Acohs Pty Ltd v Ucorp Pty Ltd (No 6) [2013] FCA 1345

Acohs Pty Ltd v Ucorp Pty Ltd (No 6) [2013] FCA 1345

Although the applicant ultimately secured permanent injunctions restraining reproduction of its authored MSDSs, it failed on several discrete causes of action and copyright allegations, and its case was altered late by amendment. The applicant was therefore required to pay the respondents' costs incurred only in resisting the failed claims and costs thrown away by the amendment. After excluding those categories and previous costs orders, the respondents were ordered to pay only two-thirds of the applicant's remaining costs because the applicant's success was limited to MSDSs wholly authored in-house and did not justify recovery of all remaining costs.

Jurisdiction
Australia
Judgment Date
17 December 2013
Procedural Posture
Costs in Intellectual Property and Trade Practices Proceeding / Post Judgment Costs Determination Following Trial, Appeal and Remedies Judgment
Outcome
Costs apportioned; applicant to pay specified respondents' costs and costs thrown away by amendment; respondents to pay two-thirds of applicant's remaining costs after specified deductions and previous costs orders.
Legal Topics
['apportionment of Costs' 'costs Thrown Away by Amendment' 'mixed Success' 'copyright in Material Safety Data Sheets' 'html Source Code' 'trade Practices Act Claims']
['costs' 'intellectual Property' 'copyright' 'trade Marks' 'passing Off' 'trade Practices'] ['apportionment of Costs' 'costs Thrown Away by Amendment' 'mixed Success' 'copyright in Material Safety Data Sheets' 'html Source Code' 'trade Practices Act Claims']

Case Brief

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Procedural Posture

Costs in Intellectual Property and Trade Practices Proceeding / Post Judgment Costs Determination Following Trial, Appeal and Remedies Judgment

Legal Issues

  1. 1 ['Whether costs should be apportioned where the applicant ultimately obtained permanent injunctions but failed on several causes of action and aspects of its copyright case.' "Whether the applicant should pay the respondents' costs of resisting abandoned or unsuccessful claims, including Trade Practices Act, passing off, trade mark, HTML source code, Blackwoods compilation and Blackwoods reproduction allegations." "Whether the respondents should pay all or only a proportion of the applicant's remaining costs after exclusions." 'Whether costs thrown away by the late amendment of the Sixth Further Amended Statement of Claim should be paid by the applicant.']

Ratio Decidendi

Although the applicant ultimately secured permanent injunctions restraining reproduction of its authored MSDSs, it failed on several discrete causes of action and copyright allegations, and its case was altered late by amendment. The applicant was therefore required to pay the respondents' costs incurred only in resisting the failed claims and costs thrown away by the amendment. After excluding those categories and previous costs orders, the respondents were ordered to pay only two-thirds of the applicant's remaining costs because the applicant's success was limited to MSDSs wholly authored in-house and did not justify recovery of all remaining costs.

Court Disposition

Costs apportioned; applicant to pay specified respondents' costs and costs thrown away by amendment; respondents to pay two-thirds of applicant's remaining costs after specified deductions and previous costs orders.

Orders

  • ['Order 1 made on 2 September 2010 be amended by deleting "Of the respondents\' costs referred to in Order 2 made on 10 June 2010, those that were" and substituting "The applicant pay the respondents\' costs", and by inserting before "be taxed" the words "such costs to".' 'The applicant pay the respondents\' costs...