FEDERAL COURT OF AUSTRALIA
Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2009] FCA 1512
Designs Act 1906 (Cth) s 30
CHIROPEDIC BEDDING PTY LTD (ACN 052 960 808) v RADBURG PTY LTD (ACN 006 020 702)
VID 288 of 2007
JESSUP J
5 NOVEMBER 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 288 of 2007
BETWEEN: CHIROPEDIC BEDDING PTY LTD (ACN 052 960 808)
ApplicantAND: RADBURG PTY LTD (ACN 006 020 702)
Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
5 NOVEMBER 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Subject to previous costs orders made in this proceeding –
a.the cross-claimant pay the cross-respondent’s costs, including reserved costs, of the Cross-claim;
b. in relation to the Claim –
i.the respondent pay 70% of the applicant’s costs, including reserved costs;
ii.the applicant pay 30% of the respondent’s costs, including reserved costs;
c.Each party be entitled to set off its obligation to pay costs to the other party against its entitlement to receive its own costs from that other party.
2.The motion of which the applicant gave notice on 30 October 2009 be dismissed with costs.
3.Save as aforesaid, the parties’ costs of today be their costs in the cause.
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
GENERAL DIVISION
VID 288 of 2007
BETWEEN: CHIROPEDIC BEDDING PTY LTD (ACN 052 960 808)
ApplicantAND: RADBURG PTY LTD (ACN 006 020 702)
Respondent
JUDGE:
JESSUP J
DATE:
5 NOVEMBER 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
PART A
The ruling I am about to give relates to the costs of this proceeding at first instance, in which I delivered judgment on 14 October 2009 dismissing the respondent’s Cross-claim on validity and upholding the applicant’s claims of infringement in relation to two of the 51 articles which had been the subject of that claim under s 30 of the Designs Act 1906 (Cth). In relation to those two articles, I ordered that an account be taken of the profits derived by the respondent from the sale of them. That account has not yet been taken.
The first submission with which I need to deal this morning relates to the respondent’s suggestion that I should make no order of costs at this stage because it may be that the applicant is entitled to a relatively small sum of money once the accounting has proceeded. I am not disposed to accept that submission. I have been informed by counsel that, at least relevantly to the present question, there was no offer of compromise made. I think I should proceed to deal with the costs of the applicant’s claims for infringement without regard to the sum of money to which it might ultimately become entitled with respect to those articles on which it succeeded.
That leaves the disposition…
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- Case
- [2009] FCA 1512
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the merits of the original claim and cross-claim, assessing the reasonableness of the costs incurred by both parties, and deciding on the appropriate apportionment of costs. The court had to consider the conduct of both parties throughout the litigation process, the success rates in the proceedings, and the equitable distribution of costs in light of the respective outcomes.
In delivering the judgment, the court analysed the evidence and arguments presented by both parties. The court found that while Chiropedic Bedding Pty Ltd was successful on certain aspects of their claim, Radburg Pty Ltd was not entirely without merit in their cross-claim. The court ruled that an equitable distribution of costs was necessary, leading to the decision that Chiropedic Bedding Pty Ltd would bear 30% of Radburg Pty Ltd's costs, while Radburg Pty Ltd would bear 70% of Chiropedic Bedding Pty Ltd's costs. Additionally, the court dismissed a motion made by Chiropedic Bedding Pty Ltd with costs, and ordered that the costs of the day be borne by the respective parties.
This decision concluded with specific orders regarding the distribution of costs between the parties, reflecting the outcomes of their claims and the court's assessment of their conduct throughout the litigation.
Orders
Orders of the court
1. Subject to previous costs orders made in this proceeding –
a. the cross-claimant pay the cross-respondent’s costs, including reserved costs, of the Cross-claim;
b. in relation to the Claim –
i. the respondent pay 70% of the applicant’s costs, including reserved costs;
ii. the applicant pay 30% of the respondent’s costs, including reserved costs;
c. Each party be entitled to set off its obligation to pay costs to the other party against its entitlement to receive its own costs from that other party.
2. The motion of which the applicant gave notice on 30 October 2009 be dismissed with costs.
3. Save as aforesaid, the parties’ costs of today be their costs in the cause.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: JESSUP J
Full text does not contain this section.