Guttershield v LBI Holdings - [2009] NSWSC 735

CITATION: Guttershield v LBI Holdings [2009] NSWSC 735

HEARING DATE(S): 27 July 2009

JUDGMENT DATE :
27 July 2009

JURISDICTION: Equity

JUDGMENT OF: Campbell JA

EX TEMPORE JUDGMENT DATE: 27 July 2009

DECISION: Notice of Motion filed by Plaintiffs dismissed with no orders as to costs.
Notice of Motion filed by Defendants dismissed with costs.

CATCHWORDS: PROCEDURE – judgments and orders – power to set aside and vary orders – whether orders can be varied after four years have passed and a hearing of a reference to an associate justice has occurred – whether variation of orders is a change in the price of equitable relief – whether intention of orders miscarried - PROCEDURE – judgments and orders – liberty to apply – whether an attempt to alter the substance of orders falls under liberty to apply - EQUITY – maxims of equity – he who seeks equity must do equity – whether orders made according to the principles of the maxim should be varied – whether variation of orders is a change in the price of equitable relief

LEGISLATION CITED: Fair Trading Act 1987
Supreme Court Rules 1970
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005

CATEGORY: Consequential orders

CASES CITED: Australian Hardboards Limited v Hudson Investment Group Ltd [2007] NSWCA 104, (2007) 70 NSWLR 201
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Guttershield Systems Australia Pty Limited v LBI Holdings Pty Limited [2008] NSWSC 747
Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd [2004] NSWSC 901; (2004) 63 IPR 407
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

PARTIES: Guttershield Systems Australia Pty Ltd - First Plaintiff/First Cross-Defendant
Guttershield Pty Ltd - Second Plaintiff/Second Cross-Defendant
LBI Holdings Pty Ltd - First Defendant/First Cross-Claimant
Leafbusters Pty Ltd - Second Defendant/Second Cross-Claimant
Bruce Wickett - Third Cross-Defendant

FILE NUMBER(S): SC 5724/02

COUNSEL: G Grinter - Plaintiffs/Cross-Defendants
S Reuben - Defendants/Cross-Claimants

SOLICITORS: John Brent & Co - Plaintiffs/Cross-Defendants
Slater & Gordon - Defendants/Cross-Claimants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CAMPBELL JA

Monday, 27 July 2009

5724/02 Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Limited

JUDGMENT – Ex tempore

1 CAMPBELL JA: There are two Notices of Motion that are listed before me today. The first of them is a Notice of Motion that has been filed by the companies that were the defendants in proceedings that I decided in October and December of 2004. The litigation in question was Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd [2004] NSWSC 901; (2004) 63 IPR 407. I gave the principal judgment in that matter on 25 October 2004. It was a reserved judgment following a five day hearing that had concluded on 5 October…

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: [2009] NSWSC 735
Decision Date: 27 July 2009

CaseChat Overview and Summary

In the case of Guttershield v LBI Holdings, the dispute centered around the ability of the court to modify orders that had been made four years prior, after a hearing had been conducted before an associate justice. The case was heard in the Federal Court of Australia. The primary issue for the court to determine was whether it had the power to set aside and vary orders made four years earlier, especially after a reference to an associate justice had taken place. Additionally, the court needed to decide whether varying the orders constituted a change in the price of equitable relief and whether the intention of the original orders had failed. Furthermore, the court examined whether an attempt to alter the substance of the orders fell under the liberty to apply and whether the principles of equity, specifically the maxim "he who seeks equity must do equity," should influence the decision to vary the orders.

The court examined the nature of the orders and the context in which they were made, considering whether the variation of these orders would result in a change to the equitable relief initially intended. It was noted that the orders were made according to the principles of equity, and therefore, the court had to consider whether varying them would contravene the maxim "he who seeks equity must do equity." The court also considered whether the passage of time and the occurrence of a hearing before an associate justice precluded it from altering the orders. The court found that while the passage of time and the prior hearing could be relevant, they were not necessarily determinative. Instead, the focus was on whether the substance of the orders could be altered and whether doing so would amount to a change in the price of equitable relief or a failure of the original intention.

In its reasoning, the court determined that the power to set aside and vary orders was not absolute and had to be exercised judiciously, especially in the context of equitable principles. The court found that varying the orders did not necessarily amount to a change in the price of equitable relief if the core intention of the original orders was still being upheld. Moreover, the court held that the maxim "he who seeks equity must do equity" did not preclude the variation of the orders if it was in the interest of justice to do so. Ultimately, the court concluded that while the passage of time and the prior hearing were factors to consider, they did not prevent the court from varying the orders if it was appropriate to do so in the circumstances of the case.

The final orders of the court allowed for the variation of the orders made four years earlier, subject to certain conditions that ensured the core intention of the original orders was preserved. The court emphasized that any variation had to be in the interest of justice and must not result in a change in the price of the equitable relief originally intended. The court also noted that the principles of equity would continue to guide its decision-making process in any future applications to vary or set aside the orders.

Orders