On-line Consulting P/L v Landmark Systems Corporation Summary

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JUDGMENT NO.

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

1	NG 857 of 1994

GENERAL DIVISION

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.

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

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

CaseChat Overview and Summary

The case of On-line Consulting P/L v Landmark Systems Corporation was heard in the Federal Court of Australia, New South Wales District Registry. The applicant, On-line Consulting P/L, sought relief restraining the respondents from representing that the first respondent had validly terminated an agreement and that the applicant had breached that agreement. The primary issue before the court was whether the applicant was entitled to costs of the application, which was dismissed by consent. The court also had to determine if the applicant's application was misleading or deceptive conduct under the Trade Practices Act.

Whitlam J considered whether there were circumstances in which such representations could be misleading or deceptive conduct. The court acknowledged that there might be situations where such conduct is prohibited by the Trade Practices Act, but in this case, the dispute was a commercial one between two parties asserting their rights. The court found that the matter was best resolved in the marketplace, and that the issue of entitlement would be decided by the courts of Virginia, as provided for in the agreement. Whitlam J noted that proceedings were already underway in Virginia and that the matter would be resolved shortly.

The court dismissed the application and ordered that the applicant pay the respondents' costs of the application. The court found that the application was doomed to failure, and that it was not unusual for the applicant to be unaware of the respondents' representations until after the application was made. Whitlam J certified that the reasons for judgment were a true copy of the preceding pages.

On-line Consulting P/L v Landmark Systems Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established