mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 ; (2007) 25 ACLC 1216
Outcome: cited
winding up procedure is not to be used for the purpose of compelling a solvent company to pay a disputed debt: Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 ; (2007) 25 ACLC 1216. Nor is it to be used for the purpose of coercing a company into paying a debt without allowing the company a reasonable opportunity to ascertain that the debt is payable: L &amp; D Audio Acoustics Pty Ltd v Pioneer Electronics Australia Pty Ltd (1982) 7 ACLR 180 at 183.
Case: Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175
Outcome: cited
finding is enough, it seems to me, to make the order sought by the defendants that the plaintiffs pay the defendants' costs on an indemnity basis: In the matter of Bond Corporation Holdings Ltd (1990) 1 WAR 465 ; Packer v Meagher (1984) 3 NSWLR 486. In Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175 , Davies J said at [7]: ... it is not open to an individual Judge to award costs having regard to his own view as to the adequacy of party/party costs so fixed. An award of costs on an indemnity basis may be made only in a special case, where the circumstances justify departure from the ordinary principle. The circumstances must be such as to justify an award indemnifying the successful party in respect of all of the costs incurred, save only as to those costs which are unreasonable in amount. The very nature of the award of costs on an indemnity basis gives a guide to the type of case in which such an award is appropriate. Thus, indemnity costs may be awarded where unsuccessful proceedings have been brought and prosecuted, not for the bona fide purpose of protecting and enforcing a legal right, but to achieve an ulterior or extraneous purpose. However, there are further reasons for making the orders.
Case: Re A Company (No 0012209 of 1991) [1992] 2 All ER 797
Outcome: cited
will be an abuse of process if a creditor brings a winding up proceeding under Pt 5.4 against a solvent company as a means of putting pressure on the company to pay its debt: Baillieu Knight Frank v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 ; Re A Company (No 0012209 of 1991) [1992] 2 All ER 797.
Case: Re British Electric Street Tramways [1903] 1 Ch 725
Outcome: cited
can be no doubt, because these winding up proceedings were dismissed, that the defendants are entitled to the costs of the proceedings as against the plaintiffs at least on a party and party basis: Ritter v Godfrey [1920] 2 KB 47 ; Re British Electric Street Tramways [1903] 1 Ch 725. No submission was made by any party to the contrary.
Case: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin [1997] HCA 6 ; (1997) 186 CLR 622
Outcome: cited
is not to try a hypothetical action between the parties. The Court should not be called upon to decide whether the plaintiffs' proceedings if pursued would or would not have succeeded. The parties should not be burdened with the conduct of proceedings already dismissed. Moreover, the only evidence before the Court is in affidavit form. The Court has not had the advantage of seeing and hearing the witnesses on matters where the facts are in dispute. In those circumstances, the inquiry must be limited to whether commencing the proceedings was reasonable and whether the conduct in the proceedings, including the conduct leading up to my dismissing the proceedings, was reasonable: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin [1997] HCA 6 ; (1997) 186 CLR 622 per McHugh J at 624. The following matters are taken from the affidavits to which I have referred. The defendant, Hardel is the trustee for the Hardel Investments Unit Trust. It entered into a loan agreement with Contor as trustee for the Contor Developments Unit Trust on or about 16 December 2005 (the loan agreement).
