Entirity Business Services v Garsoft (No 2) - [2011] FCA 334

FEDERAL COURT OF AUSTRALIA
Entirity Business Services v Garsoft (No 2) [2011] FCA 334

Citation: Entirity Business Services v Garsoft (No 2) [2011] FCA 334

Parties: ENTIRITY BUSINESS SERVICES PTY LTD v GARSOFT PTY LTD, SCION BUSINESS SERVICES PTY LTD and ANTHONY GARRARD

File number(s): NSD 1418 of 2008

Judge: MOORE J

Date of judgment: 8 April 2011

Catchwords: COSTS – multiple claims against multiple respondents – where applicant succeeded on only one claim against one respondent and not the other – apportionment of costs awarded – where judgment awarded is less that $100,000 and copyright claim failed – can relief be sought from effect of O 62 r 36A – where judgment in cross-claim is less than $100,000 – question on effect of O 62 r 36A(2) – where offer of compromise made with one working day before expiry – whether conduct of applicant was imprudent or unreasonable and indemnity costs should be awarded – where motion filed for dismissal of application for want of prosecution is dismissed – question of who is entitled to costs

Legislation: Federal Court Rules O 62

Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited
Entirity Business Services Pty Ltd v Garsoft Pty Ltd [2011] FCA 76, cited
Haviv Holdings Pty Ltd v Howards Storage World Pty Ltd (No 2) [2009] FCA 652, cited
Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84, cited
Nokia Corporation v Liu [2009] FCA 20, cited
Olivaylle Pty Ltd v Flottwweg GMBH & Co KGAA (No 5) [2009] FCA 571, cited
Rooney v ABB Grain Ltd (No 2) [2011] FCA 231, cited
Ruaro v Ferrari [2008] FCA 307, cited
Universal Music Australia Pty Ltd v Miyamoto [2004] FCA 982, cited

Date of hearing:

7, 8, 9 and 10 June 2010, 5 August 2010

Place: Sydney

Division: General Division

Category: Catchwords

Number of Paragraphs: 11

Counsel for the Applicant: M Elliott

Solicitor for the Applicant: Turner Freeman

Counsel for the Respondents: M White and B Kaplan

Solicitor for the Respondents: Dibbs Barker

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1418 of 2008

BETWEEN:
ENTIRITY BUSINESS SERVICES PTY LTD
Applicant

AND:
GARSOFT PTY LTD
First Respondent

SCION BUSINESS SERVICES PTY LTD
Second Respondent

ANTHONY GARRARD
Third Respondent

JUDGE:

MOORE J

DATE OF ORDER:

8 APRIL 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The first respondent pay the applicant $39,982.50 plus interest.
2.The applicant's application otherwise be dismissed.
3.The first respondent pay the applicant 55% of its costs of its application as agreed or taxed.
4.The applicant pay the respondents 45% of their costs of the applicant's application as agreed or taxed.
5.The applicant pay the first respondent $28,673.08 plus interest.
6.The applicant pay the first respondent its costs of its cross-claim as agreed or taxed.
7.The applicant pay the respondents their costs of the respondents’ notice of motion filed 30 March 2010 as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FCA 334
Decision Date: 8 April 2011

CaseChat Overview and Summary

Entirity Business Services filed a suit against Garsoft and Garsoft Pty Ltd in the Federal Circuit and Family Court of Australia. The applicant sought relief in relation to multiple claims, including breach of contract and copyright infringement. The court was tasked with determining the apportionment of costs between the parties, particularly in light of the differing outcomes on the various claims. The applicant succeeded on only one claim against one respondent and did not succeed on the other claims.

The central legal issues revolved around the implications of Order 62 Rule 36A of the Federal Circuit and Family Court Rules 2000 concerning costs where the judgment amount is less than $100,000. The court also considered whether the applicant's conduct warranted indemnity costs due to an offer of compromise made just before the deadline. Furthermore, the court deliberated on the entitlement to costs following the dismissal of a motion to dismiss the applicant's application for want of prosecution.

The court found that the first respondent should pay the applicant $39,982.50 plus interest for the successful claim. However, the applicant's overall application was dismissed. The court determined that the first respondent should bear 55% of the applicant's costs of the application, while the applicant should bear 45% of those costs. Additionally, the applicant was ordered to pay the first respondent $28,673.08 plus interest. The applicant was also required to pay the first respondent's costs of its cross-claim and the respondents' costs of their notice of motion filed on 30 March 2010.

Orders

Orders of the court

1. The first respondent pay the applicant $39,982.50 plus interest.

2. The applicant's application otherwise be dismissed.

3. The first respondent pay the applicant 55% of its costs of its application as agreed or taxed.

4. The applicant pay the respondents 45% of their costs of the applicant's application as agreed or taxed.

5. The applicant pay the first respondent $28,673.08 plus interest.

6. The applicant pay the first respondent its costs of its cross-claim as agreed or taxed.

7. The applicant pay the respondents their costs of the respondents’ notice of motion filed 30 March 2010 as agreed or taxed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Entirity Business Services v Garsoft (No 2) [2011] FCA 334
Parties:	ENTIRITY BUSINESS SERVICES PTY LTD v GARSOFT PTY LTD, SCION BUSINESS SERVICES PTY LTD and ANTHONY GARRARD
File number(s):	NSD 1418 of 2008
Judge:	MOORE J
Date of judgment:	8 April 2011
Catchwords:	COSTS – multiple claims against multiple respondents – where applicant succeeded on only one claim against one respondent and not the other – apportionment of costs awarded – where judgment awarded is less that $100,000 and copyright claim failed – can relief be sought from effect of O 62 r 36A – where judgment in cross-claim is less than $100,000 – question on effect of O 62 r 36A(2) – where offer of compromise made with one working day before expiry – whether conduct of applicant was imprudent or unreasonable and indemnity costs should be awarded – where motion filed for dismissal of application for want of prosecution is dismissed – question of who is entitled to costs
Legislation:	Federal Court Rules O 62
Cases cited:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited Entirity Business Services Pty Ltd v Garsoft Pty Ltd [2011] FCA 76, cited Haviv Holdings Pty Ltd v Howards Storage World Pty Ltd (No 2) [2009] FCA 652, cited Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd (2010) 182 FCR 84, cited Nokia Corporation v Liu [2009] FCA 20, cited Olivaylle Pty Ltd v Flottwweg GMBH & Co KGAA (No 5) [2009] FCA 571, cited Rooney v ABB Grain Ltd (No 2) [2011] FCA 231, cited Ruaro v Ferrari [2008] FCA 307, cited Universal Music Australia Pty Ltd v Miyamoto [2004] FCA 982, cited
Date of hearing:	7, 8, 9 and 10 June 2010, 5 August 2010
Place:	Sydney
Division:	General Division
Category:	Catchwords
Number of Paragraphs:	11
Counsel for the Applicant:	M Elliott
Solicitor for the Applicant:	Turner Freeman
Counsel for the Respondents:	M White and B Kaplan
Solicitor for the Respondents:	Dibbs Barker

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1418 of 2008

JUDGE:	MOORE J
DATE OF ORDER:	8 APRIL 2011
WHERE MADE:	SYDNEY