Vehicle Monitoring Systems Pty Limited v SARB Management Group Pty Ltd trading as Database Consultants Australia (No 11) [2024] FCA 456

Vehicle Monitoring Systems Pty Limited v SARB Management Group Pty Ltd trading as Database Consultants Australia (No 11) [2024] FCA 456

As the respondents' Calderbank offers were at least as favourable as the outcome and the applicant's (VMS's) rejection was unreasonable given the clarity, timing, and substance of those offers, the respondents are entitled to indemnity costs from the respective dates of the offers (15 March 2021 for SARB, 19 March 2021 for CoM). The lump sum for costs is to be determined subsequently. The litigation funder Balance REV Ltd is jointly and severally liable for the costs ordered against VMS due to its funding and control of the litigation.

Jurisdiction
Australia
Judgment Date
03 May 2024
Procedural Posture
Costs Determination Following Trial and Appeal in a Patents Proceeding / Post Appellate Costs Ruling Following Remitter From the Full Court
Outcome
Varied; new costs orders made, setting aside previous cost orders, and imposing joint/several liability for respondent costs on a party/party and indemnity basis from relevant dates, including against the applicant's funder.
Legal Topics
['patents' 'costs' 'offers of Compromise' 'calderbank Offers' 'litigation Funding' 'indemnity Costs' 'infringement' 'invalidity']
['intellectual Property' 'civil Procedure'] ['patents' 'costs' 'offers of Compromise' 'calderbank Offers' 'litigation Funding' 'indemnity Costs' 'infringement' 'invalidity']

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Procedural Posture

Costs Determination Following Trial and Appeal in a Patents Proceeding / Post Appellate Costs Ruling Following Remitter From the Full Court

Legal Issues

  1. 1 ["Whether the costs orders made following trial should be varied following the Full Court's decision on appeal and remitter" "Whether Calderbank offers made by the respondents were effective and VMS's rejection unreasonable" 'Whether costs after the offers should be on an indemnity basis' 'Whether costs should be awarded against a litigation funder (non-party)']

Ratio Decidendi

As the respondents' Calderbank offers were at least as favourable as the outcome and the applicant's (VMS's) rejection was unreasonable given the clarity, timing, and substance of those offers, the respondents are entitled to indemnity costs from the respective dates of the offers (15 March 2021 for SARB, 19 March 2021 for CoM). The lump sum for costs is to be determined subsequently. The litigation funder Balance REV Ltd is jointly and severally liable for the costs ordered against VMS due to its funding and control of the litigation.

Court Disposition

Varied; new costs orders made, setting aside previous cost orders, and imposing joint/several liability for respondent costs on a party/party and indemnity basis from relevant dates, including against the applicant's funder.

Orders

  • ['The orders in paragraphs 16 and 17 made on 21 June 2023 be set aside.' "The applicant and Balance REV Ltd are jointly and severally liable for the first respondent's costs on a party and party basis of the Application prior to 15 March 2021." "The applicant and Balance REV Ltd are jointly and severally liable for...