Case: Re Struthers (liq of Project Management, Architecture and Construction Interiors Pty Ltd) (No 3) [2005] NSWSC 1113 ; (2005) 56 ACSR 238
Outcome: applied
decision in U.T.S.A. v Ultra Tune 1 VR 204 was followed by Brereton J in Re Struthers (liq of Project Management, Architecture and Construction Interiors Pty Ltd) (No 3) [2005] NSWSC 1113 ; (2005) 56 ACSR 238. His Honour said at [50]-[51]: At first sight, the suggestion that the Commonwealth Parliament has enacted a provision to detract from the existing costs powers of courts in which it invests jurisdiction to deal with proceedings under the Corporations Act is a surprising one. But were it not for the judgment of Chernov J in UTSA , despite these initial impressions about s 1335 , I would unquestionably have followed Wridgemont and Australian Forest Managers , particularly given Lindgren J's strong endorsement of Wridgemont , and also given that those cases had been followed in this court by Bergin J. However, in circumstances where there has been, since Australian Forest Managers , what impresses me as a compelling analysis of the history and purpose of the section by Chernov J &#8212; the benefit of which does not appear to have been afforded to Bergin J when her Honour came to consider the point &#8212; and where Ryan J, albeit without reference to the authorities, had adopted an opposite approach, I consider that I am at liberty to give effect to my own views. I agree with Chernov J that s 1335 should not be construed as a limiting provision, but as an enabling one. Its history shows that it was intended to confer a jurisdiction or a power to make costs orders when there was doubt as to the existence that power, at least in the equitable jurisdiction of this court in this state. If there were no s 1335(2) , the court would not be without power to make costs orders in proceedings under the Act; it would have all its powers under the Supreme Court Act and the Civil Procedure Act. Section 1335 was not intended to limit such other powers to make costs orders as the court already enjoyed, but to supplement them. In my opinion, the current provisions ought not be taken as intended to exclude the power of courts under, for example, Civil Procedure Act, s 98, and UCPR, r 42.27, to make costs orders which are designed to protect the processes of the courts and the integrity of those processes and the procedural rights of parties who litigate in those courts. The defendants contended that in the event that the decisions of this Court in Re Wridgemont Display Homes Pty Ltd [1992] FCA 604 ; 39 FCR 193 and in Australian Forest Managers Ltd (in liq) v Bramley 136 ALR 431 are to be preferred to the decisions of in U.T.S.A. Pty Ltd (In liquidation) v Ultra Tune Australia Pty Ltd 1 VR 204 and Re Struthers (liq of Project Management, Architecture and Construction Interiors Pty Ltd) (No 3) [2005] NSWSC 1113 ; 56 ACSR 238 then I should make an order joining the non-parties as parties for the purpose of avoiding the consequences of s 1335(2).
Case: Ritter v Godfrey [1920] 2 KB 47
Outcome: cited
can be no doubt, because these winding up proceedings were dismissed, that the defendants are entitled to the costs of the proceedings as against the plaintiffs at least on a party and party basis: Ritter v Godfrey [1920] 2 KB 47 ; Re British Electric Street Tramways [1903] 1 Ch 725. No submission was made by any party to the contrary.
Case: TS Recoveries Pty Ltd v Sea-slip Marinas (Aust) Pty Ltd (2007) 25 ACLC 1371 
Outcome: cited
purpose of a winding up order and the appointment of a liquidator is to impose a regime for the benefit of all of the company's creditors not to secure the repayment of the plaintiff creditor's debt: TS Recoveries Pty Ltd v Sea-slip Marinas (Aust) Pty Ltd (2007) 25 ACLC 1371 at [19].
Case: Vestris v Cashman (1998) 72 SASR 449
Outcome: applied
Vestris v Cashman (1998) 72 SASR 449 at 467, I said, when a member of the Supreme Court of South Australia: The circumstances in which it is just to order costs against a person who was not a party to the litigation will be both rare and exceptional: see Aiden Shipping Ltd v Interbulk Ltd per Lord Gough of Chieveley. If the order for costs which is sought against non-parties in lieu of, in substitution for or complementary to an order for costs against a party, the circumstances for making such an order will not arise unless there is some connection or association between the party to the litigation and the non-party against whom the order for costs is sought. The connection must be of a kind that makes it just to make an order for costs in that the connection must be material to the question of costs: see Bischof v Adams (1992) 2 VR 198 at 205. The ordinary rule is that only parties to the proceedings will be subject to costs orders but that rule will give way where "within the circumstances of the particular case, it is just and equitable that a non-party pay the costs of a party to the litigation": Vestris v Cashman 72 SASR 449 at 469.
