Ringtail Asia Pacific Pty Ltd v FTI Technology LLC [2009] NSWSC 1439 (29 December 2009)

Last Updated: 4 January 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Ringtail Asia Pacific Pty Ltd v FTI Technology LLC [2009] NSWSC 1439


JURISDICTION:


FILE NUMBER(S):
327487/09

HEARING DATE(S):
29 December 2009


EX TEMPORE DATE:
29 December 2009

PARTIES:
Ringtail Asia Pacific Pty Ltd (Plaintiff)
FTI Technology LLC (Defendant)

JUDGMENT OF:
Gzell J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
P McDonald (Plaintiff)


SOLICITORS:
ClarkeKann Lawyers (Plaintiff)
Mallesons Stephen Jaques (Defendant)


CATCHWORDS:
PROCEDURE - Injunctions - franchise agreement between plaintiff and defendant - whether third party substituted for plaintiff - no negative stipulation - whether injunctive relief appropriate

LEGISLATION CITED:


CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
Application for injunctions dismissed.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


GZELL J

TUESDAY 29 DECEMBER 2009

327487/09 RINGTAIL ASIA PACIFIC PTY LTD v FTI TECHNOLOGY LLC

EX TEMPORE JUDGMENT

1 I have before the court an amended summons in this matter. What is sought from the Vacation Judge is an order restraining the defendant, FTI Technology LLC (FTI), by itself, its related entities, its agents, its employees, its subsidiaries or otherwise, from:

(a) approaching or contacting the sublicensees of the plaintiff, Ringtail Asia Pacific Pty Ltd (RAP), (a list of sublicensees is annexure “A” to the summons) to induce, or attempt to induce, the sublicensees to terminate their contractual relationship with RAP or to inform, or attempt to inform, the sublicensees that RAP is not entitled to use, reproduce, market, or sell, each of the respective products in the Ringtail Product Suite;

(b) making statements in the market place that RAP or e.law Holdings Pty Limited (e.law), or its related entities, is not entitled to use, reproduce, market, or sell, each of the respective products in the Ringtail Product Suite;

(c) terminating the Ringtail Relationship Deed between RAP and FTI dated 15 June 2005.

2 What is also sought is an order that FTI, or any related entities, retract by letter within 24 hours any notification given to any of RAP's sublicensees in which it asserts that e.law, or any of its related entities, including RAP, is not entitled to market, or sell the Ringtail Product Suite.

3 And, finally, what is sought is an order that FTI serve on RAP within 48 hours copies of letters sent to RAP's sublicensees in which it asserts that e.law, or any of its related entities, including RAP, is not entitled to market or sell the Ringtail Product Suite and copies of each retraction letter sent by FTI pursuant to the previous order.

4 The Ringtail Product Suite is the subject of the Ringtail Relationship Deed, the parties to which are RAP and FTI.

5 FTI asserts that CCH Workflow Solutions Pty Ltd (WFS) became the party to that agreement in the place of RAP, either by way of transfer or by the conduct of the parties.

6 In relation to the conduct of the parties, the licence granted by the agreement was originally exclusive, but a payment was made to ensure that it would cease to be exclusive. That payment was made to WFS and not to RAP.

7 There has been discussion between RAP and FTI in relation to the RAP's change in shareholding. Its previous shareholders have now been replaced by an assignment of the shares to one of the e.law entities. This did not involve a transfer of the licence or the rights under the licence, which would have required the written consent of FTI.

8 RAP argues that it was and remains the party to dealings and that any relationship between FTI and WFS is additional to that between FTI and RAP. It points to invoices issued to it by FTI; it points to correspondence by FTI indicating that it is prepared to comply with, for example, alternative dispute resolution procedures under the agreement.

9 It seems to me that there is a serious question to be tried. But it is inappropriate that it be determined by the Vacation Judge who is here to ensure that urgent matters receive orders that will create or maintain a status quo until they can be dealt with either at the interlocutory level or the final level in due course in term time.

10 There is no indication on the part of RAP that there is any negative stipulation that is being breached by FTI. That seems to me to raise a problem for RAP in that the auxiliary jurisdiction of the court of equity to restrain a breach of contract is not invoked.

11 It also seems to me that there is a question whether damages are a suitable remedy, thereby denying an entitlement to injunctive relief.

12 On the balance of convenience, if the Vacation Judge is to grant any of the injunctive relief sought by RAP, it will be necessary to prejudge the issue whether RAP continues to be a party to the Ringtail Relationship Deed and that the purported termination of it by FTI is ineffective, and the issue whether RAP has ceased to be a party to the deed and WFS's activities have been in breach of the deed and FTI was entitled to terminate it.

13 To make a decision on those issues to ground an injunction to maintain one rather than the other position as the status quo until the new term is a task that I do not intend to embrace as the Vacation Judge. The balance of convenience favours me taking no action.

14 That means that the matter should remain as it is and I decline to make the orders in paragraphs 3, 4 and 5 of the amended summons.

15 I reserve the question of costs.

16 I make orders in terms of the short minutes of order initialled by me, dated by me and placed with the papers.

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LAST UPDATED:
31 December 2009