Bitech Engineering v Garth Living Pty Ltd

Bitech Engineering, an applicant, brought an action against Garth Living and Bunnings for infringement of its registered patent. The court was required to determine the final assessment of damages in favour of the applicant and whether indemnity costs should be awarded in favour of the applicant from a date which was 14 days after the applicant made a reasonable Calderbank offer to the respondents and the respondents failed to accept that offer. The court's approach to the assessment of damages was to determine the number of units of each model actually sold by Bunnings, break down the unit numbers of each model sold in each calendar year, multiply the relevant gross margins figure by the number of units of each comparable model actually sold by Bunnings in each calendar year, add together the lost gross margins for each model for each calendar year and factor in any appropriate discounts. The court found that the offer made by the applicant in its Calderbank letter represented a significant compromise of the claims then being made by it and represented, in the end, a substantial compromise when compared with the award of damages which the court proposed to make. The court found that the respondents' failure to accept the offer made by the applicant in its Calderbank letter was both unreasonable and imprudent. The court ordered that the respondents 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. The court also ordered that the costs of and incidental to the Supplementary Expert's Report dated 22 August 2013 prepared by Martin Paul Langridge be taxed on the party/party basis.