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: cited
winding up proceeding which is brought for a purpose other than the purpose identified may amount to an abuse of process: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518-522. A winding up proceeding brought for a collateral purpose will be an abuse of process and will attract the Court's implied power to prevent abuse of its own processes: David Grant &amp; Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 at 279.
Case: Logic Group Tyres Pty Limited v Tokio Marine &amp; Nichido Fire Insurance Co Limited [2008] FCA 1297
Outcome: related
This is an application for costs in relation to a proceeding in which I have already given a judgment on 21 August 2008: Logic Group Tyres Pty Limited v Tokio Marine &amp; Nichido Fire Insurance Co Limited [2008] FCA 1297. In that judgment, I dismissed the application by the applicant. Pursuant to the Court's broad discretion as to costs, and following the general principle that costs follow the event, I ordered that the applicant pay the costs of the respondents. 2 Subsequent to delivery of that judgment, the first respondent made an application seeking costs from the applicant on an indemnity basis. The second respondent did not seek such an order. I granted the applicant and first respondent some time to file and serve submissions as to whether the applicant should pay indemnity costs to the first respondent. 3 The applicant submits that it should not have to pay the costs of the first respondent on an indemnity basis. The applicant goes further and, without leave to file submissions on this point and despite the Court's order on 21 August 2008, argues that it should not have to pay any costs. 4 To support its position, the applicant makes several arguments. Most of these arguments relate to the conduct of the case and, in my view, to a large extent simply seek to canvass for a second time the merits of the dispute. By way of example, the applicant submits: that the respondents did not "come to the Court with clean hands"; that there was inadequate disclosure of certain information, and in particular information relating to Australian Business Numbers; that it has suffered and will continue to suffer considerable loss; that the second respondent has breached s 153 of the Corporations Act 2001 (Cth); that the respondents' pleadings were inadequate; and that there was late filing of relevant documents and/or non-compliance with orders of the Court. 5 I have considered the arguments advanced on behalf of the applicant. They are not sufficient to warrant variation of the order made on 21 August 2008. It is also my view that the applicant's arguments do not have sufficient force to displace the general principle which led me to the conclusion on the last occasion that discretion should be exercised to require the applicant to pay the costs of the respondents.
Case: Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2008] FCA 126
Outcome: cited
In relation to the first respondent's application for indemnity costs, I note that the first respondent made an offer of compromise, which it filed and served on 28 April 2008. The content of that offer was that judgment would be entered for the first respondent and the first respondent would not seek its costs in the proceeding. In the present case, I am satisfied that such an offer was reasonable. As is evident from my earlier judgment, the case advanced by the applicant was ultimately unsuccessful, the arguments which they advanced as to agency and liability were clearly untenable, and the order of the Court was less favourable to the applicant than those offered to it by the first respondent on 28 April 2008. In the present circumstances having regard to s 43 of the Federal Court of Australia Act 1976 (Cth), O 23 r 11 of the Federal Court Rules , and the relevant authorities on this point (see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 ; Dukemaster Pty Ltd v Bluehive Pty Limited [2003] FCAFC 1 ; Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2008] FCA 126) I am of the view that making the orders sought by the first respondent is appropriate.
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
In relation to the first respondent's application for indemnity costs, I note that the first respondent made an offer of compromise, which it filed and served on 28 April 2008. The content of that offer was that judgment would be entered for the first respondent and the first respondent would not seek its costs in the proceeding. In the present case, I am satisfied that such an offer was reasonable. As is evident from my earlier judgment, the case advanced by the applicant was ultimately unsuccessful, the arguments which they advanced as to agency and liability were clearly untenable, and the order of the Court was less favourable to the applicant than those offered to it by the first respondent on 28 April 2008. In the present circumstances having regard to s 43 of the Federal Court of Australia Act 1976 (Cth), O 23 r 11 of the Federal Court Rules , and the relevant authorities on this point (see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 ; Dukemaster Pty Ltd v Bluehive Pty Limited [2003] FCAFC 1 ; Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2008] FCA 126) I am of the view that making the orders sought by the first respondent is appropriate.
