PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd [2019] FCAFC 216

PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd [2019] FCAFC 216

The appeal was allowed in part: PVI's reliance on expectation damages was abandoned and could not be revived; reliance damages as quantified and discounted by 30% for lost opportunity (reflecting the chance of recouping expenditure) were justified and in line with accepted principles. Only a portion of claimed mitigation costs was allowed. On trade marks, use in Australia for export is established under s 228, entitling Fairlight to an account of all profits worldwide. There was no error in denying additional liability for KFT regarding copyright infringement as there was no evidence of KFT authorisation.

Parties
Appellant / First Cross Respondent: PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd); Respondent / Cross Appellant: Peter Vogel Instruments Pty Ltd; Second Cross Respondent: KFT Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
05 December 2019
Procedural Posture
Appeal and Cross Appeal / Judgment After Hearing Appeal and Cross Appeal From Remittal Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed
Legal Topics
Damages for Breach of Contract, Reliance Damages, Expectation Damages, Mitigation of Damages, Trade Mark Infringement, Account of Profits, Copyright Infringement, Joint Liability
Intellectual Property Contract Damages for Breach of Contract Reliance Damages Expectation Damages Mitigation of Damages Trade Mark Infringement Account of Profits +2 more

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Parties

PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd)

Appellant / First Cross Respondent

Peter Vogel Instruments Pty Ltd

Respondent / Cross Appellant

KFT Investments Pty Ltd

Second Cross Respondent

Procedural Posture

Appeal and Cross Appeal / Judgment After Hearing Appeal and Cross Appeal From Remittal Judgment

Legal Issues

  1. 1 Whether expectation damages for breach of contract were available or had been abandoned by forensic election
  2. 2 Whether reliance damages could be claimed as an alternative to expectation damages
  3. 3 Proper quantification of reliance damages and onus of proof regarding recoupment

Ratio Decidendi

The appeal was allowed in part: PVI's reliance on expectation damages was abandoned and could not be revived; reliance damages as quantified and discounted by 30% for lost opportunity (reflecting the chance of recouping expenditure) were justified and in line with accepted principles. Only a portion of claimed mitigation costs was allowed. On trade marks, use in Australia for export is established under s 228, entitling Fairlight to an account of all profits worldwide. There was no error in denying additional liability for KFT regarding copyright infringement as there was no evidence of KFT authorisation.

Court Disposition

Appeal allowed in part; cross-appeal dismissed

Orders

  • Order 1 of the primary judge varied: judgment for PVI against Fairlight in the amount of $366,158.50 (exclusive of interest)
  • PVI's additional mitigation damages reduced from $36,566 to $18,768.50