Bitech Engineering v Garth Living Pty Ltd [2013] FCA 881

Bitech Engineering v Garth Living Pty Ltd [2013] FCA 881

The correct BH10 starting figure was 247 units, not 537 units, and with that correction the applicant's lost gross margin was $433,969 and interest to 30 August 2013 was $234,448, producing total damages of $668,417. The respondents were jointly and severally liable. Their failure to accept the applicant's clear and reasonable 29 June 2012 Calderbank offer, made when the respondents were well placed to assess the claim and offering a significant compromise, was unreasonable and imprudent, so indemnity costs were warranted from after 13 July 2012 except for the costs of Mr Langridge's supplementary report, which were to be on the party/party basis.

Jurisdiction
Australia
Judgment Date
30 August 2013
Procedural Posture
Patent Infringement Damages and Costs Proceedings / Final Assessment of Damages and Costs, Decided on the Papers
Outcome
Judgment for the applicant for damages, interest and costs; indemnity costs awarded from after 13 July 2012 except for specified supplementary expert report costs.
Legal Topics
['assessment of Damages for Patent Infringement' 'pre Judgment Interest' 'calderbank Offer' 'indemnity Costs' 'joint and Several Liability']
['intellectual Property' 'patents' 'civil Procedure' 'costs' 'damages'] ['assessment of Damages for Patent Infringement' 'pre Judgment Interest' 'calderbank Offer' 'indemnity Costs' 'joint and Several Liability']

Case Brief

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Procedural Posture

Patent Infringement Damages and Costs Proceedings / Final Assessment of Damages and Costs, Decided on the Papers

Legal Issues

  1. 1 ['What final amount of damages and pre-judgment interest should be awarded for infringement of Australian Patent No 621713.' 'Whether the BH10 model calculation should use 247 units rather than 537 units sold by Bunnings to members of the public.' 'Whether Garth Living and Bunnings should be jointly and severally liable for the damages, interest and costs.' "Whether the respondents' failure to accept the applicant's Calderbank offer made by letter dated 29 June 2012 was unreasonable and imprudent so as to justify indemnity costs from 14 July 2012." "Whether costs associated with Mr Langridge's supplementary report should be taxed on a party/party basis rather than an indemnity basis."]

Ratio Decidendi

The correct BH10 starting figure was 247 units, not 537 units, and with that correction the applicant's lost gross margin was $433,969 and interest to 30 August 2013 was $234,448, producing total damages of $668,417. The respondents were jointly and severally liable. Their failure to accept the applicant's clear and reasonable 29 June 2012 Calderbank offer, made when the respondents were well placed to assess the claim and offering a significant compromise, was unreasonable and imprudent, so indemnity costs were warranted from after 13 July 2012 except for the costs of Mr Langridge's supplementary report, which were to be on the party/party basis.

Court Disposition

Judgment for the applicant for damages, interest and costs; indemnity costs awarded from after 13 July 2012 except for specified supplementary expert report costs.

Orders

  • ['In NSD 1681 of 2006, Garth Living Pty Ltd pay Bitech Engineering $668,417, comprising $433,969 damages for infringement of Australian Patent No 621713 and $234,448 interest.' 'In NSD 43 of 2007, Bunnings Group Limited pay Bitech Engineering $668,417, comprising $433,969 damages for infringement of Australian...