- Unreported Judgment
SUPREME COURT OF QUEENSLAND
No S6375 of 2002
DAVID THOMAS GRANT AND SUZANNE PATRICIA GRANT
READY CO PTY LTD ACN 078 092 047
AUSTRALIAN TEMPORARY FENCING PTY LTD ACN 060 402 048
HER HONOUR: In this matter of Grant and Australian Temporary Fencing, the respondent/plaintiffs were successful in resisting applications for summary judgment by the defendant and now seek the costs of this resistance together with some reserved costs from 6 March 2003.
I will deal with the question of reserved costs first. The claim and statement of claim were filed in July 2002 and a defence was filed in August 2002. There were some amendments and provision of particulars of no consequence for present purposes.
In December 2002 the solicitors for the defendant wrote to the plaintiffs' solicitor enclosing a proposed amended defence which raised for the first time the issues as to the assignment of the standard patent and the grant of a licence which were the basis of the summary judgment application.
On 7 February 2003 the defendant filed its application seeking leave to file the amended defence and counterclaim, summary judgment on the counterclaim in the form of an order for rectification and orders dismissing the claims of the plaintiffs with a return date of 6 March 2003.
On 5 March 2003 the amended defence and counterclaim were filed in the Court.
On 6 March 2003 a consent order was made giving the defendant leave to file its amended defence and counterclaim and directing the plaintiffs to file and serve their reply and answer on or before 19 March 2003.
The costs of the application and the adjournment were reserved.
The plaintiffs, plainly enough, were entitled to the period of 14 days to defend the counterclaim and to eight days from the date of the formal amendment in which to amend their pleadings.
The application for summary judgment as at 6 March clearly was premature and the plaintiff should have their costs of the adjournment on that day.
The substantive application, as it was decided by me, fell into two parts, the application for summary judgment on the counterclaim as against the first plaintiff, argued on the basis that there had been no effective assignment of the standard patent of the second plaintiffs, and the application for summary judgment on the defence as against the second plaintiff, argued on the basis that it had not been granted an exclusive licence.
Both parts of the application were dismissed, but on different grounds. In respect of the question of whether there had been an assignment of the standard patent, my primary reason for dismissing the application was a pure construction point.
In those circumstances, I consider that the first plaintiff is entitled to its costs of the application for summary judgment on the counterclaim against it.
In respect of the application for judgment on the defence against the second plaintiff, however, matters are not so clear. My conclusion was that there was a live question requiring determination at trial as to whether the exclusive licence extended to include the standard patent. It depended, in essence, on my impression that extrinsic evidence might well resolve the issue and was likely to be forthcoming, but it was not the case that clear evidence of that kind was before the Court. Nor was it an aspect on which the applicant/defendant would necessarily be in a position to know in advance just what that evidence might be.
In short, I do not think that what the second plaintiff relied to resist judgment was so clear as to fall within rule 299. It remains to be seen whether the second plaintiff can prove its status as exclusive licensee.
The proper order then is that the parties' costs of the application for summary judgment, so far as the second plaintiff is concerned, be costs in the cause.
The orders then are that the defendant pay the first plaintiff's costs of the application for summary judgment on the counterclaim against it, including the reserved costs of the adjournment on 6 May 2003 and that it pay the second plaintiff's costs of the adjournment on 6 May 2003, but that the costs of the application, otherwise, so far as it concerns the second plaintiff, be the parties' costs in the cause.
- Published Case Name:
David Thomas Grant v Australian Temporary Fencing Pty Ltd
- Shortened Case Name:
Grant v Australian Temporary Fencing Pty Ltd
 QSC 219
26 Jun 2003
No Litigation History