Cullen Babington Hughes Pty Ltd v Maximizer Software Solutions Pty Ltd

[2012] WADC 119

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   CULLEN BABINGTON HUGHES PTY LTD -v- MAXIMIZER SOFTWARE SOLUTIONS PTY LTD [2012] WADC 119

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   ON THE PAPERS

DELIVERED          :   3 AUGUST 2012

FILE NO/S:   CIVO 50 of 2012

BETWEEN:   CULLEN BABINGTON HUGHES PTY LTD

Applicant

AND

MAXIMIZER SOFTWARE SOLUTIONS PTY LTD
First Claimant

SOE SOFTWARE PTY LTD
Second Claimant

Catchwords:

Practice - Practice under the Rules of the Supreme Court of Western Australia - Interpleaded - Provision for payment into court - Turns on its facts

Legislation:

Nil

Result:

The fund be paid into court

Representation:

Counsel:

Applicant:     No appearance

First Claimant                :     No appearance

Second Claimant           :     No appearance

Solicitors:

Applicant:     Cullen Babington Hughes

First Claimant                :     Somerville Legal

Second Claimant           :     HHG Legal Group

Case(s) referred to in judgment(s):

Nil

1. DEPUTY REGISTRAR HARMAN:  The first and second claimants chose to resolve certain differences between them by way of a deed of release.  Under the deed monies were paid into the trust account of the applicant to be held on trust with provision for payment as follows:

   3.2The parties shall cause the sum referred to in Clause 3.1 to be dealt with as follows:

   3.2.1upon the acceptance date, it shall be paid to SOE;

   3.2.2on the sunset date, one half thereof shall be paid to each party; and

   3.2.3if there is a dispute as to entitlement to such money, the trustee shall be a liberty to pay such money into court.

2. The proposition put by the first claimant is that payment by the applicant ought to be under cl 3.2.2; on the part of the second claimant, under 3.2.2.

3. The first claimant relies on the affidavit of Gavin Green sworn 4 May 2012 in which he deposes as follows:

   10.Clause 3.2.1 of the deed provided that the $85,000 should be paid to SOE provided that Maestro had been accepted by Jamcracker and Telstra.

   11.Clause 2.4 of the deed provides that Maestro shall be deemed to have been accepted on the earlier of the following dates.

   '2.4.1When Telstra and Jamcracker state in writing that Maestro will be offered generally to the customers of Telstra; or

   2.4.2On the date Maestro is, in fact, offered generally to the customers of Telstra.'

   12.Clause 4.1 of the deed provides that if Telstra and Jamcracker have not accepted Maestro within a period of 6 months from the date of deed of release, then either Maximiser or SOE may serve written notice on the other.

   13.The date the notice under clause 4.1 is served is defined in the deed of release as the 'sunset date'.

   14.Clause 3.2.2 of the deed provides that on the sunset date, $42.500 shall be paid to Maximizer and SOE, being one half of each of the $85,000 being held in Cullens' trust account.

   15.On 30 August 2011, Maximizer wrote to SOE and gave it the prescribed notice pursuant to clause 4.1 of the deed …

   16.On 2 September 2011 Maximizer wrote to Cullens and requested payment of $42,500 …

   17.Maximizer seeks payment of the sum of $42,500 to which it is entitled pursuant to clause 3.2.2 of the deed.

4. The second claimant relies on the terms of the affidavit of Frank William Taylor affirmed 22 May 2012.  At par 4 he deposes as follows:

   I agree with the brief description of the dispute between the First and Second Claimant's [sic] as contained within the affidavit of Gavin Green sworn 4 May 2012 in this action … other than in respect of the following:

   (a)Paragraph 4 - …

   (b)Paragraph 6 – the Second Claimant will allege in its submissions in the action and a substantive claim against the First Claimant that the Deed of Release … does not address the parties' rights upon a breach of the Deed, in particular clause 2.1;

   (c)Paragraph 14 – does not address the all [sic] of the relevant circumstances between the First Claimant and the Second Claimant.  It is the Second Claimant's contention that the Deed was only to take effect if both parties, having used their best efforts, could not market Maestro and that this could only have been achieved through the co-operation of third parties.  The Second Claimant alleges the First Claimant was required to facilitate the co-operation of third parties but, in breach of the Deed, did not.  Further, the Second Claimant alleges that if the Deeds terms are breached they do not preclude the First and Second Claimants from exercising rights and claims accruing to them against the other prior to the Deed's execution;

   (d)…

5. Clause 2.1 of the deed is as follows:

   After the payments referred to in clause 3.1, each of the parties shall use their best endeavours, as soon as reasonably possible, in order to do the following:

   2.1.1To cause Maestro to be accepted by Jamcracker and Telstra.

   2.1.2To cause Maestro to be offered for the general use by the customers of Telstra.

   2.1.3To cause Maestro to generate revenue for maximiser from its use by Jamcracker and Telstra.

6. At par 4(c) Taylor relies on the proposition that the deed does not address the rights of the parties in the event of breach of its terms, in particular, whether the first claimant was required to facilitate the co‑operation of third parties and failed to do so.

7. In my opinion there is sufficient evidence to justify the proposition raised by the second claimant that there is a dispute as to entitlement to the money held by the trustee and it follows that it be paid into court.

8. I anticipate that upon the provision of this determination the parties would recognise the need to engage in proceedings along the usual lines in order to resolve that dispute.  I propose that the application would be relisted at the request of one of the parties in order to facilitate the payment into court and for directions.