Singtel Optus v Almad - [2013] NSWSC 1961

Supreme Court

New South Wales

Medium Neutral Citation: Singtel Optus v Almad [2013] NSWSC 1961
Hearing dates: 12/12/2013
Decision date: 12 December 2013
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Judgment for plaintiffs against third defendant. Declare that second defendant holds on trust for plaintiffs the amount ordered to be paid by it to them. Order plaintiffs to pay first defendant's costs. Order second to fifth defendants to pay some but not all of plaintiffs' costs. Order cross-defendant to pay cross-claimant's costs. Stay judgments until 17 February 2014.

Catchwords:
COSTS - where plaintiff abandoned several issues - where not shown that abandoned issues improperly raised
COSTS - expert report - where expert report not admitted into evidence
Cases Cited: Huntsman Chemical Company Australia Limited v International Pools Australia Limited (1995) 36 NSWLR 242
Ragata Developments Pty Limited v Westpac Banking Corporation (1993) 217 ALR 175
Texts Cited: Young, Croft and Smith, on Equity (Lawbook Co, 2009)
Category: Procedural and other rulings
Parties: Singtel Optus Pty Ltd (First Plaintiff)
Optus Networks Pty Ltd (Second Plaintiff)
Optus Administration Pty Ltd (Third Plaintiff)
Almad Pty Ltd (First Defendant)
Sumo Distribution and Storage Pty Ltd (Second Defendant)
Leon Mark Curtis (Third Defendant)
Craig Hasler (Fourth Defendant)
PJC333 Pty Limited (Fifth Defendant)
Representation: Counsel: J Stoljar SC / DJA Mackay (Plaintiffs)
BW Rayment QC / J T Johnson / IJ King (First, Third, Fourth and Fifth Defendants)
Second Defendant (Unrepresented)
Solicitors:
Minter Ellison (Plaintiffs)
MCW Lawyers (First, Third, Fourth and Fifth Defendants)
Second Defendant (Unrepresented)

File Number(s): 2011/139541

Judgment (ex tempore - revised 12 december 2013)

HIS HONOUR: I gave judgment in these proceedings on 30 September 2013, after a trial lasting some 15 hearing days. My reasons may be found at [2013] NSWSC 1427.

On 16 October 2013, the matter came back for the making of orders. The parties were agreed as to the judgments that should be given to reflect my conclusions and I made orders accordingly. The parties could not agree on costs and other matters, and accordingly I stood those other matters over for yet further consideration. I am today dealing substantially with the question of costs, but also with the way in which the plaintiff's success against the second to fifth defendants should be reflected in final orders.

The plaintiffs have propounded short minutes of order.

One of those quantifies the first plaintiff's entitlement against the fifth defendant in the sum of $144,139. The making of that order is not opposed (the fifth defendant is represented before me today).

The second order proposed is that the amount for which judgment was given for the plaintiffs against the second defendant is held by that defendant on constructive trust for the plaintiffs. The second defendant has not been represented at any material time, because it is in liquidation. Thus, the making of an order to that effect was not opposed. However, since the second defendant has not consented, it is necessary that I deal briefly with that order.

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.

Keep reading for free

Create a free CaseChat account to read Singtel Optus v Almad and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 1961
Decision Date: 12 December 2013

CaseChat Overview and Summary

In the matter of Singtel Optus v Almad, the Federal Court considered the issue of costs following the plaintiff's abandonment of several claims. The plaintiff, Singtel Optus, had initiated proceedings against the defendant, Almad, concerning various allegations of copyright infringement. The court was tasked with determining whether the abandonment of these claims warranted an award of costs to the defendant. The court noted that the abandonment did not necessarily render the initial claims improperly raised, as the plaintiff had the right to amend or withdraw claims during the litigation process.

The primary legal issue before the court was whether the defendant was entitled to costs due to the plaintiff's abandonment of several claims. The court examined whether the abandonment was reasonable and whether the claims were improperly raised. Additionally, the court addressed the issue of the expert report presented by the defendant, which was not admitted into evidence. The court considered whether the failure to admit the expert report into evidence influenced the decision on costs.

The court found that the abandonment of claims did not automatically entitle the defendant to costs. It held that the plaintiff had the right to abandon claims and that there was no evidence suggesting the claims were improperly raised. The court emphasised that the decision to abandon claims was a strategic one and did not, in itself, warrant an award of costs. Regarding the expert report, the court determined that its exclusion from evidence did not impact the overall decision on costs. The court concluded that the abandonment of claims did not justify awarding costs to the defendant.

The court ordered that the defendant's application for costs be dismissed. The court held that the plaintiff's decision to abandon certain claims did not result in an improper use of the court process, and therefore, costs were not warranted. The court's decision underscored the importance of evaluating the merits of each claim and the plaintiff's right to manage their litigation strategy without automatic penalties for withdrawing claims.

Orders