PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd (No 2) [2018] FCA 2072

PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd (No 2) [2018] FCA 2072

The Court set off PVI's accepted pre-judgment interest entitlement of $153,261 against PKT's interest entitlement of $4,933 and ordered PKT to pay PVI $148,328 under s 51A. No order for costs was made because both sides enjoyed some success, the trade mark and contractual issues were inextricably intertwined, PKT's monetary recovery was small, PVI's recovery was larger but it was not shown that its recoverable costs were as substantial as asserted, and the interests of justice were best served by each party bearing its or his own costs. Indemnity costs were refused because, despite PVI's first Calderbank offer being reasonable, PKT did not act unreasonably in failing to accept the offers...

Jurisdiction
Australia
Judgment Date
13 December 2018
Procedural Posture
Intellectual Property, Trade Marks / Determination of Pre Judgment Interest and Costs After Earlier Judgment and Remittal
Outcome
PKT was ordered to pay PVI $148,328 in pre-judgment interest, and each party was ordered to pay its or his own costs of the proceeding excluding appeal costs.
Legal Topics
['pre Judgment Interest Under S 51 A' 'costs Discretion' 'calderbank Offers' 'indemnity Costs' 'self Represented Litigant Costs' 'account of Profits' 'copyright Infringement Damages' 'remittal']
['intellectual Property' 'trade Marks' 'copyright' 'contract' 'civil Procedure' 'costs'] ['pre Judgment Interest Under S 51 A' 'costs Discretion' 'calderbank Offers' 'indemnity Costs' 'self Represented Litigant Costs' 'account of Profits' 'copyright Infringement Damages' 'remittal']

Case Brief

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Procedural Posture

Intellectual Property, Trade Marks / Determination of Pre Judgment Interest and Costs After Earlier Judgment and Remittal

Legal Issues

  1. 1 ['Whether PVI and PKT were entitled to pre-judgment interest and how the interest amounts should be set off.' 'Whether PKT, PVI or KFT should receive costs of the proceeding excluding the costs of the appeal from the orders of Edmonds J made on 17 December 2015.' 'Whether PVI should receive indemnity costs based on Calderbank offers.' 'Whether KFT should be made jointly and severally liable for damages awarded to PVI for copyright infringement.']

Ratio Decidendi

The Court set off PVI's accepted pre-judgment interest entitlement of $153,261 against PKT's interest entitlement of $4,933 and ordered PKT to pay PVI $148,328 under s 51A. No order for costs was made because both sides enjoyed some success, the trade mark and contractual issues were inextricably intertwined, PKT's monetary recovery was small, PVI's recovery was larger but it was not shown that its recoverable costs were as substantial as asserted, and the interests of justice were best served by each party bearing its or his own costs. Indemnity costs were refused because, despite PVI's first Calderbank offer being reasonable, PKT did not act unreasonably in failing to accept the offers...

Court Disposition

PKT was ordered to pay PVI $148,328 in pre-judgment interest, and each party was ordered to pay its or his own costs of the proceeding excluding appeal costs.

Orders

  • ['The applicant/first cross-respondent pay to the first respondent/cross-claimant the amount of $148,328 in interest awarded pursuant to s 51A of the Federal Court of Australia of Act 1976 (Cth).' 'Each party pay its or his own costs of this proceeding (excluding the costs of the appeal from the orders of Edmonds J...