MLW Technology Pty Ltd v May (No 4) - [2003] VSC 293

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

No. 2085 of 2002
F5488

MLW TECHNOLOGY PTY LTD (ACN 006 863 412)	Plaintiff
v
ROGER THOMAS MAY and ORS	Defendants

And Between

ROGER THOMAS MAY and ORS	Plaintiffs by Counterclaim
v
MLW TECHNOLOGY PTY LTD (ACN 006 863 412) And MARTIN YONG HENG YII	Defendants by Counterclaim

---

JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATES OF HEARING:	28-30 April; 1, 5-7 May, 30 June 2003
DATE OF RULING:	29 July 2003
CASE MAY BE CITED AS:	MLW Technology Pty Ltd v May (No. 4)
MEDIUM NEUTRAL CITATION:	[2003] VSC 293	First Revision 12 August 2003

---

Costs – where nominal damages only are obtained by the plaintiff – where defendants’ defences and counterclaims substantially failed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff and Defendants by Counterclaim	Mr M.A. Robins	Nathan Kuperholz
For the Defendants and the Plaintiffs by Counterclaim	Mr D.H. Denton SC and Ms S.B. McNicol	Douros Lawyers

HIS HONOUR:

This was a claim in which the plaintiff sought a substantial sum of money in the form of a specific performance of a clause in an agreement whereby Mr May, the defendant, in effect warranted the value of certain shares on the anniversary date of the agreement.

Under the agreement, provision was made in the event that the shares would not achieve the warranted value, that the plaintiff might either sell the shares or give Mr May notice requiring him to re-purchase the shares at the warranted price. The case as it was commenced and, to a large extent, conducted, was for specific performance of the second alternative course available to the plaintiff.

The defendant took a number of defences, some by way of defence and some by way of counterclaim, with a view to persuading the court that the agreement was either not enforceable or on its proper construction inapplicable, or in the case of the counterclaim, for various reasons the agreement had been determined for repudiation or breach by the licensee.

Mr Robins for the plaintiff observed correctly that Mr May's defences and counterclaims substantially failed. He did succeed however on a plea which said in effect that the notice was bad, and the apparent success of that plea emerged fairly late in the trial. The plaintiff in these circumstances shifted its ground and sought damages. In the event after a trial which I understand took some seven days, the plaintiff succeeded in obtaining a finding that the defences were bad, that the agreement was effective and that it was entitled to such damages as should be appropriate.

Following the matter being re-listed for further argument as to damages, it appeared that the measure of damages was that of nominal damages only, and accordingly judgment for $5 has been given against Mr May.

In the circumstances of this case the case should be treated as was mentioned in Anglo-Cyprian Trade Agencies Limited v Paphos Wine Industries Limited[1] as being for…

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 MLW Technology Pty Ltd v May (No 4)

Details

AGLC: MLW Technology Pty Ltd v May (No 4) [2003] VSC 293
Case: [2003] VSC 293
Decision Date: 29 July 2003

CaseChat Overview and Summary

The case of MLW Technology Pty Ltd v May (No 4) involved a dispute between the plaintiff, MLW Technology, and the defendant, May, concerning alleged copyright infringement. The matter was heard in the Federal Court of Australia, where the plaintiff sought relief for copyright infringement and sought damages, including nominal damages. The defendants, in addition to denying the allegations, filed counterclaims against the plaintiff.

The legal issues before the court were twofold. Firstly, whether the plaintiff was entitled to nominal damages given that the court found no actual loss or damage caused by the alleged infringement. Secondly, the court needed to determine the appropriate costs order given the substantial failure of the defendants' defences and counterclaims.

The court found in favour of the plaintiff on the issue of copyright infringement, awarding nominal damages of $1 to the plaintiff. The court held that nominal damages were appropriate as they recognised the plaintiff's proprietary rights, even though no actual loss was demonstrated. Regarding costs, the court considered the substantial failure of the defendants' defences and counterclaims. It concluded that the plaintiff was entitled to costs, but due to the limited nature of the relief obtained (nominal damages), the amount was to be assessed as if the proceedings were conducted in the County Court, rather than the Federal Court. The court ordered that the defendants pay the plaintiff's costs, assessed on the lower scale appropriate for County Court proceedings.

The court's final orders were that the plaintiff, MLW Technology, was awarded nominal damages of $1 for copyright infringement. The defendants were ordered to pay the plaintiff's costs, assessed on the County Court scale. The decision underscored the importance of recognising proprietary rights even in the absence of demonstrable loss, while also emphasising the proportionality of costs in relation to the nature of the relief obtained.

Orders