VTS It Pty Limited v Russell - [2015] ACTSC 230

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	VTS IT PTY LIMITED v RUSSELL
Citation:	[2015] ACTSC 230
Hearing Date(s):	11 December 2014
DecisionDate:	14 August 2015
Before:	Refshauge J
Decision:	Andrew Eyre Russell pay the costs of VTS IT Pty Ltd of the proceedings.
Category:	Principal Judgment
Catchwords:	CIVIL – Jurisdiction, practice and procedure – Application for costs – Interim orders made ex parte – Injunction – Consent orders – Costs follow the event – Undertaking as to damages
Legislation Cited:	Supreme Court Practice Direction No 3 of 1999
Cases Cited:	Amaca Pty Ltd (formerly known as James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(s) Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 Barnett v Crozier [1987] 1 WLR 272 Bateman and Idameneo(No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72 Bowen v Alsanto Nominees (Pty Ltd) [2011] WASCA 39 (S) Colburt v Beard [1992] 2 Qd R 67 Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 Cretazzo v Lombardi (1975) 13 SASR 4 Financial Integrity Group Pty Ltd v Farmer (No 2) [2013] ACTSC 166 Foster v Farquhar [1893] 1 QB 564 Howell v Dering [1915] 1 KB 54 Joint Committee of River Ribble v Croston Urban District Council [1897] 1 QB 251 Loutchansky v Times Newspapers Ltd (No 2 – 5) [2002] QB 783 Mann v Carnell (2001) 159 FLR 466 O & D Pty Ltd v Pangalos [2015] ACTCA 4 Oshlack v Richmond River Council (1998) 193 CLR 72 R v Judges of District Court; Ex parte Kruger Enterprises (1982) 41 ALR 531 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Zuin (1997) 186 CLR 622 Russell v Adwan Pty Ltd (2000) 144 ACTR 1 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Xenou v Katsanas (2002) 7 VR 335
Texts Cited:	ICF Spry, Equitable Remedies (Thomson Reuters, Lawbook Co: Sydney, 2014) 9^th ed Peter Young, Clyde Croft and Megan Smith, On Equity (Thompson Reuters Lawbook Co: Sydney, 2009)
Parties:	VTS IT Pty Limited (Plaintiff) Andrew Eyre Russell (Defendant)
Representation:	Counsel Mr J Moffett (Plaintiff) Mr K Pattenden (Defendant)
Solicitors Blands Law (Plaintiff) Pattenden Law (Defendant)
File Number(s):	SC 348 of 2014

REFSHAUGE J:

The defendant, Andrew Eyre Russell, became an employee of the plaintiff, VTS IT Pty Ltd (VTS), when VTS acquired the assets of the company Data Flex Pty Ltd (Data Flex).

Data Flex provided information technology services to its clients. These appear to have included services such as management of systems, hardware and software, as well as providing security for these systems, data backups and help desk support.

In February 2014, Data Flex was placed into administration and, in early March 2014, VTS approached the administrator and negotiated the purchase of the assets which, at that time, consisted chiefly of the goodwill of the Data Flex business.

Mr Russell had been employed by…

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

Case: [2015] ACTSC 230
Decision Date: 14 August 2015

CaseChat Overview and Summary

VTS IT Pty Limited sought to enforce an ex parte interim injunction against Andrew Eyre Russell. The application was made in the Federal Circuit and Family Court of Australia, with the matter concerning the enforcement of the injunction and associated costs. VTS IT Pty Limited claimed that Russell had breached the injunction and sought costs for the proceedings.

The legal issues before the court involved the enforcement of the interim injunction, the application of the principle that costs follow the event, and the impact of consent orders on the allocation of costs. Additionally, the court considered Russell's undertaking as to damages and its relevance to the costs order.

The court determined that Russell had indeed breached the injunction. It noted that the principle of costs following the event typically applied, but the consent orders made previously influenced the outcome. The court found that Russell's undertaking as to damages did not absolve him of liability for the costs of the proceedings. As a result, Russell was ordered to pay the costs incurred by VTS IT Pty Limited.

The court ordered Andrew Eyre Russell to pay the costs of VTS IT Pty Limited for the proceedings. This decision emphasised the importance of adhering to court orders and the implications of undertakings regarding damages on the allocation of costs in the context of interim injunctions.

Orders

Orders of the court

Andrew Eyre Russell pay the costs of VTS IT Pty Ltd of the proceedings.

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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