PKT Technologies Pty Ltd (formerly known as Fairlight.au Pty Ltd) v Peter Vogel Instruments Pty Ltd (No 2) [2020] FCAFC 46

PKT Technologies Pty Ltd (formerly known as Fairlight.au Pty Ltd) v Peter Vogel Instruments Pty Ltd (No 2) [2020] FCAFC 46

Because Fairlight had some moderate success on the appeal, PVI's cross-appeal failed and was the dominant part of the proceeding, but detailed apportionment between the appeal, cross-appeal and issues would likely cause further disputes, the interests of justice were best served by a pragmatic order that PVI pay 35% of Fairlight's costs of the appeal and cross-appeal. The Court could not revisit pre-judgment interest because the 13 December 2018 judgment dealing with that interest was not appealed and the appellate jurisdiction was not enlivened in respect of it.

Jurisdiction
Australia
Judgment Date
19 March 2020
Procedural Posture
Costs of Appeal and Cross Appeal; Pre Judgment Interest Issue / Full Court Determination After Appeal Judgment
Outcome
PVI ordered to pay 35% of Fairlight's costs of the proceeding; no adjustment made to pre-judgment interest.
Legal Topics
['exercise of Costs Discretion' 'apportionment of Costs' 'cross Appeal Costs' 'pre Judgment Interest' 'trade Marks' 'copyright']
['costs' 'appellate Procedure' 'intellectual Property'] ['exercise of Costs Discretion' 'apportionment of Costs' 'cross Appeal Costs' 'pre Judgment Interest' 'trade Marks' 'copyright']

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Procedural Posture

Costs of Appeal and Cross Appeal; Pre Judgment Interest Issue / Full Court Determination After Appeal Judgment

Legal Issues

  1. 1 ['What costs order should be made following the appeal and cross-appeal.' 'Whether costs should be apportioned between the appeal, cross-appeal and issues in the appeal.' 'Whether the Court could revisit pre-judgment interest awarded in the judgment of 13 December 2018.']

Ratio Decidendi

Because Fairlight had some moderate success on the appeal, PVI's cross-appeal failed and was the dominant part of the proceeding, but detailed apportionment between the appeal, cross-appeal and issues would likely cause further disputes, the interests of justice were best served by a pragmatic order that PVI pay 35% of Fairlight's costs of the appeal and cross-appeal. The Court could not revisit pre-judgment interest because the 13 December 2018 judgment dealing with that interest was not appealed and the appellate jurisdiction was not enlivened in respect of it.

Court Disposition

PVI ordered to pay 35% of Fairlight's costs of the proceeding; no adjustment made to pre-judgment interest.

Orders

  • ["The respondent/cross-appellant is to pay 35% of the appellant/first cross-respondent and second cross-respondent's costs of the proceeding (i.e. the appeal and the cross-appeal)."]