Product Development Solutions Australia Pty Ltd v Parametric Technology Corporation

Court of Appeal

New South Wales

Case Title:

Product Development Solutions Australia Pty Ltd v Parametric Technology Corporation

Medium Neutral Citation:

[2012] NSWCA 211

Hearing Date(s):

10 July 2012

Decision Date:

17 July 2012

Jurisdiction:

Before:

McColl JA; Meagher JA

Decision:

(1) Leave to appeal refused.
(2) Applicant to pay the respondent's costs of the application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - summary judgment - cross-claim alleging misleading or deceptive and unconscionable conduct - defence by way of equitable set-off - whether arguable defence

Legislation Cited:

Fair Trading Act 1987
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules

Cases Cited:

Batistatos v Road and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Forsyth v Gibbs [2008] QCA 103; [2009] 1 Qd R 403
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
Hill Corcoran Constructions Pty Ltd v Navarro [1992] QCA 17
Hill v Ziymack [1908] HCA 13; 7 CLR 352
Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451

Texts Cited:

Category:

Interlocutory applications

Parties:

Product Development Solutions Australia Pty Ltd (Applicant)
Parametric Technology Corporation (Respondent)

Representation

- Counsel:

Counsel:
D C Price (Applicant)
A E Maroya (Respondent)

- Solicitors:

Solicitors:
Henry Davis York (Applicant)
Heckenberg & Koops (Respondent)

File number(s):

CA 2012/147915

Decision Under Appeal

- Court / Tribunal:

- Before:

Rolfe DCJ

- Date of Decision:

12 April 2012

- Citation:

- Court File Number(s)

2011/312149

Publication Restriction:

JUDGMENT

1. THE COURT: The respondent is a supplier of computer software products. It granted the applicant a non-exclusive right to resell those products in Australia. In September 2011 the respondent sued the applicant in the District Court for $260,671.30 for software products sold and delivered under invoices dated between 13 April and 15 October 2010. The applicant filed a defence to that claim and a cross-claim. By its defence it admitted that the software products had been supplied and that the invoices remained unpaid and claimed an equitable set-off in the amount of its cross-claim.

2. The cross-claim alleges misleading or deceptive and unconscionable conduct of the respondent concerning the pursuit by the applicant of an opportunity to resell the respondent's products to Cochlear Ltd and to the respondent's support of the applicant's business more generally. Allegations are made of contraventions of the former ss 51AC and 52 of the Trade Practices Act 1974 (Cth) and ss 42 and 43 of the Fair Trading Act 1987. The applicant alleges that whilst representing that it would assist the applicant to pursue that opportunity, the respondent in fact had no…