Polyaire Pty Ltd v Lanthois

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FEDERAL COURT OF AUSTRALIA

Polyaire Pty Ltd v Lanthois [2011] FCA 1486

Citation: Polyaire Pty Ltd v Lanthois [2011] FCA 1486
Parties: POLYAIRE PTY LTD v PETER JAMES LANTHOIS and STEPHEN DUNCAN
File numbers: SAD 183 of 2010
SAD 184 of 2010
Judge: BESANKO J
Date of judgment: 22 December 2011
Catchwords:

PRACTICE AND PROCEDURE — Applications for particulars — where plaintiff company had brought successful action in the Supreme Court of South Australia against the companies of which the defendants were the liquidators for infringement of registered designs relating to an air-conditioning part — where plaintiff had obtained costs orders in its favour — where plaintiffs elected remedy of an account of profits — where plaintiff had lodged formal proofs of debt or claim with the defendants in relation to its claim for costs and an account of profits — where proofs of debt or claim substantially rejected — where plaintiff appealed the defendants’ decisions pursuant to s 1321(1)(d) of the Corporations Act 2001 (Cth) — where defendants sought particulars of claim — whether the Federal Court Rules 2011 applied to the applications, which were filed before those rules came into force but heard and determined afterwards — whether plaintiff had failed adequately to particularise the methodology it would ask Court to adopt in determining its claim for costs — whether particulars provided by plaintiff in relation to the account of profits claims were pleadings of evidence and not relevant matters of fact

Held: The applications for further particulars in relation to the costs claims were refused; certain particulars provided in relation to the account of profits claims were struck out.

Date of hearing: 27 October 2011
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 31
Counsel for the Plaintiff: Mr B Jenner
Solicitor for the Plaintiff: Lynch Meyer
Counsel for the Defendants: Mr M Hoffman QC
Solicitor for the Defendants: Kelly & Co Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 183 of 2010

BETWEEN:

POLYAIRE PTY LTD
Plaintiff

AND:

PETER JAMES LANTHOIS
First Defendant

STEPHEN DUNCAN
Second Defendant

JUDGE:

BESANKO J

DATE OF ORDER:

22 DECEMBER 2011

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The Federal Court Rules as in force immediately before 1 August 2011 apply to the hearing and determination of the defendants’ application for particulars.

2.The parties have leave to make submissions as to the appropriate orders in light of these reasons.      

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 184 of 2010

BETWEEN:

POLYAIRE PTY LTD
Plaintiff

AND:

PETER JAMES LANTHOIS
First Defendant

STEPHEN DUNCAN
Second Defendant

JUDGE:

BESANKO J

DATE OF ORDER:

22 DECEMBER 2011

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The Federal Court Rules as in force immediately before 1 August 2011 apply to the hearing and determination of the defendants’ application for particulars.

2.The parties have leave to make…

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Details
Case
[2011] FCA 1486
Decision Date

CaseChat Overview and Summary

The case of Polyaire Pty Ltd v Lanthois involved a dispute between Polyaire, a plaintiff, and the liquidators of two companies, Lanthois and others, the defendants. The dispute originated from a successful action brought by Polyaire against the defendants' companies in the Supreme Court of South Australia, which found infringement of registered designs relating to an air-conditioning part. Polyaire had obtained costs orders in its favour and subsequently elected to pursue an account of profits. After submitting proofs of debt or claim for its costs and account of profits, these were substantially rejected by the defendants. Polyaire appealed the rejections under section 1321(1)(d) of the Corporations Act 2001 (Cth). The defendants then sought further particulars of the claims, leading to the current litigation.

The central legal issues before the court involved whether the Federal Court Rules 2011 applied to the defendants' applications for particulars, which were filed before the rules came into force but heard and determined afterwards. Additionally, the court had to determine whether Polyaire had adequately particularised its claims, particularly regarding the methodology for determining costs and the relevance of certain evidence in its account of profits claims. The court examined the defendants' requests for particulars of the plaintiffs' claims for costs and an account of profits, assessing whether the plaintiffs had sufficiently detailed their methodologies and evidence.

The court ruled that the Federal Court Rules as in force immediately before 1 August 2011 applied to the hearing and determination of the defendants' applications for particulars. The court found that the applications for further particulars in relation to the costs claims were refused, as the plaintiffs had indicated how they intended to present their case, which might necessitate further particularisation. Regarding the account of profits claims, certain particulars provided were struck out as they were deemed to be pleadings of evidence rather than relevant matters of fact. The court also allowed the parties to make further submissions regarding appropriate orders in light of these reasons.

The final orders were that the Federal Court Rules as in force immediately before 1 August 2011 would apply to the hearing and determination of the defendants’ application for particulars, and the parties were granted leave to make submissions on the appropriate orders in light of the court's reasons.

Orders

Orders of the court

1. The Federal Court Rules as in force immediately before 1 August 2011 apply to the hearing and determination of the defendants’ application for particulars.

2. The parties have leave to make submissions as to the appropriate orders in light of these reasons.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties did not take me through the defendants’ request for particulars in relation to each of paragraphs 41, 42, 43, 44, 45, 46, 48, 49, 50 and 51 and make submissions as to the particulars which should be provided assuming the existing particulars are struck out. In another case I would have thought it fairly arguable that no further particulars would be required of at least some of the allegations. For example, the cost of the plastic per kilogram would not seem on the face of it to require further particularisation. However, in this case the plaintiff has indicated quite clearly (by reference to evidence) how it proposes to put its case and that may mean that it would wish to give further particulars or recognises an obligation to do so. In the circumstances I will give the plaintiff the opportunity to provide further particulars if it considers it appropriate and I will give the defendants the opportunity to press their application with respect to particular paragraphs.CONCLUSIONS In relation to the plaintiff’s claim for costs in each proceeding, the defendants’ application for particulars is refused. In relation to the plaintiff’s claim for an account of profits in each proceeding, the particulars referring to Mr Colebatch’s affidavits will be struck out and the parties will have leave to make submissions as to any further orders.

Ratio Decidendi

Legal Principle Established

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