Re Exabyte Corporation

This matter concerned an application by Exabyte Corporation for an order that it be permitted to proceed with its claim against the respondent, Mr. Ian Forno, for alleged breaches of contract and misleading and deceptive conduct. The applicant sought to enforce an alleged oral agreement for the sale of certain computer equipment. The respondent sought to have the claim dismissed on the grounds that it was frivolous and vexatious, and an abuse of process, arguing that no such oral agreement had ever been concluded. The application was heard in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the applicant had established a *prima facie* case sufficient to warrant a full hearing, or whether the respondent's assertion that no agreement was reached was so strong as to justify striking out the claim as an abuse of process. Specifically, the Court had to consider the evidence presented by both parties regarding the alleged oral agreement and determine if there was a sufficient evidentiary basis to proceed to trial.

Justice Forno found that the applicant had not provided sufficient evidence to establish a *prima facie* case that an oral agreement had been concluded. The Court noted that the applicant's evidence was vague and lacked corroboration, while the respondent's evidence denying the existence of an agreement was clear and consistent. Applying the principles governing applications to strike out proceedings, the Court concluded that the applicant had failed to demonstrate a real question to be tried.

Consequently, the Court ordered that the applicant's claim be dismissed.