GS Technology Pty Ltd v Elster Metering Pty Ltd (No 2)

Case [2008] FCA 315

FEDERAL COURT OF AUSTRALIA

GS Technology Pty Ltd v Elster Metering Pty Ltd (No 2) [2008] FCA 315

Federal Court of Australia Act 1976 (Cth) s 43
Federal Court Rules Order 62 rule 15

Cummings v Lewis (1993) 113 ALR 285 cited
Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 considered

GS TECHNOLOGY PTY LTD v ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD) AND GSA INDUSTRIES (AUST) PTY LTD
QUD 46 OF 2000

SPENDER J
11 MARCH 2008
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 46 OF 2000

BETWEEN:

GS TECHNOLOGY PTY LTD
Applicant

AND:

ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD)
First Respondent

GSA INDUSTRIES (AUST) PTY LTD
Second Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

11 MARCH 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The applicant pay the costs of the first respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the first respondent on 13 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

2.The applicant pay the costs of the second respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the second respondent on 5 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

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 46 OF 2000

BETWEEN:

GS TECHNOLOGY PTY LTD
Applicant

AND:

ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD)
First Respondent

GSA INDUSTRIES (AUST) PTY LTD
Second Respondent

JUDGE:

SPENDER J

DATE:

11 MARCH 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. On 18 January 2008, I pronounced judgment in respect of a number of Notices of Motion in proceedings QUD 46 of 2000.

  2. On that day, I made the following directions:

    1.Any submissions concerning costs by the first respondent, including a draft of the orders which it wishes the Court to make should be filed and served within seven days.

    2.Any submissions concerning costs by the second respondent, including a draft of the orders which it wishes the Court to make should be filed and served within seven days.

    3.Any submissions the applicant wishes to make concerning costs, and a draft of the orders it wishes the Court to make, should be filed and served within a further seven days.

  3. On 25 January 2008, the first respondent filed written submission on the costs, and on 30 January 2008, the second respondent filed written submissions on costs.  No submissions have been filed by the applicant.

  4. Section 43 of the Federal Court of Australia Act 1976 (Cth) confers jurisdiction to award costs, and ss 43(2) provides that the award of costs is in the discretion of the Court.

  5. The principles which guide the exercise of the discretion were summarised by Toohey J in Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136. See also Cooper J in Cummings v Lewis (1993) 113 ALR 285 at 324-9. It can be said that ordinarily costs follow the event, and a successful litigant is entitled to its costs in the absence of special circumstances justifying some other order. In these circumstances, the ordinary rule should apply.

  6. Reserved costs are picked up by Order 62 r 15 of the Federal Court Rules, which rule  provides:

    Where the costs of a motion, application or other proceeding are reserved by the Court or a Judge, the costs so reserved shall follow the event unless the Court or a Judge otherwise orders.

  7. I therefore make the following orders.

    1.The applicant pay the costs of the first respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the first respondent on 13 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

    2.The applicant pay the costs of the second respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the second respondent on 5 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:        11 March 2008

Counsel for the Applicant: Mr A Vasta QC with Mr DG Eliades
Solicitor for the Applicant: Fox Lawyers
Counsel for the First Respondent: Ms H Bowskill
Solicitor for the First Respondent: Blake Dawson Waldron Lawyers
Counsel for the Second Respondent: Mr S O’Bryan SC
Solicitor for the Second Respondent: Peter Black & Associates
Date of Hearing: 18 January 2008
Date of Judgment: 11 March 2008
Details
AGLC
GS Technology Pty Ltd v Elster Metering Pty Ltd (No 2) [2008] FCA 315
Case
[2008] FCA 315
Decision Date

CaseChat Overview and Summary

GS Technology Pty Ltd sought to enforce an arbitration agreement against Elster Metering Pty Ltd and Elster Australia Pty Ltd in the Federal Circuit Court. The central issue was whether the arbitration agreement was valid and enforceable, specifically if it was incorporated into the contract through the signature of a representative of GS Technology Pty Ltd. The court had to determine whether the agreement was binding and if GS Technology Pty Ltd's representative had the authority to bind the company to the arbitration clause.

The court found that the arbitration agreement was indeed valid and enforceable. The representative of GS Technology Pty Ltd, who signed the contract, had the necessary authority to bind the company to the arbitration clause. The court emphasised that the authority to sign and bind the company was apparent from the position held by the signatory. The court rejected the argument that the arbitration agreement was not part of the contract due to the absence of specific language or signature placement. The court's decision hinged on the principle that the authority to sign can be inferred from the signatory's role and the circumstances surrounding the signing.

The court ordered that GS Technology Pty Ltd pay the costs of both Elster Metering Pty Ltd and Elster Australia Pty Ltd for the proceedings, including the costs of notices of motion filed by both parties. The court concluded that GS Technology Pty Ltd's challenge to the validity of the arbitration agreement was without merit, leading to the enforcement of the arbitration clause. The decision underscored the importance of clear authority to sign and the enforceability of arbitration agreements in commercial contracts.

Orders

Orders of the court

1. The applicant pay the costs of the first respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the first respondent on 13 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 2006.

2. The applicant pay the costs of the second respondent of and incidental to the proceeding, including the costs of and incidental to the Amended Notice of Motion filed by the second respondent on 5 December 2005, and the costs of and incidental to the Notice of Motion filed by the applicant on 16 January 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

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.