Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 5) [2016] FCA 444

Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 5) [2016] FCA 444

Indemnity costs were awarded in respect of allegations as to prior use and secret use, as respondents' persisted in arguments with no proper basis and disregarded contemporaneous evidence and contrary testimony, causing undue prolongation and wasted costs. All respondents were made liable due to their active participation, benefits sought in the outcome, and use of the cross-claimant as an artificial entity to avoid consequences, warranting the interests of justice to order costs against them.

Parties
Applicant/cross Respondent: Australian Mud Company Pty Ltd; Applicant/cross Respondent: Reflex Instruments Asia Pacific Pty Ltd; Respondent/cross Claimant: Coretell Pty Ltd; Respondent: Mincrest Holdings Pty Ltd; Respondent: Nicky Kleyn; Respondent: Kleyn Investments Pty Ltd (trading as Camteq International Services)
Jurisdiction
Australia
Judgment Date
29 April 2016
Procedural Posture
Civil / Post Trial – Determination of Costs
Outcome
Indemnity costs awarded for claims relating to prior use and secret use; all respondents liable for cross-claim costs; otherwise, costs payable on party-party basis.
Legal Topics
Patents, Costs, Invalidity Grounds, Indemnity Costs, Party Liability
Intellectual Property Civil Procedure Patents Costs Invalidity Grounds Indemnity Costs Party Liability

Case Brief

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Parties

Australian Mud Company Pty Ltd

Applicant/cross Respondent

Reflex Instruments Asia Pacific Pty Ltd

Applicant/cross Respondent

Coretell Pty Ltd

Respondent/cross Claimant

Mincrest Holdings Pty Ltd

Respondent

Nicky Kleyn

Respondent

Kleyn Investments Pty Ltd (trading as Camteq International Services)

Respondent

Procedural Posture

Civil / Post Trial – Determination of Costs

Legal Issues

  1. 1 Whether indemnity costs should be awarded for specific allegations in the claim and cross-claim
  2. 2 Whether all respondents should be liable for the costs of the cross-claim
  3. 3 Whether inadequate discovery justified respondents' conduct in persisting with unsubstantiated arguments

Ratio Decidendi

Indemnity costs were awarded in respect of allegations as to prior use and secret use, as respondents' persisted in arguments with no proper basis and disregarded contemporaneous evidence and contrary testimony, causing undue prolongation and wasted costs. All respondents were made liable due to their active participation, benefits sought in the outcome, and use of the cross-claimant as an artificial entity to avoid consequences, warranting the interests of justice to order costs against them.

Court Disposition

Indemnity costs awarded for claims relating to prior use and secret use; all respondents liable for cross-claim costs; otherwise, costs payable on party-party basis.

Orders

  • Order 5 made on 23 March 2016 varied so that respondents pay applicants' costs on indemnity basis for matters set out in Schedule 'A'.
  • Applicants' costs otherwise to be paid by respondents on a party-party basis.