Case: Dukemaster Pty Ltd v Bluehive Pty Limited [2003] FCAFC 1
Outcome: cited
In relation to the first respondent's application for indemnity costs, I note that the first respondent made an offer of compromise, which it filed and served on 28 April 2008. The content of that offer was that judgment would be entered for the first respondent and the first respondent would not seek its costs in the proceeding. In the present case, I am satisfied that such an offer was reasonable. As is evident from my earlier judgment, the case advanced by the applicant was ultimately unsuccessful, the arguments which they advanced as to agency and liability were clearly untenable, and the order of the Court was less favourable to the applicant than those offered to it by the first respondent on 28 April 2008. In the present circumstances having regard to s 43 of the Federal Court of Australia Act 1976 (Cth), O 23 r 11 of the Federal Court Rules , and the relevant authorities on this point (see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 ; Dukemaster Pty Ltd v Bluehive Pty Limited [2003] FCAFC 1 ; Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2008] FCA 126) I am of the view that making the orders sought by the first respondent is appropriate.
Case: Stack v Brisbane City Council [2004] FCA 354
Outcome: considered
As far as I can see, the Council defended the proceedings upon the basis of its further amended defence and cross-claim filed on 4 August 1997 (ex JFW 10 to Ms Whiting's affidavit), notwithstanding the fact that such pleading was delivered prior to the further amended and consolidated statement of claim filed on 6 October 1997. Although, in that document, the applicants relied upon two patents, the Council's defence related only to patent 645740 (the "previous patent"). It seems that the previous proceedings originally concerned the previous patent, whilst action No QG 21 of 1996 involved a similar claim based on petty patent 662284. See Stack v Brisbane City Council [2004] FCA 354 at [13] - [15] . Both petty patents were based upon patent application 85236/91 which, in turn, was based upon two provisional applications, PK 2036 and PK 5286. The temporal history of these documents was as follows: '30 August 1990 - provisional application PK 2036 filed 26 March 1991 - provisional application PK 5286 filed 30 August 1991 - patent application 85236/91 filed 25 August 1993 - petty patent application 645740 filed 20 January 1994 - petty patent 645740 issued 17 February 1994 - petty patent application 662284 filed 24 August 1995 - petty patent 662284 issued.' 11 Shortly before the trial of the previous proceedings, the applicants sought to consolidate them with action No QG 21 of 1996. Consolidation was granted. However the trial which followed was, as Cooper J held, only concerned with the previous patent. It seems that for present purposes only the previous patent and application 85236/91 are relevant.
Case: Stack v Brisbane City Council [1999] FCA 1279
Outcome: considered
The Council denied the validity of the previous patent and denied that it had exploited, or would exploit the alleged invention. This latter allegation appears to have involved a denial that the relevant water meter assemblies were within any claim in the previous patent. By its cross-claim the Council sought revocation of the previous patent. Its grounds were said to appear in particulars of objection which do not appear in Ms Whiting's affidavit. However the grounds ventilated at the trial appear from the reasons for judgment ( Stack v Brisbane City Council [1999] FCA 1279) and from the reasons of the Full Court ( Stack v Davies Shephard Pty Ltd &amp; Ors [2001] FCA 501). One ground of invalidity was that neither Stack nor GST was entitled to the patent because Stack was not the sole inventor.
Case: Stack v Davies Shephard Pty Ltd &amp; Ors [2001] FCA 501
Outcome: considered
The Council denied the validity of the previous patent and denied that it had exploited, or would exploit the alleged invention. This latter allegation appears to have involved a denial that the relevant water meter assemblies were within any claim in the previous patent. By its cross-claim the Council sought revocation of the previous patent. Its grounds were said to appear in particulars of objection which do not appear in Ms Whiting's affidavit. However the grounds ventilated at the trial appear from the reasons for judgment ( Stack v Brisbane City Council [1999] FCA 1279) and from the reasons of the Full Court ( Stack v Davies Shephard Pty Ltd &amp; Ors [2001] FCA 501). One ground of invalidity was that neither Stack nor GST was entitled to the patent because Stack was not the sole inventor.
