On-line Consulting P/L v Landmark Systems Corporation

[1994] FCA 1005

/ o o s ~ 99

JUDGMENT NO. ..o.Hoeae...a nmaammw.ae

IN THE FEDERAL COURT OF AUSTRALIA

1

1

NEW SOUTH WALES DISTRICT REGISTRY

1 NG 857 of 1994

1

GENERAL DIVISION

1

ON-LINE CONSULTING PTY

LIMITED

Applicant

LANDMARK SYSTEMS

CORPORATION AND ANOR

Respondent

Coram:	Whitlam J
Place:	Sydney
Date:	8 December 1994

--CEIVED

EDERAL COURf OF

REASONS FOR JUDGMENT AUSTRALIA

(EX TEMPORE)

The partles are agreed that the applicatlon hereln be dismissed. The only

question to be resolved 1s the question of costs of the applicatlon.

It is a curious application inasmuch as what it sought was relief restraining the first and second respondents from representmg that the first respondent had validly terrmnated an agreement and that the apphcant had breached that agreement. Stated

in that way, it shows that the applicatlon really begs the question, which is whether there

was an entitlement to terminate the agreement.

2.

One may well enwsage circumstances m which the mahng of such representauons

could be mlslead~ng or deceptive conduct, whch ought to be enjolned under the Trade

Practices Act. Such a circumstance might exlst where there had been some adjudication of ent~tlement o terminate by a competent tr~bunal. However, the situation m the market place when there is a commercial dlspute between two organisations, each of whom asserts its rights - one to have terminated, and the other to resist the purported tennmation and to insist upon performance of the contract, is in the normal circumstances something that can be worked out in the market place.

Here it is common ground between the parties that the question of the entitlement wil be resolved in the courts of Vlrgba, whlch jurisdiction the agreement expressly prov~des shall furnish not simply the law to be applied, but also the forum to

decide the question. I am informed by the partles that proceedings are already on foot

HI Virgmia and that the matter will be shortly resolved.

MI Moore relies, in support of his request for costs, on the fact (which is accepted for purposes of the costs application by the respondents) that his client dld not know that the respondents had been mahng such representations until after this application was made. He draws attention to a paragraph m the affidavit m support of the application, which deposes to conversafions where the first respondent's officers had said they would be approaching customers.

None of that strlkes me as being very unusual. In all the circumstances it seems

to me that, the application was doomed to failure. Accord~ngly, I order, by consent, that

3.

the application be d~srnissed and, over the opposition of the applicant, that the apphcant

pay the respondents' costs of the application.

I cert~fy thaithls and the preceding two pages are a

true copy of the reasons for judgment hercm of the

Hon. Just~ce AP. Wlutlam

Date: S December 1994

G.A. Moore of counsel Instructed by G~bsons appeared for the appl~cant

Mr P N. Argy of Mnllesons Stephen Jaques appeared for the respondents

Date of heanng: S December 1994