Vivanet Pty Ltd v Power - [2001] NTSC 66

Vivanet Pty Ltd v Power [2001] NTSC 66
PARTIES:VIVANET PTY LTD
v

TREVOR POWER

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 36 of 2001 (20102075)
DELIVERED:  8 August 2001
HEARING DATES:  26 February 2001
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Plaintiff:J Kelly
Defendant:BL Jones
Solicitors:
Plaintiff::Hunt & Hunt
Defendant:Brian L Johns
Judgment category classification:    C
Judgment ID Number:  Mil01248
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No. 36 of 2001 (20102075)
Vivanet Pty Ltd v Power [2001] NTSC 66

BETWEEN:

VIVANET PTY LTD

Plaintiff

AND:

TREVOR POWER

Defendant

CORAM: MILDREN J
REASONS FOR RULING
(Delivered 8 August 2001)
MILDREN J:

This is an application for an order for costs relating to interlocutory proceedings. On 8 February 2001 upon the urgent application of the plaintiff, I made an ex parte order against the defendant requiring him to deliver up certain property to the plaintiff and permitting the plaintiff's agents to enter the defendant's premises to search for and remove the property if necessary.
On 9 February 2001, I made a further order on the ex parte application of the plaintiff pursuant to Order 75.08 of the Supreme Court Rules for a warrant to be issued for the arrest and detention of the defendant until he was brought before this Court to answer a charge of contempt of court, unless he gave certain security to answer the charge. On 10 February 2001, the defendant by his solicitor filed an appearance to the originating motion and following a further hearing that day, I discharged the order for the arrest and detention of the defendant. I was informed by counsel that the defendant had delivered up possession of the property to the plaintiff and that the plaintiff did not wish to pursue the summons for contempt of court. I reserved the costs of the application on the summonses for contempt and for the arrest and detention of the defendant until 13 February.
On 13 February, the matter was adjourned until 20 February and on that date adjourned again to 26 February.
On 26 February, I made an order releasing the plaintiff from certain undertakings given to the Court at the time of the original order of 8 February and heard the plaintiff's applications for costs. The plaintiff also sought an order that the costs of the applications be taxed on an indemnity basis, and for those costs to be taxed and paid immediately. The defendant did not resist the making of the costs orders sought but did resist the application for indemnity costs and the orders for immediate taxation and payment.
According to the affidavit of Mr Brooks, the plaintiff's Project Manager, the property in question comprised two Network Access Servers and an Uninterrupted Power Supply Unit. The plaintiff is an internet infrastructure and access provider. The defendant was, at the material times, an internet service provider. The property was…

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.

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Details

AGLC: Vivanet Pty Ltd v Power [2001] NTSC 66
Case: [2001] NTSC 66
Decision Date: 8 August 2001

CaseChat Overview and Summary

Vivanet Pty Ltd v Power [2001] NTSC 66 is a decision of the Supreme Court of the Northern Territory, presided over by Mildren J. The case concerns an application for an order for costs relating to interlocutory proceedings between Vivanet Pty Ltd, the plaintiff, and Trevor Power, the defendant. The plaintiff sought an order for costs arising from proceedings that sought to recover certain property from the defendant, as well as an order for contempt against the defendant for failing to comply with a previous order. The defendant did not oppose the plaintiff's application for costs but did oppose the plaintiff's application for indemnity costs and for immediate taxation and payment of costs. The legal issues before the court were whether the defendant's actions warranted an order for indemnity costs, and whether the plaintiff was entitled to an order that the costs be taxed immediately. The court found that the defendant's actions did warrant an order for indemnity costs, and that the plaintiff was entitled to an order that the costs be taxed forthwith. The court made orders that the defendant pay the plaintiff's costs of and incidental to the summons on an indemnity basis, that the plaintiff may tax its costs forthwith, and that the plaintiff is certified fit for counsel.

Orders