Eastcoast Underground P/L v. Insituform Technologies Inc [1994] FCA 779

JUDGMENT NO. suede wat

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 3366 of 1994

GENERAL DIVISION )

BETWEEN:

EASTCOAST UNDERGROUND PTY LTD Applicant

AND: INSITUFORM TECHNOLOGIES INC

Respondent

RECEIVED

CORAM: LINDGREN J PLACE: SYDNEY . 2 5 OCT 1994 DATE: 17 OCTOBER 1994 EAAL COURT OF

PRINCIPAL REGISTRY

NS FOR D

HIS HONOUR: In this matter application is made by the applicant by notice of motion dated 12 October 1994 for an order that a certain notice to produce filed by the respondent be set aside. The notice to produce was filed on 28 September 1994 and calls upon the applicant to produce documents described in eight categories. The applicant no longer seeks to have the notice to produce set aside in so far as it comprises paragraphs 7 and 8. Accordingly, the argument has proceeded this morning on the footing that the motion relates to paragraphs 1 to 6 only.

By the substantive application the applicant applies for an order setting aside a statutory demand under paragraph 459E of the

Corporations Law. The basis of the application is that there is an "offsetting claim" to use the language of s. 459H (1) (b).

neds

The statutory demand itself was served on 4 July 1994 and is in respect of a total amount of $209,695.52. According to that statutory demand the applicant is indebted to the respondent in that amount for goods supplied. There are invoices in evidence issued by the respondent to the present applicant for amounts which, I am informed, total the equivalent in US dollars of that

sum.

The alleged offsetting claim is said to arise in various ways. The first is under the Trade Practices Act 1974 (Cth) s. 52. The nature of that offsetting claim is deposed to in an affidavit of John Thomas Atkins, the managing director of the applicant, sworn 22 July 1994. Mr Atkins says that the applicant was assured that it would have an exclusive licence in respect of the use of a pipe-relining technology in Australia and New Zealand. Secondly, it is said that there was a representation made on behalf of the respondent that "Rocla" would not be in competition with the applicant. Thirdly, it is said that it was represented that certain patents were on foot in respect of the technology, the protection of which would enure to the benefit of the applicant. What is alleged is that all these representations were false. This is said to constitute misleading and deceptive conduct on behalf of the respondent which induced the applicant to enter into a certain agreement for the grant of an "exclusive licence «-. to use a technology for a pipe-relining known as the insituform process in Australia and New Zealand" (see below).