Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823

Barrett Property Group Ltd v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823

The respondents' deliberate and sustained attempt to mislead the court on the issues of derivation and copying, through false affidavit and oral evidence from key witnesses, constitutes special circumstances justifying indemnity costs for 50% of preparation and trial periods from April 2006 onwards. The complexity and expense incurred, coupled with such misconduct and the applicants’ entitlement to the benefit of their judgment, warrant taxing and paying costs forthwith. However, as an appeal is pending, the operation of these orders is stayed until the application for leave to appeal and any appeal is resolved.

Jurisdiction
Australia
Judgment Date
23 November 2007
Procedural Posture
Application for Costs in Intellectual Property Proceeding / Post Judgment, Costs Determination
Outcome
Respondents to pay applicants’ standard and indemnity costs as specified, to be taxed and paid forthwith with stay pending appeal.
Legal Topics
['costs' 'indemnity Costs' 'copyright Infringement' 'procedure for Taxation of Costs']
['intellectual Property' 'civil Procedure'] ['costs' 'indemnity Costs' 'copyright Infringement' 'procedure for Taxation of Costs']

Case Brief

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Procedural Posture

Application for Costs in Intellectual Property Proceeding / Post Judgment, Costs Determination

Legal Issues

  1. 1 ['Whether indemnity costs should be awarded due to misconduct and undue prolongation of defence by respondents' 'Whether costs should be taxed and paid forthwith, departing from general rule under Federal Court Rules']

Ratio Decidendi

The respondents' deliberate and sustained attempt to mislead the court on the issues of derivation and copying, through false affidavit and oral evidence from key witnesses, constitutes special circumstances justifying indemnity costs for 50% of preparation and trial periods from April 2006 onwards. The complexity and expense incurred, coupled with such misconduct and the applicants’ entitlement to the benefit of their judgment, warrant taxing and paying costs forthwith. However, as an appeal is pending, the operation of these orders is stayed until the application for leave to appeal and any appeal is resolved.

Court Disposition

Respondents to pay applicants’ standard and indemnity costs as specified, to be taxed and paid forthwith with stay pending appeal.

Orders

  • ["Respondents to pay the applicants' costs to be taxed and paid forthwith." '50% of trial preparation from 10 April 2006 and the trial to be taxed on an indemnity basis.' 'Respondents to pay costs on the motion for special costs orders, to be taxed and paid forthwith.' 'Orders 1 and 3 stayed pending disposition of...