Eastland Technology Australia Ltd v McHutchison - [2003] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EASTLAND TECHNOLOGY AUSTRALIA LTD -v- McHUTCHISON & ORS [2003] WASC 35

CORAM: ACTING MASTER CHAPMAN

HEARD: 30 JANUARY 2003

DELIVERED : 11 MARCH 2003

FILE NO/S: CIV 1241 of 2002

BETWEEN: EASTLAND TECHNOLOGY AUSTRALIA LTD
Plaintiff
AND
ROY McHUTCHISON & ORS
Defendants

Catchwords:

Practice and procedure - Summary judgment by the plaintiff pursuant to O 14 r 1 - Summary judgment application by the defendant pursuant to O 16

Legislation:

Nil

Result:

Plaintiff's application dismissed
Defendant's application partially successful

Category: B

Representation:

Counsel:

Plaintiff: Mr J McGrath
Defendants: Mr C G Colvin SC

Solicitors:

Plaintiff: E J Picton-Warlow
Defendants: B W Ashdown

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

Nil

Case(s) also cited:

Forsayth NL v Northern Gold NL, unreported; SCt of WA; Library No 940012; 20 January 1994
Green v All Motors Ltd [1917] 1 KB 625
In re Southern Livestock Producers Ltd [1964] 1 WLR 24
Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48

ACTING MASTER CHAPMAN: I have two matters before me. The first was filed by the plaintiff on 15 March 2002 and seeks judgment against the defendants pursuant to O 14 r 1 of the Rules of the Supreme Court. The second was filed by the defendants on 7 October 2002 and seeks judgment in favour of the defendants pursuant to s 16.
At the hearing of the special appointment counsel for the plaintiff announced that the summary judgment application brought by the plaintiff could be dismissed. I was also advised the plaintiff would seek to amend its statement of claim to delete and withdraw the patent and design claim and thus the argument at the special appointment could be confined to what was referred to by the parties as the computer claim.
So far as the computer claim is concerned the parties advise that this could be conveniently divided into two parts, namely the leased equipment, which is the equipment listed in par 6 of the statement of claim, save for the Apollo series 700 workstation, and the owned equipment. The owned equipment consists of the equipment listed at par 5 of the statement of claim, together with the Apollo series 700 workstation described in par 6 of the statement of claim.
Counsel for the defendants submitted that there are four matters which needed to be dealt with, namely:
(1)should there be judgment dismissing the claim to the computer equipment which the plaintiff says it owns;
(2)should there be judgment dismissing the claim to the leased equipment as against the first and second defendants;
(3)whether the plaintiff can amend and delete without leave the other claims which have been described as the design claim and the patent claim; and
(4)the costs that flow.
As to the first matter, counsel for the defendants submitted that the evidence as to the ownership needs to be considered carefully. Four computers were built for various parties associated with the plaintiff. It is argued that all Mr Sharland can say is that four computers were built and provided for and there is no evidence to contradict the defendants' version. With this, I would agree.
Counsel for the defendants submits that there is no evidence at all to support the position that either the first defendant or the second defendant holds any of the leased equipment in their own capacity. With this I would also agree.
The defendants make a concession in relation to the claim to the leased equipment against the third defendant and there is a dispute as to a claim the third defendant may have over the equipment for work done by it.
Counsel for the defendants submit that what is proposed by the plaintiff is that the computer claim remain on foot but the statement of claim be amended by deleting the balance of the claims. I accept that in substance what the plaintiff seeks to do is to discontinue what is called the patent and the design claims and that, in my view, would require leave pursuant to O 23.
As to the question of costs, even if one accepts that on 1 May 2002 the solicitors for the plaintiff told the solicitor for the defendants that he would limit the request to judgment for the return of goods only, the way this matter proceeded thereafter was not consistent with that observation. In my view, neither the defendants nor the Court were put on proper notice as to the issues which would be on foot at the special appointment until several days before the matter was listed for hearing.
No application was, or has been made, to amend the summary judgment application and affidavit material filed after 1 May 2002 was not confined to the computer claim. It was not until 22 January 2002 the plaintiff's solicitors wrote a letter to the defendants' solicitors advising that it was to amend the statement of claim to delete and withdraw the design claim and the patent claim.
This unsatisfactory state of affairs was in large part contributed to because the plaintiff failed to comply with the programming orders made on 16 September 2002. Pursuant to the orders made on that date, the defendants were to file and serve written submissions by 28 October 2002. Those were in fact filed late on 20 November 2002. The plaintiff was to file and serve written submissions on or before 4 November 2002.
No application was made to extend that time and so far as the Court was concerned, the first it knew of any concessions was when the plaintiff filed its first set of submissions at 3.30pm on 28 January 2003. The plaintiff filed a supplementary outline of submissions at 2.40pm on 29 January 2003.
Counsel for the plaintiff concedes that costs should be borne by the plaintiff but resists the defendants' submissions that the costs should be on an indemnity basis.
In this case, both the Court and the defendants have been inconvenienced because of the lack of action on behalf of the plaintiff. More particularly, the plaintiff has chosen to ignore programming orders which, if they had been followed, the situation would most likely not have arisen. Not only have the defendants been inconvenienced, but they have been put to a substantial degree of costs which were unnecessary.
The design and patent claims were for a substantial amount and given those circumstances, it is not surprising the defendants chose to engage senior counsel to represent them at the special appointment. It is apparent that such a course would not have been followed if the plaintiff had advised the defendants of the true position earlier. Given the particular circumstances of this case, I consider costs on an indemnity basis is appropriate.
At the end of the special appointment the defendants put forward an amended minute of proposed orders based on their submissions. Counsel for the plaintiff agreed that the minute succinctly stated the position of dispute between the parties. In the circumstances I propose to make orders in terms of the defendants' minute but will give counsel an opportunity to address me further, if necessary, before I finalise the form of the orders.