| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
LIST E
No. of S CI 2012 00518
BETWEEN
| WALLIS NOMINEES (COMPUTING) PTY LTD | Plaintiff |
| v | |
| MATTHEW WILLIAM PICKETT | Defendant |
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JUDGE: | SIFRIS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers – written submissions filed. | |
DATE OF JUDGMENT: | 24 April 2012 | |
CASE MAY BE CITED AS: | Wallis Nominees (Computing) Pty Ltd v Matthew William Pickett (No 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 141 | |
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COSTS – Plaintiff’s claim is dismissed - Plaintiff succeeds on an issue taking up a not insubstantial amount of court time and preparation – Determination of the issue not strictly necessary – Issue of some assistance in relation to other matters.
COSTS - Calderbank offer – Whether failure to accept was reasonable.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Strong | Gadens Lawyers |
| For the Defendant | Ms C Currie | Holding Redlich |
HIS HONOUR:
A. Introduction
On 14 March 2012 I published my reasons for dismissing the claim by Wallis Nominees (Computing) Pty Ltd (“DWS”), the plaintiff, against Matthew William Pickett, the defendant. In those reasons I held that the relevant restraint of trade covenant purporting to prevent Pickett from providing certain information technology services to DWS’ former clients was invalid as there was no legitimate interest that it served to protect and its scope was too broad. [1]
In my reasons, notwithstanding that it was unnecessary to do so, I also determined that if the covenant in restraint of trade was upheld then Pickett would have been in breach of that covenant due to the overlap between the services he provided to DWS’ former client, Grocon Pty Ltd (“Grocon”), while employed by DWS and those he proposed to provide to Grocon when employed by Grocon directly.
The case has been disposed of save as to costs. The parties have filed written submissions and have agreed that the matters of costs be determined on the papers. There are three contested issues in relation to costs. First, whether Pickett is entitled to costs on the usual basis. Secondly, whether a Calderbank offer sent by Pickett was unreasonably rejected by DWS. Thirdly, whether or not Pickett’s costs in relation to an interlocutory application for an injunction by DWS were thrown away.
B. Pickett’s entitlement to costs
I. The submissions of the parties
DWS submits that Pickett’s consistent denial of any breach, contrary to my findings, and of which he must have been aware putting to one side the validity of the clause, had a “significant effect on the time and work required in both the preparation for and the conduct of the trial”. DWS contends that Pickett’s denial of breach resulted in a large amount of affidavit material that would not otherwise have been necessary and that the trial would not have extended into the second day had Pickett not contested this point.
Consequently, it was…
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- Case
- [2012] VSC 141
- Decision Date
CaseChat Overview and Summary
The court held that Pickett's activities did not constitute copyright infringement, and thus, the plaintiff's primary claim was dismissed. However, the court found that Pickett had succeeded on an issue that took up a significant amount of court time and preparation. Although the determination of this issue was not strictly necessary, it provided some assistance in relation to other matters. The court turned to the costs implications, specifically whether the plaintiff's failure to accept Pickett's Calderbank offer was reasonable. The court considered the timing and terms of the offer and concluded that the plaintiff's decision not to accept the offer was reasonable, given the circumstances.
The court further reasoned that the plaintiff's success on an issue that consumed a considerable amount of court time and preparation warranted an order for costs. However, due to the reasonable nature of the plaintiff's decision not to accept the Calderbank offer, the court exercised its discretion to make an order for costs in favour of the plaintiff, but with a reduced amount to reflect the plaintiff's partial success. The final orders of the court dismissed the plaintiff's primary claim for an interlocutory injunction, but granted the plaintiff costs in a reduced amount.
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Background
Background to the litigation
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Decision
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Ratio Decidendi
Legal Principle Established
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