Austral Masonry (NSW) Pty Ltd v Cementech Pty Limited [2014] FCAFC 72

Austral Masonry (NSW) Pty Ltd v Cementech Pty Limited [2014] FCAFC 72

Clause 9.2(b) of the Licence Agreement imposes an obligation on Austral Masonry to pay Cementech half of the costs and disbursements reasonably incurred in prosecuting proceedings commenced during the term, and this obligation survives expiry of the agreement for proceedings so commenced, irrespective of whether an Infringement Notice was served. The amended declaration appropriately reflects this construction and is not hypothetical.

Jurisdiction
Australia
Judgment Date
17 June 2014
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed except for amendment to declaration
Legal Topics
['contract Interpretation' 'survival of Contractual Clauses' 'patent Litigation Costs Sharing' 'declarations' 'appeals']
['contracts' 'intellectual Property' 'civil Procedure'] ['contract Interpretation' 'survival of Contractual Clauses' 'patent Litigation Costs Sharing' 'declarations' 'appeals']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether cl 9.2(b) of the Exclusive Intellectual Property Licence Agreement obliges Austral to contribute to Cementech's litigation costs without a prior Infringement Notice" 'Whether the obligation to contribute costs survives expiry of the Licence Agreement' 'Whether the declaration made by the primary judge relates to hypothetical matters or constitutes an advisory opinion']

Ratio Decidendi

Clause 9.2(b) of the Licence Agreement imposes an obligation on Austral Masonry to pay Cementech half of the costs and disbursements reasonably incurred in prosecuting proceedings commenced during the term, and this obligation survives expiry of the agreement for proceedings so commenced, irrespective of whether an Infringement Notice was served. The amended declaration appropriately reflects this construction and is not hypothetical.

Court Disposition

Appeal dismissed except for amendment to declaration

Orders

  • ['Declaration amended to state Austral is obliged to pay Cementech one half of the costs and disbursements reasonably incurred by Cementech in bringing and prosecuting the proceedings as and when incurred' 'Appeal otherwise dismissed' "Appellant to pay respondents' costs of the appeal as agreed or taxed"]