Software AG & Ors v Commonwealth of Australia & Ors [1996] FCA 1188

Software AG & Ors v Commonwealth of Australia & Ors [1996] FCA 1188

The Court substantially accepted the respondents' evidence that pre-service work following the letter of demand could be recoverable as party and party costs of and incidental to the proceedings, but discounted the estimate because of limited detail, contrary solicitor evidence and the possibility that some work related to commercial resolution rather than the proceeding. Because the respondents sought only costs of work actually done to date and future discovery and inspection costs were uncertain, security should not include discovery or inspection. The appropriate staged security was therefore $40,000, not $50,000 or $20,000.

Jurisdiction
Australia
Judgment Date
19 February 1996
Procedural Posture
Proceedings Involving Alleged Infringements of Copyright and Alleged Breaches of Contract; Amended Notice of Motion Seeking Security for Costs / Security for Costs Motion
Outcome
Respondents' amended notice of motion for security for costs substantially allowed.
Legal Topics
['security for Costs' 'party and Party Costs' 'costs of and Incidental to Proceedings' 'discovery and Inspection' 'foreign Corporations']
['civil Procedure' 'copyright' 'contract'] ['security for Costs' 'party and Party Costs' 'costs of and Incidental to Proceedings' 'discovery and Inspection' 'foreign Corporations']

Case Brief

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Procedural Posture

Proceedings Involving Alleged Infringements of Copyright and Alleged Breaches of Contract; Amended Notice of Motion Seeking Security for Costs / Security for Costs Motion

Legal Issues

  1. 1 ['What amount of security for costs should be provided at this stage of the proceedings.' 'Whether work done after the letter of demand but before service of the application should be allowed in assessing security for costs.' 'Whether security at this stage should include costs likely to be incurred in discovery and inspection.']

Ratio Decidendi

The Court substantially accepted the respondents' evidence that pre-service work following the letter of demand could be recoverable as party and party costs of and incidental to the proceedings, but discounted the estimate because of limited detail, contrary solicitor evidence and the possibility that some work related to commercial resolution rather than the proceeding. Because the respondents sought only costs of work actually done to date and future discovery and inspection costs were uncertain, security should not include discovery or inspection. The appropriate staged security was therefore $40,000, not $50,000 or $20,000.

Court Disposition

Respondents' amended notice of motion for security for costs substantially allowed.

Orders

  • ['The applicants are to provide security for costs in the sum of $40,000, substituted for the sum of $50,000 in orders 1 and 2 of the amended notice of motion.' 'The security does not include any allowance for discovery or inspection.' "The applicants are to pay the respondents' costs of the motion."]