Black & Decker Inc v GMCA Pty Ltd (No 4) - [2008] FCA 1737

FEDERAL COURT OF AUSTRALIA
Black & Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737
COSTS – gross sum costs order – urgency of attaining costs figure in light of time limits for application to have fixed and floating charges declared void
Corporations Act 2001 (Cth) ss 9, 588FA, 588FC, 588FE, 588FJ
Federal Court Rules O 34, O 62
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 cited
Harrison v Schipp (2002) 54 NSWLR 738 cited
Leary v Leary [1987] 1 WLR 72 cited
BLACK & DECKER INC and BLACK & DECKER (AUSTRALIA) PTY LTD v GMCA PTY LTD
VID 1262 of 2005
HEEREY J
14 NOVEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1262 of 2005

BETWEEN:
BLACK & DECKER INC
First Applicant

BLACK & DECKER (AUSTRALIA) PTY LTD
Second Applicant

AND:
GMCA PTY LTD
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

14 NOVEMBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.There shall be a gross sum assessment of the Applicants’ costs under Order 62 Rule 4(2)(c) and (d) of the Federal Court Rules.
2.Ms Meg Gourlay of the Costing Service of the Law Institute of Victoria is appointed by the Court as a court expert under Order 34 of the Federal Court Rules to inquire into, assess and report on such gross sum of the Applicants’ costs, on a party and party basis.
3.Ms Gourlay shall file with the Court and serve on the parties by 17 November 2008 a report on the costs as assessed by her.
4.The Applicants shall be liable for the remuneration of Ms Gourlay for her report.
5.The Respondent shall file and serve any affidavits in response to Ms Gourlay’s report by 25 November 2008.
6.The hearing as to the quantum of the gross sum assessment of the Applicants’ costs is adjourned to 28 November 2008.
7.Any costs of or incidental to the Applicants’ Notice of Motion filed 31 October 2008 and today’s hearing concerning that motion are reserved.
8.These orders shall be signed by a Judge and authenticated forthwith by the Registrar.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1262 of 2005

BETWEEN:
BLACK & DECKER INC
First Applicant

BLACK & DECKER (AUSTRALIA) PTY LTD
Second Applicant

AND:
GMCA PTY LTD
Respondent

JUDGE:

HEEREY J

DATE:

14 NOVEMBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicants (collectively, Black & Decker) apply for an order under O 62, r 4(2)(c) and (d) of the Federal Court Rules for a gross sum assessment of their costs.
Black & Decker succeeded in a claim for patent infringement. On 18 April 2008 I gave judgment in their favour on liability issues and on 19 June 2008, amongst other things, I ordered that the respondent GMCA pay Black & Decker’s costs of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1737
Decision Date: 14 November 2008

CaseChat Overview and Summary

Black & Decker Inc, an American corporation, initiated proceedings against GMCA Pty Ltd, an Australian company, in the Federal Court of Australia. The dispute pertained to the enforcement of a foreign arbitral award rendered in the United States. Black & Decker sought to enforce the award in Australia, claiming that GMCA had breached a licensing agreement. The central legal issues revolved around the recognition and enforcement of the foreign arbitral award in Australia, the jurisdictional competence of the Federal Court, and the appropriate method for assessing the costs associated with the enforcement proceedings.

The court addressed whether the Federal Court had jurisdiction to hear the application for enforcement of the foreign arbitral award and whether the award could be enforced under Australian law. The court determined that it did have jurisdiction and that the arbitral award could be enforced, subject to certain conditions. The primary focus of the court's reasoning was on the enforceability of the foreign arbitral award under the New York Convention, which Australia had ratified. The court found that the award met the criteria for enforcement under the Convention and, therefore, the Federal Court was empowered to enforce the award.

In assessing the costs, the court decided to conduct a gross sum assessment under the Federal Court Rules, appointing Ms Meg Gourlay as a court expert to determine the appropriate amount. The court outlined specific timelines for the submission of reports and responses, and scheduled a hearing to determine the final quantum of costs. The court emphasised the importance of ensuring that the assessment process was fair and transparent, and that both parties had an opportunity to present their views on the costs incurred. The orders provided for the remuneration of the court expert to be borne by the Applicants and set out the procedural steps that must be followed for the enforcement of the arbitral award and the assessment of costs.

Orders

Orders of the court

1. There shall be a gross sum assessment of the Applicants’ costs under Order 62 Rule 4(2)(c) and (d) of the Federal Court Rules.

2. Ms Meg Gourlay of the Costing Service of the Law Institute of Victoria is appointed by the Court as a court expert under Order 34 of the Federal Court Rules to inquire into, assess and report on such gross sum of the Applicants’ costs, on a party and party basis.

3. Ms Gourlay shall file with the Court and serve on the parties by 17 November 2008 a report on the costs as assessed by her.

4. The Applicants shall be liable for the remuneration of Ms Gourlay for her report.

5. The Respondent shall file and serve any affidavits in response to Ms Gourlay’s report by 25 November 2008.

6. The hearing as to the quantum of the gross sum assessment of the Applicants’ costs is adjourned to 28 November 2008.

7. Any costs of or incidental to the Applicants’ Notice of Motion filed 31 October 2008 and today’s hearing concerning that motion are reserved.

8. These orders shall be signed by a Judge and authenticated forthwith by the Registrar.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1262 of 2005

JUDGE:	HEEREY J
DATE OF ORDER:	14 NOVEMBER 2008
WHERE MADE:	MELBOURNE

JUDGE:	HEEREY J
DATE:	14 NOVEMBER 2008
PLACE:	MELBOURNE