Case: N V Philips Gloeilampenfabrieken &amp; Anor v Mirabella International Pty Ltd [1995] HCA 15 ; (1995) 183 CLR 655
Outcome: cited
Such a manner of new manufacture may not necessarily be a patentable invention under the Act. See the decision of the High Court in N V Philips Gloeilampenfabrieken &amp; Anor v Mirabella International Pty Ltd [1995] HCA 15 ; (1995) 183 CLR 655. Other requirements of the Act must also be satisfied. The inclusion in the definition of an 'alleged' invention is also relevant. It is arguable that s 165 contemplates remuneration for exploitation of an invention which is not patentable. However such an interpretation seems unlikely. The notion of remuneration for exploitation implies some recognizable "right" in the invention which is protected or recognized by the Act. An applicant may, prior to grant, have a right to such grant and a right to assign, but it is difficult to see how Crown use could, absent s 161, "infringe" such rights. The primary rights conferred by the Act are those conferred by s 13 and supporting sections such as those contained in Ch 11. Those rights are conferred upon patentees. If an applicant has, prior to grant, any rights in connection with exploitation of the invention, they are inchoate. Infringement before grant may be actionable after grant because the patent will probably have retrospective effect pursuant to ss 47 and 39. As the Act confers no rights in connection with the exploitation of a non-patentable invention, it seems unlikely that s 165 does so. Of course the parties may agree terms of exploitation upon a mistaken belief as to the patentability of an invention, but this case concerns legal rights and obligations, not freedom of contract. 29 As I have pointed out, the section does not expressly confer power to determine whether a patent is valid or whether an application is likely to result in a valid grant. Nor does it expressly authorize an enquiry as to whether there has been exploitation of an invention. This suggests that it assumes acceptance by the parties of the validity of any patent or anticipated patent and that the relevant authority's conduct or proposed conduct amounts, or will amount to exploitation. On the other hand s 169 empowers a patentee (but not an applicant) to apply for a declaration as to exploitation and an exploiting authority to counter-claim for revocation. 30 Whilst it would be impossible for anybody to commence proceedings concerning the validity of a patent in advance of grant, it would be possible to seek to determine entitlement to a grant. However proceedings of that kind would compromise the Commissioner's power and duty to grant patents and might lead to embarrassing results. Proceedings as to infringement in advance of grant might also pose problems. It is presumably for this reason that in a slightly different context, a declaration under Part 2 of Ch 11 may not be made prior to grant (s 126(1)).
Case: Singh v Singh (1897) LR 24 Ind App 50
Outcome: considered
To put the matter in a slightly different way, it might be said that in the previous proceedings it was determined that Stack was not individually entitled to a grant pursuant to application 85236/91, and that GST had not derived a valid patent from him. That says nothing concerning the entitlement of Stack and Grieves jointly, or GST claiming through them. Some support for this proposition is to be found in the decision of the Privy Council in Singh v Singh (1897) LR 24 Ind App 50. In that case, it was held that dismissal of a claim for want of a necessary plaintiff (a joint claimant) did not justify a plea of res judicata in subsequent proceedings by all necessary plaintiffs. That decision concerned procedural matters, namely the joinder of necessary parties. The decision in the previous proceedings was not based on procedural considerations but on the absence of substantive rights. Nonetheless any different result in the present case would mean that if Grieves were to claim, he could not join Stack as an applicant. Presumably, he might join him as a respondent and, in any event, would presumably hold the benefit of any judgment on trust for the two of them. Such an unlikely result suggests that the better view is that Stack would not be prevented from claiming with Grieves as joint applicants, and that GST may claim through them jointly. 42 There is another approach to the question which leads to the same result. At par 383 in Spencer Bower, Turner &amp; Handley, The Doctrine of Res Judicata (3rd edition) the learned author observes: 'There is substantial authority that there can be no res judicata in a changing situation.'