Bitech Engineering v Garth Living Pty Ltd

[2013] FCA 881

FEDERAL COURT OF AUSTRALIA

Bitech Engineering v Garth Living Pty Ltd [2013] FCA 881

Citation:

Bitech Engineering v Garth Living Pty Ltd [2013] FCA 881

Parties:

BITECH ENGINEERING v GARTH LIVING PTY LTD (ACN 111 145 432); BITECH ENGINEERING v BUNNINGS GROUP LIMITED (ACN 008 672 179)

File numbers:

NSD 1681 of 2006
NSD 43 of 2007

Judge:

FOSTER J

Date of judgment:

30 August 2013

Catchwords:

DAMAGES – final assessment of damages in favour of the applicant for infringement of its registered patent

COSTS – whether indemnity costs should be awarded in favour of an applicant from a date which is 14 days after the applicant made a reasonable Calderbank offer to the respondents and the respondents failed to accept that offer – whether the respondents acted unreasonably and imprudently in failing to accept the applicant’s offer

Legislation:

Federal Court Rules 2011, Pt 25

Cases cited:

Bitech Engineering v Garth Living Pty Ltd [2013] FCA 822 related
Calderbank v Calderbank[1976] Fam 93; [1975] 3 All ER 333 cited
Specsavers Pty Limited v Luxottica Retail Australia Pty Limited (No 2) [2013] FCA 80 followed

Date of hearing:

Decided on the papers

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

42

Counsel for the Applicant:

Mr C Dimitriadis and Mr PA Maddigan

Solicitor for the Applicant:

DLA Piper Australia

Counsel for the Respondents:

Ms JE Rawlings

Solicitor for the Respondents:

Eales& Mackenzie Melbourne

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY
GENERAL DIVISION	NSD 1681 of 2006

BETWEEN:	BITECH ENGINEERING Applicant
AND:	GARTH LIVING PTY LTD (ACN 111 145 432) Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	30 AUGUST 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent pay to the applicant the sum of $668,417 (comprising $433,969 by way of damages for infringement of Australian Patent No 621713 and $234,448by way of interest).

2.Subject to the operation of all existing orders as to costs to the intent that all such orders shall remain undisturbed and of full force and effect, the respondent pay the applicant’s costs of and incidental to these proceedings incurred after 23 July 2010 including reserved costs and, in particular, including the applicant’s costs in respect of the issues heard by the Court in the period from 23 July 2012 to 27 July 2012:

(a)Up to and including 13 July 2012, on the party/party basis;

(b)With the exception of the costs described in subpar (c) below, thereafter on an indemnity basis; and

(c)Insofar as the costs of and incidental to the Supplementary Expert’s Report dated 22 August 2013 prepared by Martin Paul Langridge are concerned, on the party/party basis.

3.At the expiration of twenty-one (21) days from the date of these orders, the exhibits and subpoenaed documents be returned to the person or entity (as the case may be) who tendered or produced the particular documents or things to the Court.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT…