Legent Corporation& anor v Fundi Software Services Pty Ltd

In Legent Corporation & Anor v Fundi Software Services Pty Ltd, the applicants sought pre-action discovery from the respondents to assist in determining whether to proceed with substantive litigation. The primary issue before the court was the appropriate costs order in light of the applicants' decision not to send a letter before action to the respondents. The applicants argued that they had made all reasonable inquiries and that a two-stage order for costs was appropriate, while the respondents contended for a one-stage order with costs assessed on a solicitor and client basis.

The court considered the nature of the relief sought and concluded that a letter before action would not have been effective in this context, given the contentious nature of the issues and the specific type of relief being sought. Lockhart J determined that the applicants had made reasonable inquiries and dismissed the application. The court held that if the applicants proceeded with substantive litigation within 28 days, the costs of the preliminary proceeding should be reserved and determined by the judge in the new proceeding. Otherwise, the applicants should pay the costs of each respondent on a party and party basis. The court also noted that the antipathy between the parties influenced its decision on costs, rejecting the notion that the proceeding was an abuse of court process.