Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd

[1998] FCA 1448

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 639 of 1998

BETWEEN:	CORTIS EXHAUST SYSTEMS PTY LIMITED APPLICANT
AND:	KITTEN SOFTWARE PTY LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	3 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-tempore Judgment

In this matter, there is an application before me to vacate a self-executing order for judgment, which was made by consent on 16 October 1998.  I am satisfied that there has been, at least, purported compliance with the orders in relation to the request for particulars.  I am also influenced by the fact that a letter was written on 20 October 1998 by Tzovaras Yandell, the solicitor for Kitten Software Pty Limited, indicating that they had considered, after looking at the matter further, that the appropriate course was to seek costs rather than to seek judgment.  Although the letter is ambiguous, I am satisfied that it can reasonably convey an intention to seek simply costs and not to pursue the self-executing order.

In the circumstances I am satisfied that this is a case where the self-executing order should be vacated and according I grant the application.  However, I consider that because the self-executing order was consented to, it is appropriate that the applicant, Cortis Exhaust Systems Pty Ltd, should bear the costs of this application.  I also think it is appropriate that those costs should be borne on an indemnity basis. I give leave so that the costs orders can be taken out forthwith and that the amount recoverable be as fixed or agreed.

As far as the application made by Kitten Software to strike out the statement of claim, I dismiss that application but I will make no order as to costs.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             3 November 1998

Solicitor for the Applicant on the Motion:	Tzovaras Yandell
Counsel for the Respondent on the Motion:	Mr Hodgekiss
Solicitor for the Respondent on the Motion:	Westside Lawyers
Date of Hearing:	3 November 1998
Date of Judgment:	3 November 1998