Tramanco Pty Ltd v BPW Transpec Pty Ltd (No 2) [2013] FCA 170

Tramanco Pty Ltd v BPW Transpec Pty Ltd (No 2) [2013] FCA 170

BPW was entitled to party-and-party costs of the proceedings, including the inventiveness issue, because it was the successful party and had not acted unreasonably in raising inventiveness, which would probably have succeeded if decided. Indemnity costs were refused because, although the 20 July 2009 offer was more favourable to Tramanco than the outcome, the proposed royalty-free licence to BPW and Haldex was ambiguous and required further investigation, making the letter more a basis for further negotiation than a firm offer; therefore Tramanco's refusal was not unreasonable.

Jurisdiction
Australia
Judgment Date
06 March 2013
Procedural Posture
Costs in Patent Infringement and Revocation Proceedings / Determined on the Papers After Judgment
Outcome
The applicant was ordered to pay the respondent's costs of the proceedings, including reserved costs, on a party-and-party basis; no order was made as to costs incurred on the question of costs.
Legal Topics
['party and Party Costs' 'indemnity Costs' 'calderbank Letter' 'patent Validity' 'novelty' 'inventiveness' 'patents Act 1990 (cth) S 40']
['costs' 'patents'] ['party and Party Costs' 'indemnity Costs' 'calderbank Letter' 'patent Validity' 'novelty' 'inventiveness' 'patents Act 1990 (cth) S 40']

Case Brief

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Procedural Posture

Costs in Patent Infringement and Revocation Proceedings / Determined on the Papers After Judgment

Legal Issues

  1. 1 ['Whether BPW should recover costs incurred in connection with the issue of inventiveness even though that issue was not ultimately decided.' "Whether Tramanco's refusal of BPW's 20 July 2009 settlement offer was unreasonable or imprudent so as to justify indemnity costs." "Whether BPW's costs should be taxed on a party-and-party basis or an indemnity basis."]

Ratio Decidendi

BPW was entitled to party-and-party costs of the proceedings, including the inventiveness issue, because it was the successful party and had not acted unreasonably in raising inventiveness, which would probably have succeeded if decided. Indemnity costs were refused because, although the 20 July 2009 offer was more favourable to Tramanco than the outcome, the proposed royalty-free licence to BPW and Haldex was ambiguous and required further investigation, making the letter more a basis for further negotiation than a firm offer; therefore Tramanco's refusal was not unreasonable.

Court Disposition

The applicant was ordered to pay the respondent's costs of the proceedings, including reserved costs, on a party-and-party basis; no order was made as to costs incurred on the question of costs.

Orders

  • ["The applicant pay the respondent's costs of the proceedings, including reserved costs." 'There be no order as to costs incurred on the question of costs.']