Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd (No 2) [2010] FCA 1168

Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd (No 2) [2010] FCA 1168

The applicant is entitled to its costs of the cross-claim, with indemnity costs for the s 202 claim as it was misconceived, and to limited costs related to copyright subsistence issues where the respondents unreasonably failed to concede. The respondents, as successful parties overall, are entitled to their costs except as limited by specific rulings regarding the cross-claim, the subsistence issue, the interlocutory hearing on 8 April 2010 (one-half only), and the costs relating to resisting the indemnity basis application.

Parties
Applicant: Ron Englehart Pty Ltd (ACN 005 657 554); First Respondent: Enterprise Constructions (Aust) Pty Ltd (ACN 067 405 896); Second Respondent: Safak Arlen Dervish
Jurisdiction
Australia
Judgment Date
29 October 2010
Procedural Posture
Copyright Infringement and Cross Claim for Unjustified Threats / Post Trial, Determination of Costs
Outcome
Primarily respondents to have their costs with significant exceptions in applicant’s favour as specified in orders.
Legal Topics
Costs, Copyright Infringement, Amendment to Defence, Cross Claim Dismissal, Indemnity Costs, Discovery Obligations
Practice and Procedure Intellectual Property Costs Copyright Infringement Amendment to Defence Cross Claim Dismissal Indemnity Costs Discovery Obligations

Case Brief

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Parties

Ron Englehart Pty Ltd (ACN 005 657 554)

Applicant

Enterprise Constructions (Aust) Pty Ltd (ACN 067 405 896)

First Respondent

Safak Arlen Dervish

Second Respondent

Procedural Posture

Copyright Infringement and Cross Claim for Unjustified Threats / Post Trial, Determination of Costs

Legal Issues

  1. 1 Whether applicant entitled to costs thrown away by reason of amendment to defence and its costs of the cross-claim
  2. 2 Whether applicant entitled to indemnity costs of the cross-claim
  3. 3 Entitlement to costs for the issue of copyright subsistence

Ratio Decidendi

The applicant is entitled to its costs of the cross-claim, with indemnity costs for the s 202 claim as it was misconceived, and to limited costs related to copyright subsistence issues where the respondents unreasonably failed to concede. The respondents, as successful parties overall, are entitled to their costs except as limited by specific rulings regarding the cross-claim, the subsistence issue, the interlocutory hearing on 8 April 2010 (one-half only), and the costs relating to resisting the indemnity basis application.

Court Disposition

Primarily respondents to have their costs with significant exceptions in applicant’s favour as specified in orders.

Orders

  • First respondent to pay applicant's costs incurred only in connection with the first respondent's Cross‑claim filed on 20 August 2009, with costs limited for certain allegations to those incurred on or before 18 February 2010.
  • Costs incurred by the applicant in connection with s 202 aspects of the Cross‑claim to be taxed on an indemnity basis.