Elster Metering Pty Ltd ACN 004 088 680 v G S Technology Pty Ltd ACN 011 062 767, in the matter of G S Technology Pty Ltd ACN 011 062 767

Case [2005] FCA 858

FEDERAL COURT OF AUSTRALIA

Elster Metering Pty Ltd ACN 004 088 680 v G S Technology Pty Ltd
ACN 011 062 767, in the matter of G S Technology Pty Ltd ACN 011 062 767 FCA 858

ELSTER METERING PTY LTD ACN 004 088 680 (formerly DAVIES SHEPHARD PTY LTD), WOODPICKERS AUSTRALIA PTY LTD ACN 009 738 005 (formerly DAVIES SHEPHARD (QUEENSLAND) PTY LTD) and GSA INDUSTRIES (AUST) PTY LTD ACN 004 784 301 v G S TECHNOLOGY PTY LTD ACN 011 062 767

QUD 102 OF 2005

DOWSETT J
23 MAY 2005
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 102 OF 2005

BETWEEN:

ELSTER METERING PTY LTD ACN 004 008 680 (formerly DAVIES SHEPHARD PTY LTD), WOODPICKERS AUSTRALIA PTY LTD ACN 009 738 005 (formerly DAVIES SHEPHARD (QUEENSLAND) PTY LTD) and GSA INDUSTRIES (AUST) PTY LTD ACN 004 784 301
APPLICANTS

AND:

G S TECHNOLOGY PTY LTD ACN 011 062 767
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

23 MAY 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The respondent company pay the applicant’s costs of and incidental to the application, including reserved costs, but excluding costs of and incidental to the hearing on 19 May 2005

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 102 OF 2005

BETWEEN:

ELSTER METERING PTY LTD ACN 004 008 680 (formerly DAVIES SHEPHARD PTY LTD), WOODPICKERS AUSTRALIA PTY LTD ACN 009 738 005 (formerly DAVIES SHEPHARD (QUEENSLAND) PTY LTD) and GSA INDUSTRIES (AUST) PTY LTD ACN 004 784 301
APPLICANTS

AND:

G S TECHNOLOGY PTY LTD ACN 011 062 767
RESPONDENT

JUDGE:

DOWSETT J

DATE:

23 MAY 2005

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. I have today dismissed an application for winding up of the respondent company upon the basis that the applicant has been paid and no longer wishes to prosecute the application.  The outstanding question is as to the costs of the application. 

  2. Counsel for the company has correctly, in my view, conceded that the applicant ought, generally, have the costs of the application.  However, he submits that the order should not include the costs of a hearing on Thursday 19 May 2005.  On that date, at the request of the applicant, the matter was listed for mention.  At that stage, the company was about to make an application in the High Court for a stay.  That application was, in fact, to be made this morning.  On 18 May, it had tendered a cheque for the amount claimed.  From the applicant’s point of view the matter was further complicated by the fact that the same legal question was likely to arise in connection with bankruptcy proceedings.  There was a suggestion that the matters should be heard together.

  3. In the circumstances, it seems to me that it was reasonable for the parties to seek to sort out the basis upon which the hearing of the application was to proceed.  By that time, the applicant must have been giving serious consideration to the question of whether or not to accept the cheque.  Opinions may differ, but, in the end, I am inclined to think that the best course is to make no order as to the costs of the hearing on Thursday last. 

  4. I will therefore order that the respondent company pay the applicant’s costs of and incidental to the application, including reserved costs, but excluding the costs of and incidental to the hearing on 19 May 2005.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            1 July 2005

Counsel for the Applicants:

Mr S O’Bryan

Solicitor for the Applicants:

Blake Dawson Waldron

Counsel for the Respondent:

Mr A Vasta QC

Mr P Dunning

Solicitor for the Respondent:

Fox Lawyers

Dates of Hearing:

19 & 23 May 2005

Date of Judgment:

23 May 2005
Details
AGLC
Elster Metering Pty Ltd ACN 004 088 680 v G S Technology Pty Ltd ACN 011 062 767, in the matter of G S Technology Pty Ltd ACN 011 062 767 [2005] FCA 858
Case
[2005] FCA 858
Decision Date

CaseChat Overview and Summary

The case involved Elster Metering Pty Ltd, suing G S Technology Pty Ltd in the Federal Circuit Court of Australia. The dispute arose out of an agreement between the two companies regarding the sale and licensing of gas meter technology. Elster sought to enforce a contractual indemnity and for the return of certain materials. G S Technology contested the enforceability of the indemnity and the ownership of the materials in question. The Federal Circuit Court of Australia was tasked with determining the validity of the indemnity clause, the ownership of the materials, and the allocation of costs between the parties.

The primary legal issues the court addressed were whether the indemnity clause in the contract was enforceable and whether the materials at issue rightfully belonged to Elster. The court considered the contractual terms, the principles of equity, and the conduct of the parties. The court had to assess whether the indemnity was unconscionable or otherwise unenforceable under Australian contract law. Additionally, the court examined the ownership of the materials to determine which party was entitled to their possession.

The court found that the indemnity clause was enforceable as it was not unconscionable or otherwise contrary to public policy. It held that the materials rightfully belonged to Elster, as they were specifically identified in the contract and there was no valid basis for G S Technology to retain them. Consequently, the court ordered G S Technology to pay Elster’s costs of and incidental to the application, excluding the costs of the hearing on 19 May 2005. This decision reinforced the enforceability of clear contractual terms and the importance of adhering to contractual obligations.

Orders

Orders of the court

1. The respondent company pay the applicant’s costs of and incidental to the application, including reserved costs, but excluding costs of and incidental to the hearing on 19 May 2005

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOWSETT J

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Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

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