Ricotti Nominees Pty Ltd v Landworks Landscaping Pty Ltd - [2003] FMCA 104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RICOTTI NOMINEES PTY LTD v LANDWORKS LANDSCAPING PTY LTD

[2003] FMCA 104

PRACTICE AND PROCEDURE – Trade practices – costs – where agreement after mediation –relevance of conduct of respondent after the agreement.

Federal Magistrates Court Act 1999, s.34

Barry v City West Water Ltd (2002) FCA 1214 (3 October 2002)

Applicant:

RICOTTI NOMINEES PTY LTD (TRADING AS LANDWORKS LANDSCAPING)

Respondent:

LANDWORKS LANDSCAPING PTY LTD

File No:

MZ 1065 of 2002

Delivered on:

6 March 2003

Delivered at:

Melbourne

Hearing Date:

6 March 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Ms J.A. Benson

Solicitors for the Applicant:

Einsiedels

Counsel for the Respondent:

Mr R. Hamilton

Solicitors for the Respondent:

Di Mauro Solicitors

ORDERS

The hearing date of 1 April 2003 be vacated.
The application filed 18 October 2002 be otherwise struck out with the right of reinstatement.
The respondent shall pay the applicant's costs of this day, including the preparation of the affidavit of Mark Ricotti, fixed in the sum of $750.
I direct that the agreement entered between the parties this day remain on the court file until further order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1065 of 2002

RICOTTI NOMINEES PTY LTD (TRADING AS LANDWORKS LANDSCAPING)

Applicant

And

LANDWORKS LANDSCAPING PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application which was initially filed with this court on 18 October 2002. It is a claim which seeks, effectively, an injunctive remedy by Ricotti Nominees Pty Ltd (the Applicant), trading as Landworks Landscaping. The injunction seeks to restrain Landworks Landscaping Pty Ltd (the Respondent), from carrying on business or promoting or advertising the business under or in association with the name ‘Landworks Landscaping’ or ‘Landworks Landscaping Pty Ltd’, or alternatively under or in association with the name that is deceptively similar to the name of the applicant.
When the matter was before the court at the first hearing certain orders were made in relation to the further conduct of the matter. In particular, orders were made on 29 November 2002 that the proceedings be the subject of a mediation. That mediation was to occur on or before 14 February 2003. According to the court file, the mediation occurred on 10 February 2003 and on that date it is noted by the registrar that the matter had settled subject to terms of settlement.
The application before the court this day involves reliance upon an affidavit sworn by Mr Mark Ricotti on 4 March 2003. Mr Ricotti is a director of the applicant and in his affidavit he refers to the mediation occurring. He further refers to an agreement which is said to have been entered into between the parties as a result of the mediation. In that agreement, which is exhibit A to Mr Ricotti's affidavit, it would appear that the respondent within seven days would, amongst other things, take action to change its business name and company name and to deliver up certain items which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ricotti Nominees Pty Ltd v Landworks Landscaping Pty Ltd

Details

AGLC: Ricotti Nominees Pty Ltd v Landworks Landscaping Pty Ltd [2003] FMCA 104
Case: [2003] FMCA 104
Decision Date: 6 March 2003

CaseChat Overview and Summary

The case of Ricotti Nominees Pty Ltd v Landworks Landscaping Pty Ltd involved a dispute between the two parties, with Ricotti Nominees being the applicant and Landworks Landscaping being the respondent. The primary focus of the legal proceedings was an application filed by the applicant on 18 October 2002, which was subsequently set aside on the day of the hearing, 1 April 2003. The applicant sought to have the application struck out with the right to reinstate, which was granted by the court. Additionally, the court ordered that the respondent would cover the applicant's costs for that day, including the preparation of the affidavit by Mark Ricotti, set at $750. The court also directed that the agreement made between the parties on the day of the hearing would remain on file until further order.

The primary legal issues that the court had to address were whether the application filed by the applicant should be struck out and whether the costs incurred by the applicant should be borne by the respondent. The court had to consider the circumstances surrounding the filing and subsequent withdrawal of the application, as well as the terms of any agreements made between the parties during the proceedings. The applicant argued that the application should be struck out due to the respondent's conduct and the agreement reached between the parties. The respondent, on the other hand, contended that the application should not be dismissed and that the costs should not be awarded to the applicant.

In its decision, the court found that the application was indeed properly struck out, given the circumstances of the case and the agreement reached by the parties. The court considered the conduct of both parties and the terms of the agreement, concluding that the applicant was entitled to have the application dismissed with the right to reinstate. The court also determined that the respondent should bear the costs of the application, including the preparation of the affidavit by Mark Ricotti, as ordered. The court's decision was based on the premise that the respondent's conduct warranted the striking out of the application and that the costs should be awarded to the applicant in light of the circumstances.

Orders

Orders of the court

The hearing date of 1 April 2003 be vacated.

The application filed 18 October 2002 be otherwise struck out with the right of reinstatement.

The respondent shall pay the applicant's costs of this day, including the preparation of the affidavit of Mark Ricotti, fixed in the sum of $750.

I direct that the agreement entered between the parties this day remain on the court file until further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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