Anutech Pty Limited v Latent Energy Systems Pty Limited [1993] ACTSC 75 (6 August 1993)

SUPREME COURT OF THE ACT

ANUTECH PTY LIMITED v. LATENT ENERGY SYSTEMS PTY LIMITED
No. SC401 of 1992
Number of pages - 3

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

HEARING

CANBERRA, 9 November 1992, 19 March, 7 May, 24 June, 6 July and 2 August 1993
6:8:1993

Counsel for the Plaintiff: G. Richardson

Instructing Solicitors: Minter Ellison Morris Fletcher

Counsel for Defendant: C. Whitelaw

Instructing Solicitors: Macphillamy Cummins and Gibson

ORDER

The Court orders that:
1. The defendant pay the plaintiff's costs of and incidental to the

Notice of Motion dated 9 November 1992.
2. (a) The Notice of Motion dated 19 March 1993 is dismissed.
(b) The defendant pay the proposed second cross defendant's costs of
and incidental to the Notice of Motion dated 19 March 1993.
3. (a) The Notice of Motion dated 7 May 1993 is dismissed.
(b) The defendant pay the plaintiff's costs of and incidental to the
Notice of Motion dated 7 May 1993.
4. (a) The Notice of Motion dated 24 June 1993 is dismissed.
(b) The defendant pay the plaintiff's costs of and incidental to the
Notice of Motion dated 24 June 1993.
5. (a) The Notice of Motion dated 6 July 1993 is dismissed.
(b) The defendant pay the plaintiff's costs of and incidental to the
Notice of Motion dated 6 July 1993.
6. No order as to costs of the Notice of Motion dated 2 August 1993.
7. The defendant to pay the costs of and consequential to its
amendment of the Defence and Counterclaim.

DECISION

MASTER A. HOGAN The plaintiff in this action sues the defendant for moneys alleged to be due under a number of agreements relating to the use of certain technology and its development and marketing.

2. There has been a series of interlocutory proceedings, the relief sought in which has now been substantially agreed between the parties.

3. The question of the costs of those interlocutory proceedings is outstanding.

4. The defendant filed a Defence and Counterclaim, and has, from time to time, sought leave to join as defendants to the Counterclaim two persons who were not already parties to the action.

5. The first Notice of Motion, dated 9 November 1992, was filed by the plaintiff, seeking an order that the defendant provide security for costs. The defendant has now agreed to provide the security.

6. The Associate's record of the proceedings on 11 December 1992 purports to show that an order was made on that date that the costs of that Notice of Motion be paid by the defendant. If that order was made, it has not been formally entered up. In fact the question about security for costs remained in contention until the last hearing. It is an issue on which the plaintiff has succeeded. I propose to order formally that the defendant pay the costs of and incidental to that Notice of Motion.

7. On 19 March 1993 the plaintiff and Mr Morphett, then proposed as a cross defendant, applied to strike out the Defence and Amended Counterclaim, and seeking security for the costs of Mr Morphett.

8. In its latest proposal, the defendant did not seek to pursue any claim for relief against Mr Morphett.

9. I therefore propose to order that the defendant pay Mr Morphett's costs of that Notice of Motion.

10. The next Notice of Motion was that dated 7 May 1993, in which the plaintiff and Mr Morphett sought to set aside a subpoena for production of certain documents. On 10 May 1993 that motion was adjourned to 12 May 1993. On 12 May 1993 the parties produced a written Memorandum of Agreement whereby all Notices of Motion and subpoenas were stood over until 30 July 1993, costs were reserved, and all proceedings were stayed until that date. The Memorandum provided for the appointment of independent experts to conduct experiments and report about certain technical issues that would arise in the proceedings.

11. The events contemplated by that Memorandum of Agreement did not take place.

12. By Notice of Motion dated 24 June 1993 the plaintiff sought leave to approach the Clerk to fix a date for the hearing of the Notices of Motion of 9 November 1992 and 19 March 1993, for the return of the defendant's subpoena, for the striking out of the Amended Counterclaim, and for directions for the further conduct of the interlocutory proceedings.

13. On 2 July 1993 that Notice of Motion was adjourned to 16 July 1993 and costs were reserved.

14. On 6 July 1993 the defendant filed a Notice of Motion seeking specific performance of the Memorandum of Agreement dated 12 May 1993, returnable on 16 July 1993.

15. On 16 July 1993, by consent, the Amended Counterclaim was struck out, and leave was granted to the defendant, to file and serve a Further Amended Defence and Counterclaim. The Notices of Motion were stood over to 30 July 1993. Costs were reserved.

16. On 30 July 1993 the Notices of Motion were further adjourned to 3 August 1993. The defendant was directed to file and serve a Notice of Motion setting out all the orders that it might seek by midday on 2 August 1993. The defendant was ordered to pay the costs of the hearing on 30 July 1993.

17. On 2 August 1993 the plaintiff (sic) filed a Notice of Motion, returnable on 3 August 1993, that the Defendant be granted leave to file an Amended Defence and Counterclaim. The defendant did not file any Notice of Motion returnable on 3 August 1993.

18. On 3 August 1993 the parties agreed upon a further series of orders, relating to the filing of a further Amended Defence and Counterclaim, setting out a timetable for particulars and discovery, and interrogatories. The defendant consented to an order for security for costs.

19. The Counterclaim then proposed by the defendant sought to join as second cross defendant a Professor Kaneff. I refused leave to join him, and restricted the leave to file a counterclaim to a counterclaim against the plaintiff only.

20. Counsel for the defendant submitted that the costs of those Notices of Motion as yet not disposed of be costs in the cause.

21. In the events that have happened it is apparent that the plaintiff has obtained substantially the relief that it sought, and the defendant has obtained only the benefits of the Court's indulgence to get its case into order. What has happened has not been a normal or necessary part of the conduct of the litigation. I see no reason why the normal consequences should not follow.

22. The plaintiff has obtained by consent the substantial relief sought in its Notice of Motion dated 9 November 1992. I order the defendant to pay the costs of and incidental to that Notice of Motion.

23. I formally dismiss the Notice of Motion dated 19 March 1993. I order the defendant to pay the costs of the proposed second cross defendant of and incidental to it.

24. The subpoena which was the subject of the plaintiff's Notice of Motion dated 7 May 1993 has not been pursued, and it is now not necessary to decide the questions raised by the Notice of Motion. The subpoena was to have been used for the purposes of the preceding Notices of Motion. I formally dismiss the Notice of Motion dated 7 May 1993. I order the defendant to pay the costs of and incidental to that Notice of Motion.

25. For similar reasons I also formally dismiss the Notice of Motion dated 24 June 1993. I order the defendant to pay the costs of and incidental to that Notice of Motion.

26. The defendant has failed to obtain the relief sought by its Notice of Motion dated 6 July 1993. I dismiss that Notice of Motion and order the defendant to pay the costs of and incidental to it.

27. I do not see that any useful purpose was served by the plaintiff's Notice of Motion of 2 August 1993. The leave to amend the Defence and Counterclaim granted on 3 August 1993 was obtainable in any event on the basis of the previous Notices of Motion that had not been formally and finally disposed of. I make no order about the costs of that Notice Motion.

28. To avoid any possibility of doubt, I make it clear that the costs orders that I have made are intended to include any costs reserved when the matters were before the Court.

29. I also order the defendant to pay the costs of and consequential upon its amendment of the Defence and Counterclaim.