On-line Consulting P/L v. Landmark Systems Corporation & Anor [1994] FCA 1005

Federal Court of Australia|1994-12-08|Before: Whitlam J

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 857 of 1994 ) GENERAL DIVISION ) ON-LINE CONSULTING PTY LIMITED Applicant LANDMARK SYSTEMS CORPORATION AND ANOR Respondent Coram: Whitlam J Place: Sydney Date: 8 December 1994

The parties are agreed that the application herem be dismissed. The only

question to be resolved 1s the question of costs of the application.

One may well envisage circumstances in which the making of such representations could be misleading or deceptive conduct, which ought to be enjomed under the Trade Practices Act. Such a circumstance might emst where there had been some adjudication of entitlement to terminate by a competent tribunal. However, the situation m the market place when there is a commercial dispute between two organisations, each of whom asserts its rights - one to have terminated, and the other to resist the purported

termination and to insist upon performance of the contract, is in the normal

circumstances something that can be worked out in the market place.

Here it is common ground between the parties that the question of the entitlement will be resolved in the courts of Virginia, which jumsdiction the agreement expressly provides shall furnish not simply the law to be applied, but also the forum to decide the question. [ am informed by the parties that proceedings are already on foot

in Virginia and that the matter will be shortly resolved.

Mr Moore relies, m support of his request for costs, on the fact (which is accepted for purposes of the costs application by the respondents) that his client did not know that the respondents had been making such representations until after this application was made. He draws attention to a paragraph im the affidavit in support of the application, which deposes to conversations where the first respondent's officers had said they would

None of that strikes me as being very unusual. In all the circumstances it seems

to me that, the application was doomed to failure. Accordingly, I order, by consent, that

the application be dismissed and, over the opposition of the applicant, that the applicant

I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

G.A. Moore of counsel instructed by Gibsons appeared for the applicant

Mr PN. Argy of Mallesons Stephen Jaques appeared for the respondents

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Judgment (16 paragraphs)

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