Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 2) [2010] FCA 1451

Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 2) [2010] FCA 1451

The Court declined to apply the respondents' proposed 20% overall costs discount because the issues abandoned by late amendment had not been played out at trial and the Court lacked an appropriate basis to assess whether that discount, or any percentage discount, would fairly reflect the costs thrown away. It was therefore appropriate to make distinct costs orders in the terms proposed by the applicants, including orders requiring the applicants to pay the respondents' costs on the failed infringement application and unjustified threats crossclaim, and requiring the respondents to pay the applicants' costs of the crossclaim apart from unjustified threats, including costs thrown away by...

Jurisdiction
Australia
Judgment Date
22 December 2010
Procedural Posture
Costs in Patent Litigation / Final Orders Consequential on Reasons for Decision
Outcome
Orders made in the terms proposed by the applicants.
Legal Topics
['patent Infringement' 'unjustified Threats' 'patent Validity' 'costs Discretion' 'apportionment of Costs' 'crossclaim' 'late Amendment']
['intellectual Property' 'patents' 'costs'] ['patent Infringement' 'unjustified Threats' 'patent Validity' 'costs Discretion' 'apportionment of Costs' 'crossclaim' 'late Amendment']

Case Brief

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Procedural Posture

Costs in Patent Litigation / Final Orders Consequential on Reasons for Decision

Legal Issues

  1. 1 ["What final declarations, certification and orders should be made following the Court's findings on infringement, unjustified threats and validity." "Whether costs should be ordered by applying an overall percentage discount to reflect the respondents' overall success or by making distinct costs orders reflecting success on the application, crossclaim and late amendments." "Whether the applicants should recover costs thrown away by the respondents' late amendment of the crossclaim."]

Ratio Decidendi

The Court declined to apply the respondents' proposed 20% overall costs discount because the issues abandoned by late amendment had not been played out at trial and the Court lacked an appropriate basis to assess whether that discount, or any percentage discount, would fairly reflect the costs thrown away. It was therefore appropriate to make distinct costs orders in the terms proposed by the applicants, including orders requiring the applicants to pay the respondents' costs on the failed infringement application and unjustified threats crossclaim, and requiring the respondents to pay the applicants' costs of the crossclaim apart from unjustified threats, including costs thrown away by...

Court Disposition

Orders made in the terms proposed by the applicants.

Orders

  • ["The threats made by the first applicant by letters from its solicitors dated 14 November 2006, 5 December 2006 and 13 February 2007 to the second respondent and the respondents' solicitors and threatening the bringing of infringement proceedings against the respondents for infringement of Australian Innovation...