Menkens v Wintour - [2010] QSC 360

SUPREME COURT OF QUEENSLAND

CITATION:

Menkens & Anor v Wintour & Anor [2010] QSC 360

PARTIES:

LEO IGNATIOUS GEORGE MENKENS
(First Plaintiff)

and

REID MATTHEW MENKENS

(Second Plaintiff)

v

ROBERT DESMOND PETER WINTOUR

(First Defendant)

and

NORTH COAST WOOD PANELS PTY LTD

ACN 071 968 771 T/AS STANTIUM

(Second Defendant)

FILE NO:

BS 1975/06

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions on 8 and 14 September 2010

JUDGE:

McMurdo J

ORDER:

1. The plaintiffs must now elect between the remedies of equitable compensation and an account of profits.

2. The plaintiffs are directed to deliver to the associate to PD McMurdo J and to the defendants within seven days of this ruling a document by which that election is made.

CATCHWORDS:

INTELLECTUAL PROPERTY – CONFIDENTIAL INFORMATION – REMEDIES – EQUITABLE COMPENSATION OR ACCOUNT OF PROFITS – where the trial was conducted by each side on the basis that all matters in issue would be determined within the one judgment – where extensive evidence was led by each side on quantum – whether the plaintiffs have elected, or are now obliged to elect between the remedies of equitable compensation and an account of profits.

Artistic Builders Pty Ltd v Elliot & Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16
Dr Martens Australia Pty Ltd & Ors v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230
GM & AM Pearce & Co Pty Ltd v Australian Tallow Producers [2005] VSCA 113
Island Records Ltd v Tring International Plc & Anor [1995] 3 All ER 444
LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 70 FCR 436
Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] 1 AC 514

Warman International Limited & Anor v Dwyer & Ors (1994) 182 CLR 544

COUNSEL:

S Couper QC with M Hodge for the plaintiffs

C Wilson for the defendants

SOLICITORS:

Hawthorn Cuppaidge & Badgery for the plaintiffs
Herbert Geer for the defendants

This is a ruling as to whether the plaintiffs have elected, or are now obliged to elect between the remedies of equitable compensation and an account of profits. The issue is the subject of written submissions provided by each side since the conclusion of the hearing.

There was no order that liability issues be tried in advance of other questions. Each side apparently conducted its case on the basis that all matters in issue would be determined within the one judgment. Extensive evidence was led by each side on quantum and the first defendant was cross-examined on subjects which were relevant to the alternative remedy of an account of profits. Ultimately, the plaintiffs addressed upon the proper quantification of their claim for equitable compensation. But at the same time they made it clear that they wish to keep open the alternative remedy of an account of profits.

In their subsequent written submissions, the plaintiffs contend as follows:

The Court should not…

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.

Continue reading Menkens v Wintour

Details

AGLC: Menkens v Wintour [2010] QSC 360
Case: [2010] QSC 360
Decision Date: 24 September 2010

CaseChat Overview and Summary

The case of Menkens v Wintour involved a dispute over intellectual property and confidential information. The plaintiffs, Menkens, alleged that the defendants, Wintour, had breached an agreement not to use certain confidential information. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the plaintiffs had elected, or were now obliged to elect, between the remedies of equitable compensation and an account of profits. The case proceeded on the basis that all matters in issue would be determined within one judgment. Both parties presented extensive evidence concerning the quantum of any potential remedies.

The court examined the legal principles governing the remedies available in cases of intellectual property and breach of confidence. It considered whether the plaintiffs had made a clear choice between the two remedies or if the court should compel an election. The court noted that the plaintiffs had not made a definitive choice between the remedies and that the case had proceeded on the assumption that all issues would be resolved in a single judgment. The court concluded that the plaintiffs must now elect between the remedies of equitable compensation and an account of profits.

The court ordered that the plaintiffs must now elect between the remedies and provide a written statement of their election to the court and the defendants within seven days. The case was paused pending the plaintiffs' election, which would determine the appropriate course for calculating and awarding any damages or profits.

Orders

Orders of the court

1. The plaintiffs must now elect between the remedies of equitable compensation and an account of profits.

2. The plaintiffs are directed to deliver to the associate to PD McMurdo J and to the defendants within seven days of this ruling a document by which that election is made.

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.

CITATION:	Menkens & Anor v Wintour & Anor [2010] QSC 360
PARTIES:	LEO IGNATIOUS GEORGE MENKENS (First Plaintiff) and REID MATTHEW MENKENS (Second Plaintiff) v ROBERT DESMOND PETER WINTOUR (First Defendant) and NORTH COAST WOOD PANELS PTY LTD ACN 071 968 771 T/AS STANTIUM (Second Defendant)
FILE NO:	BS 1975/06
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions on 8 and 14 September 2010
JUDGE:	McMurdo J
ORDER:	1. The plaintiffs must now elect between the remedies of equitable compensation and an account of profits. 2. The plaintiffs are directed to deliver to the associate to PD McMurdo J and to the defendants within seven days of this ruling a document by which that election is made.
CATCHWORDS:	INTELLECTUAL PROPERTY – CONFIDENTIAL INFORMATION – REMEDIES – EQUITABLE COMPENSATION OR ACCOUNT OF PROFITS – where the trial was conducted by each side on the basis that all matters in issue would be determined within the one judgment – where extensive evidence was led by each side on quantum – whether the plaintiffs have elected, or are now obliged to elect between the remedies of equitable compensation and an account of profits. Artistic Builders Pty Ltd v Elliot & Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16 Dr Martens Australia Pty Ltd & Ors v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230 GM & AM Pearce & Co Pty Ltd v Australian Tallow Producers [2005] VSCA 113 Island Records Ltd v Tring International Plc & Anor [1995] 3 All ER 444 LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 70 FCR 436 Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] 1 AC 514 Warman International Limited & Anor v Dwyer & Ors (1994) 182 CLR 544
COUNSEL:	S Couper QC with M Hodge for the plaintiffs C Wilson for the defendants
SOLICITORS:	Hawthorn Cuppaidge & Badgery for the plaintiffs Herbert Geer for the defendants