Tradebanc International Pty Ltd v Balsdon, Robert Ian
[1996] FCA 505
•25 JUNE 1996
CATCHWORDS
CONTRACT - entitlement to restitution - agreement to write a computer programme - computer programme deficient and inadequate - election to treat contract as discharged for breach and make a claim for money paid on basis of total failure of consideration.
PRACTICE and PROCEDURE - ex parte application - whether every reasonable attempt to contact the respondent was made - whether respondent had adequate notice of the hearing - O 62
r 36A not appropriate in present circumstances of copyright infringement and therefore not applicable - interest payable under s 51A of the Federal Court of Australia Act 1976.
COPYRIGHT - infringement of copyright in company's software package & new programme.
Federal Court of Australia Act 1976, s 51A
Federal Court Rules O 62 r 36A
Led Builders Pty Ltd v Hope (1994) 53 FCR 10
TRADEBANC INTERNATIONAL PTY LIMITED v
ROBERT IAN BALSDON & TRADE WINDS EXPRESS CARD COMPANY
PTY LIMITED
No NG 508 of 1994
Tamberlin J
Sydney
25 June 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 508 of 1994
GENERAL DIVISION )
BETWEEN: TRADEBANC INTERNATIONAL
PTY LIMITED
(ACN 055 037 459)
Applicant
AND: ROBERT IAN BALSDON
First Respondent
TRADE WINDS EXPRESS CARD
COMPANY PTY LIMITED
(ACN 064 339 948)
Second Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 25 JUNE 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The first Respondent pay the Applicant the sum of $25,000 together with interest under s51A of the Federal Court of Australia Act 1976.
Order 62 rule 36A of the Federal Court Rules shall not apply.
The first Respondent pay the costs of the Applicant.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 508 of 1994
GENERAL DIVISION )
BETWEEN: TRADEBANC INTERNATIONAL
PTY LIMITED
(ACN 055 037 459)
Applicant
AND: ROBERT IAN BALSDON
First Respondent
TRADE WINDS EXPRESS CARD
COMPANY PTY LIMITED
(ACN 064 339 948)
Second Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 25 JUNE 1996
REASONS FOR JUDGMENT
In this matter the respondents did not appear on the hearing.
The application was filed on 9 August 1994. There was a Notice of Appearance on 30 August 1994. An Amended Application was filed on 4 October 1994, together with an Amended Statement of Claim. On 10 November 1994, a Defence was filed and on 8 February 1995 a Notices of Ceasing to Act were filed by Messrs Blessington Judd on behalf of the first and second respondents.
On 11 January 1996, the then solicitors for the respondents were notified of the hearing on 20 and 21 June 1996.
I am satisfied from an examination of the Court file and from the affidavit of Mr Crawford sworn on 11 June 1996, that every reasonable attempt has been made to contact the first respondent and serve the Further Amended Application and Statement of Claim, but that these attempts have proved fruitless. I am satisfied that it has not been practicable to contact the respondents.
On 14 June 1996 I granted leave to the applicants to further amend the Amended Application and Statement of Claim. I noted that it was not intended to serve the amended documents on the respondents. I am satisfied that the respondents have had adequate notice of the hearing but have simply ignored the proceedings and I consider it is appropriate to proceed ex parte.
I have considered the affidavit evidence comprising an affidavit by Gena Rorke dated 5 August 1994 and of William Rorke also of 5 August 1994, together with an affidavit of software expert, Christopher Steains, of 9 May 1995 and I have had the benefit of submissions, both written and oral, from counsel for the applicant.
I am satisfied that the first respondent made an oral agreement with the applicant in or about January 1993, whereby
the first respondent agreed to write a computer programme for the applicant.
The first respondent prepared a form of programme but as the evidence discloses it was not in accordance with the specified requirements and was so totally inadequate as to be of no substantial use to the applicant.
I am also satisfied that the applicant paid to the first respondent, the sum of $25,000 in respect of the software programme. This sum was paid in or about February 1994. The deficient copy of the computer programme was delivered within a short time thereafter.
The software was examined by BizCare Australia Pty Limited ("BizCare") and found to be so inadequate that it was necessary to completely replace it with another system. The evidence of BizCare is set out in the affidavit of Christopher Steains of 9 May 1995. He concludes that the software supplied had fundamental deficiencies, such that the most effective way to rectify the problem was to write a new programme to meet the requirements of the applicant. This was done.
The applicant has elected to treat the contract as discharged for breach and to claim the money paid, namely the sum of $25,000, on the basis of there having been a total failure of consideration.
On the evidence, I am satisfied that the computer programme in question, was for all practical purposes substantially useless to the applicant and that a case has been made out on restitutionary principles for payment of the sum of $25,000 paid to the first respondent.
In relation to costs I should add that the proceedings, as originally framed, involved questions as to infringement of copyright in the programme, and as to who owned the rights pertaining to copyright in that programme. Cf Led Builders Pty Limited v Hope (1994) 53 FCR 10. I therefore direct that order 62 rule 36A (which relates to costs in applications which result in the award of less than $100,000) shall not apply.
Accordingly, the appropriate orders are that the first respondent pay to the applicant the sum of $25,000, interest pursuant to s51A of the Federal Court of Australia Act 1976, together with costs.
I certify that this and
the preceding three (3)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 25 June 1996
Counsel for Applicant: Mr M J Steele
Solicitor for Applicant: Watson & Watson
Date of Hearing: 20 June 1996
Date Judgment Delivered: 25 June 1996
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