Ingersoll-Rand (Aust) Ltd v Industrial Rollformers Pty Ltd [2000] NSWSC 178

New South Wales Supreme Court

CITATION : Ingersoll-Rand (Aust) Ltd v Industrial Rollformers Pty Ltd [2000] NSWSC 178 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4997/99 HEARING DATE(S) : 14 & 15 February 2000 JUDGMENT DATE : 15 February 2000

Ingersoll-Rand (Australia) Limited (P) PARTIES : Industrial Rollformers Pty Limited (D1) Strata Control Pty Limited (D2) JUDGMENT OF : Hamilton J

COUNSEL : F M Douglas QC and D T Kell (P) D E Grieve QC and F P Donohoe (D1 & 2) SOLICITORS : Baker & McKenzie (P) John Spence & Associates (D1 & 2) CATCHWORDS : EQUITY [378] - Equitable remedies - Injunctions - Practice and procedure - Other matters - Costs - Whether successful applicant for interlocutory injunction should be deprived of costs where earlier offer made by it on basis that each party pay own costs - Usual order in favour of successful applicant. CASES CITED : Ingersoll-Rand (Aust) Ltd v Industrial Rollformers Pty Ltd [2000] NSWSC 177 DECISION : That the costs of the successful application for interlocutory injunction should be the plaintiff's costs in the proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 15 FEBRUARY 2000

4997/99 INGERSOLL-RAND (AUSTRALIA) LTD v INDUSTRIAL ROLLFORMERS PTY LIMITED & ANOR

JUDGMENT - RE SHORT MINUTES OF ORDER AND COSTS

HIS HONOUR: 1 In this matter I delivered a substantive judgment on the application for interlocutory injunction on Friday, 11 February 2000: Ingersoll-Rand (Australia) Ltd v Industrial Rollformers Pty Ltd [2000] NSWSC 177 ("my judgment"). The matter has been before me again yesterday and today for debate upon short minutes of order that have been brought in as to the precise form of the injunctive relief and ancillary matters. 2 As to the former, Mr Sindone, of counsel for the defendants, yesterday put to me that I ought to incorporate a territorial restriction in the injunction against manufacture of the split sets to the end that there should be excepted from the injunctive relief (as well as the various other exceptions that appear on the face of the orders) the manufacture of friction bolts in Australia by the defendants for the purpose of their sale overseas. This was put on the basis that the contractual restraint restrains manufacture worldwide, and that at least this aspect of the contractual restraint would not be upheld at final hearing. Furthermore, it was said that, by reason of the terms of prayer 11 of the summons and the corresponding prayer in the notice of motion, the plaintiff in terms sought restraint only of the defendants' "manufacturing or marketing of split sets in competition with the plaintiff in Australia". The plaintiff has not at any stage up to now sought an amendment of that prayer, so Mr Sindone said the relief could and should not go beyond the prayer. Assuming the correctness of that proposition, Mr Sindone's argument depends upon a conjunctive interpretation of the words that I have set out. That is, he says that, on their true interpretation, both the manufacturing on the one hand, and the marketing or selling on the other, must take place within Australia to fall within the prayer, and that if split sets or other friction pins are manufactured in Australia for sale overseas, then they are outside the unamended prayer. 3 I do not agree with Mr Sindone concerning the interpretation of the prayer. In my view the prayer should be read disjunctively as to all its elements and should be read as including a prayer for an injunction restraining the defendants in all circumstances from "manufacturing ... in Australia". In any event, I do not think there is any evidentiary basis for the exception that Mr Sindone has claimed. He expressly said that his application to limit the injunctive relief in the fashion claimed was based upon the plaintiff's evidence already given on the application for injunction. There is no evidence of an intention or plan on the part of the defendants to manufacture within and sell outside Australia, so there is no concrete situation against which the appropriateness or inappropriateness of the sought exception can be judged. All that there is before me is a statement from the bar table by Mr Sindone that the defendants "may wish to manufacture for sale overseas" during the restricted term of the interlocutory relief, which at all times must be remembered expires on 29 May 2000. Bearing in mind the lack of any evidence that the defendants will in fact be restrained from doing anything, or what they will be restrained from doing, by lack of the exception, I do not think it appropriate to modify the injunction in this fashion and the application so to do is refused. 4 Last week there was some argument before me on the question of the costs of the application and that argument has been renewed before me this morning. I indicated during the course of argument that I was minded to make the usual order for costs upon a successful plaintiff's application, namely, that the plaintiff's costs of the interlocutory application be the plaintiff's costs in the proceedings. Mr Sindone at one stage put to me that the order ought simply be costs in the cause which, at one stage, he contended was the usual order in favour of a successful plaintiff in a contested application for interlocutory relief, but that submission he subsequently withdrew. 5 The submission with which he persisted was that on 8 February 2000, Mr Douglas, of Queen's Counsel for the plaintiff, brought forward draft short minutes generally similar to the order that I have ultimately made. The main difference was some refinement of language for purposes of definition and to allow for the fact that further events have occurred since orders substantially in this form were made by Simos J at an earlier stage on a temporary basis. Mr Douglas made an open offer by reference to those short minutes, and those short minutes, as part of the offer, included an order that the costs of the interlocutory application be costs in the cause. However, matters moved on after that. Mr Grieve, of Queen's Counsel for the defendants, initially after the offer was made, said that the matter continued to be contested. Then there were further discussions as a result of which Mr Grieve indicated that the offer in the minutes was acceptable, but upon the basis of the inclusion of further relaxations of the restraints by way of inclusion of a paragraph (ab) and the increase of the amount of one exception from $100,000 per month of manufacture to $250,000 per month, as set out in more detail in my judgment. However, as is apparent from my judgment, the hearing then continued further on the basis that the plaintiff would not accept orders including those modifications. The defendants maintained their offer inclusive of those modifications. The contest thereupon continued on the question of whether both or one of those modifications should be included in the orders I should make. On that question the defendants failed, and, as I have said, the orders were ultimately made substantially in the form offered by the plaintiff through Mr Douglas on 9 February 2000. Mr Sindone says that after the minutes were brought forward, the contest in effect was taken by both parties to continue on the basis that the costs of the proceedings be costs in the cause, and that the plaintiff is not now entitled to contend otherwise because it did not formally say at the time that, on the matter continuing, its offer was modified by withdrawal of the offer as to costs. 6 It is clear to me that the intent of the plaintiff's offer was that its concession as to costs in the matter was intended to operate at the time that the offer was made and on the basis that it was accepted. The offer was rejected, and the contest thereafter continued, resulting in the success of the plaintiff on the contested issues. The plaintiff ought not in those circumstances be regarded as bound by its offer as to costs. In my view the usual order as to costs ought now be made. The order of the Court as to costs will therefore be that the costs of the plaintiff's application for interlocutory relief be the plaintiff's costs in the proceedings.