Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia Ltd (Costs) [2013] NSWSC 1955

Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia Ltd (Costs) [2013] NSWSC 1955

The plaintiff was the successful party and achieved a better result than its 17 March 2011 Calderbank offer, which was an eminently reasonable offer unreasonably refused by the defendants. The defendants' offer excluded the Sanctum Locks and was not shown to have been unreasonably refused. No late account or adjustment issue concerning the Sanctum Application would be permitted. The plaintiff was entitled to ordinary costs up to 17 March 2011, indemnity costs from 18 March 2011, costs attributable to the aborted settlement motion and the instalment motion, damages of $488 for the Breakout Locks, and release of the remaining security.

Jurisdiction
Australia
Judgment Date
12 December 2013
Procedural Posture
Costs and Damages Determination in Equity Division Proceedings / Ex Tempore Judgment After Reasons in Breakout Barrier Release Systems Pty Ltd V Breakout Barrier Release Systems Australasia [2013] NSWSC 1815
Outcome
Declarations and orders made to reflect the conclusions reached in Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia [2013] NSWSC 1815, with damages for Breakout Locks determined at $488 and costs awarded to the plaintiff.
Legal Topics
['calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'costs Thrown Away' 'security for Costs' 'patent Licensing Agreement' 'breach of Fiduciary Duty' 'assignment of Patent Application' 'calculation of Damages for Breakout Locks']
['costs' 'damages' 'equity' 'intellectual Property Licensing'] ['calderbank Offers' 'indemnity Costs' 'ordinary Costs' 'costs Thrown Away' 'security for Costs' 'patent Licensing Agreement' 'breach of Fiduciary Duty' 'assignment of Patent Application' 'calculation of Damages for Breakout Locks']

Case Brief

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Procedural Posture

Costs and Damages Determination in Equity Division Proceedings / Ex Tempore Judgment After Reasons in Breakout Barrier Release Systems Pty Ltd V Breakout Barrier Release Systems Australasia [2013] NSWSC 1815

Legal Issues

  1. 1 ['What amount should be paid for damages in relation to Breakout Locks sold before and after termination of the Patent Licensing Agreement.' "Whether the plaintiff's 17 March 2011 Calderbank offer justified indemnity costs from that date." "Whether it was unreasonable for the plaintiff to refuse the defendants' 24 February 2011 Calderbank offer." "Whether the plaintiff should recover costs thrown away by the defendants' aborted motion asserting settlement." "Whether the plaintiff should recover costs of resisting the defendants' instalment application concerning the $40K costs award." 'Whether the Court should exercise its discretion to deprive the successful plaintiff of some costs because it did not succeed on every issue.' 'Whether the remaining security paid into Court should be released to the plaintiff.']

Ratio Decidendi

The plaintiff was the successful party and achieved a better result than its 17 March 2011 Calderbank offer, which was an eminently reasonable offer unreasonably refused by the defendants. The defendants' offer excluded the Sanctum Locks and was not shown to have been unreasonably refused. No late account or adjustment issue concerning the Sanctum Application would be permitted. The plaintiff was entitled to ordinary costs up to 17 March 2011, indemnity costs from 18 March 2011, costs attributable to the aborted settlement motion and the instalment motion, damages of $488 for the Breakout Locks, and release of the remaining security.

Court Disposition

Declarations and orders made to reflect the conclusions reached in Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia [2013] NSWSC 1815, with damages for Breakout Locks determined at $488 and costs awarded to the plaintiff.

Orders

  • ['The first defendant is to pay the plaintiff $488 for the Breakout Locks.' "The defendants are to pay the plaintiff's costs on the ordinary basis up to 17 March 2011." "The defendants are to pay the plaintiff's costs on an indemnity basis from 18 March 2011." "The plaintiff is entitled, as part of its costs, to...