Gap (ITM) Inc v Temporary Department Store Pty Ltd - [2006] FCA 725

FEDERAL COURT OF AUSTRALIA
Gap (ITM) Inc v Temporary Department Store Pty Ltd [2006] FCA 725
PRACTICE AND PROCEDURE – application for summary judgment – trade mark infringement claim – compromised by deed of settlement - no arguable defence
Federal Court of Australia Act 1976 (Cth), s 31A(1)(b)
Migration Litigation Reform Act 2005 (Cth), Item 44 Pt 2 Sch 1
Trade Mark Act 1995 (Cth), s 120
Federal Court Rules, O 20 r 1, O 45 r 7
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to
Geoffrey Inc v Luik (1997) 38 IPR 555 referred to
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 referred to
Webster v Lampard (1993) 177 CLR 598 referred to
Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 40 referred to
Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 cited
Rourke v Victorian Finance Guarantee and Share Co Ltd (1894) 20 VLR 8 referred to
Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc [1968] Qd R 379 referred to
Commonwealth of Australia v Verwayen (1990) 170 CLR 394 referred to
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 referred to
Reid v Interarch Australia Pty Ltd [2000] FCA 1328 considered
Phillips v Walsh (1990) 20 NSWLR 206 referred to
GAP (ITM) INC and OLD NAVY (ITM) INC v TEMPORARY DEPARTMENT STORE PTY LTD (ACN 105 521 346), RICHMOND WHOLESALE PTY LTD (ACN 105 827 281), TIMOTHY SIMON DOUGLAS CLARK and RAMESH PARERA
VID 112 OF 2005
KENNY J
9 JUNE 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 112 OF 2005

BETWEEN:

GAP (ITM) INC
FIRST APPLICANT

OLD NAVY (ITM) INC
SECOND APPLICANT

AND:

TEMPORARY DEPARTMENT STORE PTY LTD
(ACN 105 521 346)
FIRST RESPONDENT

RICHMOND WHOLESALE PTY LTD
(ACN 105 827 281)
SECOND RESPONDENT

TIMOTHY SIMON DOUGLAS CLARK
THIRD RESPONDENT

RAMESH PARERA
FOURTH RESPONDENT

JUDGE:

KENNY J

DATE OF ORDER:

9 JUNE 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.There be summary judgment pursuant to Order 20, Rule 1 of the Federal Court Rules for the applicants and against the second and fourth respondents in terms of the orders set out hereinafter.
2.On or before 30 June 2006, the second and fourth respondents pay the applicants $40,000, plus any applicable GST.
3.The second and fourth respondents pay the applicants interest on the said sum of $40,000 at the penalty interest rate from 6 March 2006 to the date of payment.
4.The second and fourth respondents pay the applicants’ costs of their motion, notice of which is dated 18 April 2006, on an indemnity basis, such costs to be taxed forthwith.
5.On or before 30 June 2006, the second and fourth respondents comply with the undertakings that they gave to the Court on 27 January 2006, by delivering up the…

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: [2006] FCA 725
Decision Date: 9 JUNE 2006

CaseChat Overview and Summary

Gap (ITM) Inc filed a case against Temporary Department Store Pty Ltd in the Federal Court of Australia. Gap (ITM) Inc sought summary judgment against the second and fourth respondents over an outstanding debt of $40,000, plus GST, interest, and costs. The legal issues the Court had to decide included whether the second and fourth respondents owed Gap (ITM) Inc the claimed sum, and if so, whether the applicants were entitled to summary judgment. The Court held that Gap (ITM) Inc was entitled to summary judgment against the second and fourth respondents, as they had failed to provide any evidence to counter Gap's (ITM) Inc claim for the outstanding debt. The Court also noted that the respondents had made an undertaking to deliver up certain items, and ordered them to comply with the terms of that undertaking. The Court further ordered that the directions hearing and the hearing of the applicants’ motion be vacated and granted the second and fourth respondents' solicitor leave to file a notice of ceasing to act for the respondents. The Court ordered the second and fourth respondents to pay Gap (ITM) Inc the sum of $40,000, plus GST, interest, and costs.

Orders

Orders of the court

1. There be summary judgment pursuant to Order 20, Rule 1 of the Federal Court Rules for the applicants and against the second and fourth respondents in terms of the orders set out hereinafter.

2. On or before 30 June 2006, the second and fourth respondents pay the applicants $40,000, plus any applicable GST.

3. The second and fourth respondents pay the applicants interest on the said sum of $40,000 at the penalty interest rate from 6 March 2006 to the date of payment.

4. The second and fourth respondents pay the applicants’ costs of their motion, notice of which is dated 18 April 2006, on an indemnity basis, such costs to be taxed forthwith.

5. On or before 30 June 2006, the second and fourth respondents comply with the undertakings that they gave to the Court on 27 January 2006, by delivering up the things the subject of the undertaking and by an affidavit verifying such delivery up.

6. The directions hearing and the hearing of the applicants’ motion, notice of which is dated 25 November 2005, listed for 14 July 2006 be vacated.

7. Henry Magistrado of Fernandez & Johnson, solicitors, Level 1, 17 Carrington Road, Box Hill Victoria, 3128, solicitor(s) on the record for the second and fourth respondents, be granted leave to file a notice of ceasing to act for the second and fourth respondents, on conditions that:

(a) such notice specifies as the address for service upon the second and fourth respondents the fourth respondent’s addresses in Australia, both residential and business, and the second respondent’s addresses in Australia, both registered office and business, last known to Mr Magistrado;

(b) Mr Magistrado serves a copy of such notice on the second and fourth respondents together with a copy of these orders and a copy of the undertaking given by him on behalf of the second and fourth respondents on or before 16 June 2006;

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 112 OF 2005

BETWEEN:	GAP (ITM) INC FIRST APPLICANT OLD NAVY (ITM) INC SECOND APPLICANT
AND:	TEMPORARY DEPARTMENT STORE PTY LTD (ACN 105 521 346) FIRST RESPONDENT RICHMOND WHOLESALE PTY LTD (ACN 105 827 281) SECOND RESPONDENT TIMOTHY SIMON DOUGLAS CLARK THIRD RESPONDENT RAMESH PARERA FOURTH RESPONDENT
JUDGE:	KENNY J
DATE OF ORDER:	9 JUNE 2006
WHERE MADE:	MELBOURNE