Structerre WBA Pty Ltd v Green
[2012] QDC 240
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- Unreported Judgment
- Structerre WBA Pty Ltd v Green[2012] QDC 240
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Structerre WBA Pty Ltd v Green[2012] QDC 240
Structerre WBA Pty Ltd v Green[2012] QDC 240
DISTRICT COURT OF QUEENSLAND
CITATION: | Structerre WBA Pty Ltd v Green & Anor [2012] QDC 240 |
PARTIES: | STRUCTERRE WBA PTY LTD v JARED GREEN AND EMILY BOONE |
FILE NO: | 4551/2011 |
DIVISION: |
|
PROCEEDING: | Assessment of damages following summary judgment |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 20 August 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 August 2012 |
JUDGE: | Samios DCJ |
ORDER: |
|
CATCHWORDS: | DAMAGES - assessment of damages - exemplary damages AP v. Constantino Di Pink (No 2) [2012] QDC 005 followed |
COUNSEL: |
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SOLICITORS: | Walsh Halligan Douglas for the Plaintiff. The First Defendant was self-represented. The Second Defendant did not appear. |
- [1]This is an assessment of damages following summary judgment being granted by his Honour Judge Botting in favour of the plaintiff against the defendants on 16 February 2012.
- [2]His Honour ordered that the first and second defendants pay to the plaintiff an amount of compensatory damages to be assessed, an amount of exemplary damages to be assessed, plus interest to be calculated on the assessed damages and that the first and second defendants pay the plaintiff's costs of the proceedings, to be assessed.
- [3]There is a report in evidence before me. The defendants, who appear represented by the male defendant, Mr Green, have not relied on any sworn affidavits or other documents in response to the plaintiff's evidence. He has made submissions, and I have considered those submissions.
- [4]Mr Hellen's report of Pilot Partners, which is a report commissioned by the plaintiff, quantifies economic loss of the plaintiff as $57,640. Although the plaintiff claimed damages in the sum of $59,500 and Mr Hellen was prepared to say that was a reasonable reflection of the loss of revenue suffered as a result of the defendants' actions, I accept and act on the $57,640 in this matter.
- [5]I consider the report of Mr Hellen properly sets out all the relevant considerations in coming to the conclusion he does that the loss to the plaintiff during the period examined is $57,640 and therefore there will be an amount of compensatory damages in that amount in the assessment of damages.
- [6]In my opinion, the plaintiff is entitled to interest on the claim for the period, 1 August 2011 to 20 August 2012, at 10 per cent per annum on the sum of $57,640 which is a sum of $6,095.63. That will also be included in the ultimate judgment.
- [7]The issue that remains is one of exemplary damages. His Honour Judge Botting decided that there should be an amount of exemplary damages. I have been referred to the judgment of his Honour Judge McGill in AP v. Constantino Di Pino (No 2) [2012] QDC 005. His Honour there approved of the approach as being one of assessing compensatory damages but bearing in mind the amount assessed for compensatory damages when assessing the appropriate amount of exemplary damages. That is, his Honour approved of the position to be that exemplary damages not be assessed in isolation.
- [8]Nevertheless, Mr Green, who has appeared before me today, admits to the breach. The evidence before me, though, satisfies me the breach was flagrant and deliberate. The material copied and distributed by the defendants to themselves and to customers of the plaintiff was known to the defendants or ought to have been reasonably known to them as being vital to the strength and profitability of the plaintiff's business. The defendants, I conclude, took the opportunity and profited by the opportunity they took.
- [9]What is of concern is that after the summary judgment, a representative of the plaintiff went to the defendants' premises and located a hard binder of material and had to recover that. Further, the defendants have not expressly returned that binder before it was recovered. Further, the defendants have not, either by themselves or by their solicitors, responded to a letter in May of this year asking for confirmation that the defendants had destroyed the material they had copied which belonged to the plaintiff.
- [10]The defendants, in my opinion, are demonstrated to have profited by the breach and that an award of exemplary damages should be one that does ensure that the defendants learn that they should not profit from their tort. That is, as Judge McGill recognised in Di Pino, one of the justifications for the award of exemplary damages is to teach a wrongdoer that tort does not pay. Also a relevant consideration is, as here, the defendants have profited from the tort to the detriment of the plaintiff.
- [11]It seems to me that, in this case, the assessment of the loss by Mr Hellen is one for a limited period, from July 2011 to the date of the claim, being December 2011. The damage could be much wider than has been assessed by Mr Hellen and, as I said, it has not been addressed by the defendants expressly returning the hard copy binder or making an express declaration that the material has been deleted or some other satisfactory arrangement made to ensure that they are not continuing to use the information that belongs to the plaintiff.
- [12]Therefore, I come to the view that exemplary damages in this case should be assessed in the sum of $60,000. The total therefore of damages that I assess, inclusive of interest, is $123,735.63. There will be judgment for that sum in favour of the plaintiff against the defendants.
- [13]His Honour Judge Botting has already made an order as to costs. However, I order that in addition to those costs the defendants pay the plaintiff the sum of $7,593.30 for the cost of the expert report, in addition to the costs ordered by his Honour Judge Botting on 16 February 2012.