Ezystay Systems Pty Ltd v Link 2 Pty Ltd (No 2) [2015] NSWSC 1594

Ezystay Systems Pty Ltd v Link 2 Pty Ltd (No 2) [2015] NSWSC 1594

The Court refused to include the Software in the permanent injunction because the proposed definition would leave the defendants uncertain as to what use was restrained, the defendants had used and modified their software for about three years, any springboard advantage from copying had long since passed, no loss was proved and a restraint requiring replacement of the defendants' software would be disproportionate. The Court nevertheless made permanent injunctive and supervised delivery up/deletion orders for the Business Manual, Elevator Take, Systems Manual, Software Manual and derived materials because the defendants had retained, copied and used the plaintiffs' materials and Mr...

Jurisdiction
Australia
Judgment Date
29 October 2015
Procedural Posture
Consequential Orders Following Judgment in Equity Proceedings Concerning Confidential Information, Injunctions, Delivery Up and Costs / Final Relief and Costs After Judgment Delivered on 10 August 2015
Outcome
Permanent injunction granted excluding the Software; supervised delivery up and deletion orders made; indemnity costs refused; defendants ordered to pay 85% of the plaintiffs' costs.
Legal Topics
['permanent Injunction Restraining Use or Copying of Confidential Business Materials' 'whether Injunction Should Extend to Software Modified After Copying' 'delivery Up and Deletion of Electronic Files Under Supervised Regime' 'indemnity Costs and Reduction of Costs for Unsuccessful Claims']
['equity' 'confidential Information' 'injunctions' 'costs'] ['permanent Injunction Restraining Use or Copying of Confidential Business Materials' 'whether Injunction Should Extend to Software Modified After Copying' 'delivery Up and Deletion of Electronic Files Under Supervised Regime' 'indemnity Costs and Reduction of Costs for Unsuccessful Claims']

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Procedural Posture

Consequential Orders Following Judgment in Equity Proceedings Concerning Confidential Information, Injunctions, Delivery Up and Costs / Final Relief and Costs After Judgment Delivered on 10 August 2015

Legal Issues

  1. 1 ["Whether the permanent injunction should prohibit use and copying of the plaintiffs' Software as well as the Business Manual, Elevator Take, Systems Manual and Software Manual." 'Whether delivery up and deletion orders should be made for documents and electronic files retained by the defendants, and whether compliance should be supervised.' 'Whether the plaintiffs should receive indemnity costs, and whether their costs should be reduced because of the failure of the Trade Dress claim and abandonment of damages, compensation and account of profits claims.']

Ratio Decidendi

The Court refused to include the Software in the permanent injunction because the proposed definition would leave the defendants uncertain as to what use was restrained, the defendants had used and modified their software for about three years, any springboard advantage from copying had long since passed, no loss was proved and a restraint requiring replacement of the defendants' software would be disproportionate. The Court nevertheless made permanent injunctive and supervised delivery up/deletion orders for the Business Manual, Elevator Take, Systems Manual, Software Manual and derived materials because the defendants had retained, copied and used the plaintiffs' materials and Mr...

Court Disposition

Permanent injunction granted excluding the Software; supervised delivery up and deletion orders made; indemnity costs refused; defendants ordered to pay 85% of the plaintiffs' costs.

Orders

  • ['The defendants are permanently restrained from directly, or indirectly, using and/or copying the Business Manual, the Elevator Take, the Systems Manual and the Software Manual, and any copy thereof or document derived therefrom, including without limitation the "Books, Records, Materials and Documentation" as...