Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2004] FCA 1461

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2004] FCA 1461

Because Concrete succeeded on the material issues, its $33,000 plus costs Calderbank offer was reasonable, the respondents' $5,000,000 response was extravagant, and PDD and Mr Fares jointly conducted the unsuccessful defence with PDD effectively operating as Mr Fares' alter ego, both respondents were liable for Concrete's costs. Costs were ordered on a party and party basis up to and including 18 March 2004, and on an indemnity basis thereafter, including unresolved interlocutory proceedings.

Jurisdiction
Australia
Judgment Date
12 November 2004
Procedural Posture
Costs in Copyright Proceedings Involving Unjustifiable Threats and a Cross Claim for Copyright Relief / Costs Determined on the Papers After Final Hearing and Judgment
Outcome
Declaration of non-infringement made; respondents ordered to pay Concrete's costs on a party and party basis to 18 March 2004 and on an indemnity basis thereafter.
Legal Topics
['unjustifiable Threats Under the Copyright Act' 'calderbank Offer' 'indemnity Costs' 'party and Party Costs' 'cross Claim for Copyright Relief' 'implied Licence' 'non Infringement Declaration']
['copyright' 'civil Procedure' 'costs'] ['unjustifiable Threats Under the Copyright Act' 'calderbank Offer' 'indemnity Costs' 'party and Party Costs' 'cross Claim for Copyright Relief' 'implied Licence' 'non Infringement Declaration']

Case Brief

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Procedural Posture

Costs in Copyright Proceedings Involving Unjustifiable Threats and a Cross Claim for Copyright Relief / Costs Determined on the Papers After Final Hearing and Judgment

Legal Issues

  1. 1 ['Whether costs should be ordered against both respondents although only Parramatta Design & Developments Pty Ltd brought the cross-claim for copyright relief.' 'Whether Concrete Pty Ltd should receive indemnity costs after the expiry of its Calderbank offer.' 'Whether the costs of unresolved interlocutory applications should follow the principal costs orders.' "Whether a declaration of non-infringement should be made consequentially to the Court's findings."]

Ratio Decidendi

Because Concrete succeeded on the material issues, its $33,000 plus costs Calderbank offer was reasonable, the respondents' $5,000,000 response was extravagant, and PDD and Mr Fares jointly conducted the unsuccessful defence with PDD effectively operating as Mr Fares' alter ego, both respondents were liable for Concrete's costs. Costs were ordered on a party and party basis up to and including 18 March 2004, and on an indemnity basis thereafter, including unresolved interlocutory proceedings.

Court Disposition

Declaration of non-infringement made; respondents ordered to pay Concrete's costs on a party and party basis to 18 March 2004 and on an indemnity basis thereafter.

Orders

  • ['The applicant has not infringed any copyright of the first and/or second respondents in the architectural plans that accompanied Development Application No. 16-2000-103-1 to Port Stephens Council in respect of the property known as number 5 Laman Street Nelson Bay in the State of New South Wales or in any earlier...