Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd Summary

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

CaseChat Overview and Summary

The case of Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd involves an application by Cortis Exhaust Systems Pty Ltd to vacate a self-executing order for judgment made by consent on 16 October 1998. The respondent, Kitten Software Pty Ltd, opposed the application and also sought to strike out the statement of claim. The matter was heard in the Federal Court of Australia, New South Wales District Registry.

The central legal issue before the court was whether the self-executing order should be vacated. This decision hinged on whether there was compliance with the orders for particulars and whether Kitten Software Pty Ltd intended to pursue costs instead of the self-executing order. Additionally, the court needed to determine whether the application to strike out the statement of claim should be allowed.

Justice Tamberlin, in delivering the judgment, concluded that the self-executing order should be vacated based on the applicant's purported compliance with the orders for particulars and the respondent's ambiguous letter indicating a preference for seeking costs rather than pursuing the self-executing order. The court found that Kitten Software Pty Ltd's letter could reasonably convey an intention to seek costs instead of judgment. Consequently, Justice Tamberlin granted the application to vacate the self-executing order but ruled that the applicant, Cortis Exhaust Systems Pty Ltd, should bear the costs of the application on an indemnity basis. The court dismissed the application to strike out the statement of claim without ordering costs.

No specific orders were made regarding the costs for the application to strike out the statement of claim. The court granted leave for the costs orders to be taken out forthwith and recoverable as fixed or agreed.

Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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