Dialog Pty Ltd v Addease Pty Ltd [2003] FCA 1359

FEDERAL COURT OF AUSTRALIA

Dialog Pty Ltd v Addease Pty Ltd [2003] FCA 1359 TRADE PRACTICES - misleading and deceptive conduct - sale of business - licences - value of information technology products and intellectual property transferred during sale - Trade Practices Act 1974 (Cth) s 52, s 87 CONTRACT - sale of business - whether liabilities transferred with business - obligation to perform labour hire contracts - cross-claim - restitution - unjust enrichment Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Pitman v Pantzer (2001) 115 FCR 361 Riches v Hogben [1985] 2 QdR 292; affirmed on appeal (1986) 1 QdR 315 Giumelli v Giumelli (1999) 196 CLR 101 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 DIALOG PTY LTD ACN 010 089 175 v ADDEASE PTY LTD ACN 007 212 768, AND GEORGE MICHAEL MIHAILIDES Q235 OF 2001 COOPER J BRISBANE (HEARD IN BRISBANE AND MELBOURNE) 26 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q235 OF 2001

BETWEEN: DIALOG PTY LTD ACN 010 089 175

APPLICANT

AND: ADDEASE PTY LTD ACN 007 212 768

FIRST RESPONDENT

GEORGE MICHAEL MIHAILIDES

SECOND RESPONDENT

ADDEASE PTY LTD ACN 007 212 768

FIRST CROSS CLAIMANT

GEORGE MICHAEL MIHAILIDES

SECOND CROSS CLAIMANT

DIAGLOG PTY LTD ACN 010 089 175

CROSS RESPONDENT

JUDGE: COOPER J

DATE OF ORDER: 26 NOVEMBER 2003

WHERE MADE: BRISBANE (VIA VIDEO LINK TO MELBOURNE)

ON THE APPLICANT'S CLAIM THE COURT ORDERS THAT: 1. The claim against the respondents be dismissed and judgment be entered in favour of the respondents. 2. The applicant pay the respondents their costs of and incidental to the claim, including reserved costs if any, to be taxed if not agreed. ON THE CROSS-CLAIM THE COURT DECLARES THAT: 3. The cross-respondent is indebted to the first cross-claimant in the sum of $279 816.36 in respect of the claims made in paras 22, 23 and 26 of the Cross-claim. 4. The cross-respondent is entitled to set off against such indebtedness credits due to it by the first cross-claimant in the sum of $98 813.35. 5. The first cross-claimant is entitled to payment of commission by the cross-respondent under cl 2 of the Commission Agreement of 22 December 1999. 6. The second cross-claimant is presently entitled to be paid the sum of $300 000 under a Contract of Employment of 22 December 1999 between the second cross-claimant and the cross-respondent and is entitled to payment of a further sum of $150 000 under the said Contract of Employment which further sum falls due for payment to the second cross-respondent on 1 December 2003. ON THE CROSS-CLAIM THE COURT ORDERS THAT: 7. Judgment be entered in favour of the first cross-claimant against the cross-respondent in the sum of $181 003.01 being the balance due in favour of the first cross-claimant after set off of credits due. 8. All necessary enquiries and accounts be taken by the Queensland District Registrar as to the commission due under cl 2 of the Commission Agreement of 22 December 1999 in respect of licence and maintenance fees as defined by cl 1(d) at the rates provided in cl 1(b) of that agreement; and that upon the striking of such an account, judgment be entered in favour the first cross-claimant against the cross-respondent in such amount as is found due and owing. 9. Judgment be entered in favour of the second cross-claimant in an amount of $300 000 as money due and owing under the Contract of Employment of 22 December 1999 between the second cross-claimant and the cross-respondent. 10. In default of payment on 1 December 2003 of the sum of $150 000 then falling due and owing by the cross-respondent to the second cross-claimant, judgment be entered in favour of the second cross-claimant against the cross-respondent in the sum of $150 000, proof of such default being made by affidavit of the second cross-claimant's solicitor. 11. The cross-respondent pay the first and second cross-claimants costs of and incidental to the cross-claim, including reserved costs if any, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.