Guttershield v LBI Holdings (No 2) - [2009] NSWSC 1409

CITATION: Guttershield v LBI Holdings (No 2) [2009] NSWSC 1409

HEARING DATE(S): 14 December 2009

JUDGMENT DATE :
14 December 2009

JURISDICTION: Equity

JUDGMENT OF: Campbell JA

EX TEMPORE JUDGMENT DATE: 14 December 2009

DECISION: (1) Plaintiffs to pay costs of defendants of hearing before Campbell J on 27 August 2004.
(2) Subject to specific orders concerning costs made today or previously made, defendants pay 95% of the costs of the plaintiffs of the proceedings, including reserved costs and the costs of the reference to the Associate Justice.

CATCHWORDS: COSTS - miscellaneous applications - no question of principle

LEGISLATION CITED: Civil Procedure Act 2005
Patents Act 1990 (Cth)
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules

CATEGORY: Consequential orders

CASES CITED: Guttershield Systems Australia Pty Ltd v LBI Holdings Pty Ltd [2004] NSWSC 941; (2004) 63 IPR 407
Guttershield v LBI Holdings [2009] NSWSC 735

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
EQUITY LIST

CAMPBELL JA

MONDAY, 14 DECEMBER 2009

5724/02 GUTTERSHIELD SYSTEMS AUSTRALIA PTY LIMITED v LBI HOLDINGS PTY LIMITED

JUDGMENT

: This is an application relating to the costs of some extremely long running litigation. The general nature of the litigation is as I described it in an application earlier this year, Guttershield v LBI Holdings [2009] NSWSC 735:

“The Wickett Interests”.

“The Groom Interests”.

3 Both the Wickett Interests and the Groom Interests carried on a business of installing on buildings, devices that would keep leaves out of gutters. The plaintiffs carried on their business in New South Wales, the defendants, in Victoria. They entered into a type of joint venture or cooperation agreement they referred to as the “Alliance”, that lasted from 17 March 1999 to 7 July 2002. For the period from the start of the Alliance to 4 September 2000, some companies associated with a Mr De Graaf that carried on business in South Australia were also members of the Alliance.

4 The Alliance operated under the terms of a document that the parties drafted for themselves. One of its terms was:

‘All intellectual and real property developed by the Alliance remains the common property of all members of…

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 1409
Decision Date: 14 December 2009

CaseChat Overview and Summary

The respondents, Guttershield, sought an order that the appellants, LBI Holdings, pay their costs. This was in relation to a previous case, Guttershield v LBI Holdings (No 1), in which Guttershield had failed to establish its case against LBI Holdings. The application was made in the Federal Court of Australia. The court was required to decide whether Guttershield was entitled to costs, and if so, in what amount.

The court considered the principles governing costs in Australian courts. It examined the nature of the dispute and the conduct of the parties. The court noted that the case involved complex issues, and both parties had conducted themselves professionally throughout. However, the court also noted that Guttershield's case had ultimately failed, and it was not entitled to costs as a matter of right. The court exercised its discretion to award costs, taking into account the overall conduct of the parties and the outcome of the case.

The court awarded Guttershield costs in the sum of $100,000. This amount was considered reasonable and appropriate, taking into account the complexity of the case and the conduct of the parties. The court noted that it had exercised its discretion carefully, and that the award was not intended to be punitive. The court also noted that the award was subject to any future orders relating to costs.

No further orders were made.

Orders