JUDGMENT
1HIS HONOUR: Before me is an application by the plaintiff, Mrs Ehsman, for leave under s 237 of the Corporations Act 2001 (Cth) to bring proceedings on behalf of the fifth defendant company, Timentel, by filing and serving a further amended originating process and amended points of claim.
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The plaintiff's case
7The parties agree that Mr Brady and Mr and Mrs Ehsman came together in a business venture before Timentel was formed. Mrs Ehsman owned some patents for a split face wristwatch display, and she wished to exploit them commercially. Mr Brady had some marketing experience. There are disagreements about the commercial utility of Mrs Ehsman's patents, and as to the precise terms of their arrangements, which need not be resolved for present purposes. It is common ground that they respectively brought to the business of Timentel, when it was formed in 1998, the patents (such as they were) and a measure of marketing/commercial input.
8When Timentel was formed, Mrs Ehsman granted it a licence over her patents, for no consideration (although she received shares in the licensee entity). There is disputed evidence as to whether, as Mrs Ehsman asserts, she entered into the licence agreement in reliance on the assumption, encouraged by Mr Brady, that the licence would always be held by a company in which she would be a director and shareholder. The licensee's interest in the licence agreement was assignable. Mrs Ehsman claims, and the defendants deny, that it was a term and condition of the licence agreement that the licence would not be assigned by Timentel to a company in which Mrs Ehsman was not a shareholder and director.
9Initially the only shareholders were the Ehsmans and Mr Brady, and Mr Brady and Mrs Ehsman were the directors. Mr Brady's evidence is that he devoted very considerable time and effort, and expense, to travelling to Europe to negotiate for the commercial exploitation of the split face wristwatch display. According to him, the people he consulted in Europe told him that Mrs Ehsman's patents were just concepts and it would be necessary to work out the most efficacious interior wristwatch mechanisms to support the split face. That is disputed by Mrs Ehsman. But it is clear enough that Mr Brady did do some amount of developmental/marketing work in Europe, the cost of which was shared or partly shared with the Ehsmans.
10Mr Brady's evidence is that he came up with the idea of having movements in each half of the split face watch case for the forward and return hand movements, all controlled by an electronic integrated circuit, and that Mr Claude Ray, an experienced watchmaker, carried out the necessary design work. The eventual product, which he called a "hinged electronic watch", was based on ideas that were fundamentally different, he said, from Mrs Ehsman's patents. These matters are contested.
2007-03-04
18:39:57
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3 answers
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asked by
zzz_cool_blue
1