Huili Building Materials Pty Ltd v Unilin Beheer BV [2008] FCAFC 94

Huili Building Materials Pty Ltd v Unilin Beheer BV [2008] FCAFC 94

The appeal was dismissed because the two substantive grounds advanced by the second appellant concerned matters not shown to have been raised before the primary judge, despite opportunities to contest the expert report and provide relevant material. Attempting to raise those points for the first time on appeal breached the principle in Coulton v Holcombe, and the primary judge's approach was based on the uncontested expert evidence and the material before him.

Jurisdiction
Australia
Judgment Date
27 May 2008
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia Concerning Assessment of an Account of Profits Arising From Infringement of a Patent / Appeal
Outcome
The appeal of the second appellant was dismissed with costs. The appeals of the first, third, fourth and fifth appellants had been dismissed earlier.
Legal Topics
['patent Infringement' 'account of Profits' 'apportionment' 'cost of Goods Sold' 'overheads' 'new Points on Appeal' 'costs']
['intellectual Property' 'patents' 'civil Procedure'] ['patent Infringement' 'account of Profits' 'apportionment' 'cost of Goods Sold' 'overheads' 'new Points on Appeal' 'costs']

Case Brief

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia Concerning Assessment of an Account of Profits Arising From Infringement of a Patent / Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in calculating cost of goods sold by including non-infringing products in attributable infringing products.' 'Whether the primary judge erred in relation to the calculation of overheads.' 'Whether matters not raised before the primary judge could be raised on appeal.']

Ratio Decidendi

The appeal was dismissed because the two substantive grounds advanced by the second appellant concerned matters not shown to have been raised before the primary judge, despite opportunities to contest the expert report and provide relevant material. Attempting to raise those points for the first time on appeal breached the principle in Coulton v Holcombe, and the primary judge's approach was based on the uncontested expert evidence and the material before him.

Court Disposition

The appeal of the second appellant was dismissed with costs. The appeals of the first, third, fourth and fifth appellants had been dismissed earlier.

Orders

  • ['The appeal of the second appellant be dismissed.' 'The second appellant pay the costs of the respondent.']