BLH Engineering and Construction Pty Ltd v Pro 3 Products Pty Ltd (No 2) [2015] FCA 1021

BLH Engineering and Construction Pty Ltd v Pro 3 Products Pty Ltd (No 2) [2015] FCA 1021

Conventional costs orders are appropriate. Applicants are awarded their costs of the proceeding, except for costs incurred solely on their unsuccessful ACL and damages claims or revocation case; respondent is awarded its costs solely on those aspects. There are no grounds for indemnity costs as neither the letter before action nor the offer of compromise satisfies the requirements for such an order; the offer of compromise did not put the respondent at material risk, and its rejection does not lead to different costs orders given the judgment's outcome.

Parties
First Applicant: BLH Engineering and Construction Pty Ltd ACN 133 867 875; Second Applicant: BLH Safety Solutions Pty Ltd ACN 152 247 792; Respondent: Pro 3 Products Pty Ltd ACN 147 825 885
Jurisdiction
Australia
Judgment Date
15 September 2015
Procedural Posture
Civil / Post Judgment, Costs Orders
Outcome
Conventional costs orders made: respondent to pay applicants' costs except for costs incurred solely in prosecution of Australian Consumer Law claims, damages claims, and revocation case; applicants to pay respondent's costs for defence of ACL and revocation claims; further adjustments to the procedure for taxation...
Legal Topics
Costs, Offer of Compromise, Patents, Australian Consumer Law, Indemnity Costs, Revocation, Declaratory Relief
Intellectual Property Consumer Law Civil Procedure Costs Offer of Compromise Patents Australian Consumer Law Indemnity Costs +2 more

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Parties

BLH Engineering and Construction Pty Ltd ACN 133 867 875

First Applicant

BLH Safety Solutions Pty Ltd ACN 152 247 792

Second Applicant

Pro 3 Products Pty Ltd ACN 147 825 885

Respondent

Procedural Posture

Civil / Post Judgment, Costs Orders

Legal Issues

  1. 1 Whether applicants or respondent are entitled to costs of the proceeding and in what proportions
  2. 2 Whether costs should be awarded on an indemnity basis due to a Calderbank offer or offer of compromise
  3. 3 Effect of judgment versus offer of compromise regarding costs

Ratio Decidendi

Conventional costs orders are appropriate. Applicants are awarded their costs of the proceeding, except for costs incurred solely on their unsuccessful ACL and damages claims or revocation case; respondent is awarded its costs solely on those aspects. There are no grounds for indemnity costs as neither the letter before action nor the offer of compromise satisfies the requirements for such an order; the offer of compromise did not put the respondent at material risk, and its rejection does not lead to different costs orders given the judgment's outcome.

Court Disposition

Conventional costs orders made: respondent to pay applicants' costs except for costs incurred solely in prosecution of Australian Consumer Law claims, damages claims, and revocation case; applicants to pay respondent's costs for defence of ACL and revocation claims; further adjustments to the procedure for taxation...

Orders

  • Respondent to pay applicants' costs of the proceeding, excluding costs incurred solely in prosecution of ACL claims, damages claims, and revocation case.
  • Applicants to pay respondent's costs incurred solely in defence of ACL and revocation claims.