind where there has been no appearance or response filed by a respondent who I am satisfied has been properly served it is appropriate in the exercise of the court's discretion to expedite the matter and, to the extent that it is able, to grant relief now sought by the applicants.  The relief now sought in the proposed minutes of order include an order that the respondent does all things necessary to effect the transfer of the registration of the following domain names to a register nominated by the applicants:

a)hitech-express.com;

b)sa-caravan-parks-association.com;

c)caravan-australia.com.au;

d)goseeaustralia.net; and

e)kmac-powerheads.com.

1. A further order is sought in relation to indemnity costs.

2. During the course of submissions it seemed evident to me that on a proper reading of the pleadings and the affidavit material it is appropriate the court should make a declaration that the contracts referred to in the amended statement of claim are terminated and that in making an order in relation to the transfer of the domain names I should also include that the register to be nominated by the applicants be the subject of further order;  namely, that the applicants provide the name of the register to the respondent by prepaid post within seven days of the date of this order. 

3. Otherwise in relation to the issue of costs, although indemnity costs were sought, the applicants now, from a practical point of view, seek costs fixed in the sum of $3000 to be paid by the respondent to the applicants.  On the material before me I am satisfied it is appropriate to make the orders sought.  I am satisfied there is sufficient basis upon which I should make the declaration and order for transfer and consequential orders in the absence of the respondent.  I am satisfied that the respondent has been properly served. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  14 May 2004