JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (No. 2) [2005] FCA 1490

JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (No. 2) [2005] FCA 1490

Balancing the respondent's overall success, the applicant's success on some substantive issues, the normal practice concerning costs of patent amendments, the two settlement offers, and the substantial amendments over time to the particulars of invalidity, the Court exercised its discretion to order the applicant to pay 85% of the respondent's taxed costs, including reserved costs, rather than full or indemnity costs.

Jurisdiction
Australia
Judgment Date
21 October 2005
Procedural Posture
Ruling on Costs / After Decision on the Claim and Cross Claim; Short Minutes Agreed Except as to Costs and a Stay Sought by the Applicant
Outcome
The applicant was ordered to pay 85% of the respondent's taxed costs, including reserved costs.
Legal Topics
['costs Where Each Party Had a Measure of Success' 'patent Amendment Costs' 'indemnity Costs' 'calderbank Offers' 'taxed Costs']
['practice and Procedure' 'costs' 'intellectual Property'] ['costs Where Each Party Had a Measure of Success' 'patent Amendment Costs' 'indemnity Costs' 'calderbank Offers' 'taxed Costs']

Case Brief

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Procedural Posture

Ruling on Costs / After Decision on the Claim and Cross Claim; Short Minutes Agreed Except as to Costs and a Stay Sought by the Applicant

Legal Issues

  1. 1 ['What costs order should be made where the respondent was successful overall but the applicant succeeded on a number of substantive issues.' "Whether the respondent's costs should be assessed on an indemnity basis because of two settlement offers described as Calderbank offers." "Whether the applicant should pay the respondent's costs subject to a reduction reflecting mixed success and amendments to particulars of invalidity."]

Ratio Decidendi

Balancing the respondent's overall success, the applicant's success on some substantive issues, the normal practice concerning costs of patent amendments, the two settlement offers, and the substantial amendments over time to the particulars of invalidity, the Court exercised its discretion to order the applicant to pay 85% of the respondent's taxed costs, including reserved costs, rather than full or indemnity costs.

Court Disposition

The applicant was ordered to pay 85% of the respondent's taxed costs, including reserved costs.

Orders

  • ["The applicant pay to the respondent 85% of the respondent's taxed costs, including reserved costs."]