Facton Ltd v Erdogan (No 2)

[2012] FCA 930

FEDERAL COURT OF AUSTRALIA

Facton Ltd v Erdogan (No 2) [2012] FCA 930

Citation:		Facton Ltd v Erdogan (No 2) [2012] FCA 930
Parties:		FACTON LTD, G-STAR RAW C.V. and G-STAR AUSTRALIA PTY LTD (ACN 084 011 852) v ALI ERDOGAN
File number:		VID 1191 of 2011
Judge:		MURPHY J
Date of judgment:		29 August 2012
Date of hearing:	20 August 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	10
Solicitor for the Applicants:	Mr J Feder of Middletons Lawyers
Counsel for the Respondent:	The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1191 of 2011

BETWEEN:

FACTON LTD
First Applicant

G-STAR RAW C.V.
Second Applicant

G-STAR AUSTRALIA PTY LTD (ACN 084 011 852)
Third Applicant

AND:

ALI ERDOGAN
Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	29 AUGUST 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondent pay interest in accordance with rule 39.06 of the Federal Court Rules from 1 August 2011 up to 20 August 2012, on the general damages awarded of $18,662.50.

2.The respondent pay interest in accordance with rule 39.06 from 20 August 2012 on the general and additional damages awarded of $35,662.50.

3.The respondent pay interest in accordance with rule 39.06 on the applicant’s costs of $72,184.63.  

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1191 of 2011

BETWEEN:

FACTON LTD
First Applicant

G-STAR RAW C.V.
Second Applicant

G-STAR AUSTRALIA PTY LTD (ACN 084 011 852)
Third Applicant

AND:

ALI ERDOGAN
Respondent

JUDGE:	MURPHY J
DATE:	29 AUGUST 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 20 August 2012 I gave reasons in this matter awarding default judgment against the respondent. I awarded damages to the applicants of $35,662.50 comprising:

   (a)$8,662.50 in general damages for lost sales and $10,000 for damages to reputation pursuant to s 115(2) of the Copyright Act 1968 (Cth) (“Copyright Act”); and

   (b)$17,000 in additional damages pursuant to s 115(4) of the Copyright Act.

2. I also ordered that the respondent pay the applicant’s costs totalling $72,184.63 on a gross sum basis pursuant to rule 40.02(b) of the Federal Court Rules 2011 (FCR).

3. Interest was ordered in respect of both damages and costs. However the calculation of that interest was reserved and I called for brief submissions on that point.

4. I have now determined to order interest as follows in the short reasons below.

   INTEREST ON JUDGMENT

   Interest up to judgment

5. Section 51A of the Federal Court of Australia Act 1976 (Cth) (“FCA”) provides for the award interest on damages from the date the cause of action arose up to the date of judgment. However, interest up to the date of judgment is not payable on an award of punitive or exemplary damages: s 51A(3)(c) of the FCA. Interest up to the date of judgment is only sought by the applicant on the award of general damages and not on the additional damages.

6. The applicant submits, and I accept, that the Court can assume that the infringing conduct commenced on commencement of the lease of the Auburn Premises, 1 August 2011. 

7. Accordingly, I order interest on the general damages award of $18,662.50 at the rate prescribed in rule 39.06 of the FCR from 1 August 2011 up to the date of judgment on 20 August 2012.

   Interest on Judgment

8. Section 52 of the FCA provides that a judgment debt under a judgment of the Court carries interest from the date judgment is entered. The applicants have sought only that interest be awarded on the general damages. However s 52 contains no prohibition on ordering the payment of interest from the date of judgment on an award of additional damages. The applicants are therefore entitled to interest from the date of judgment not only on the general damages awarded pursuant to s 115(2) of the Copyright Act 1968 (Cth), but also on the additional damages awarded pursuant to s 115(4) of the Copyright Act.

9. I order interest from the date of judgment on the general and additional damages award totalling $35,662.50, at the rate prescribed in rule 39.06 of the FCR.

   Interest on Costs

10. Rule 40.32(3) provides that costs certified in the certificate of taxation accrue interest, calculated in accordance with rule 39.06 from the date the certificate of taxation is served. In this case, the applicants were granted their costs on a gross sum basis. Therefore, a certificate of taxation will not be issued by the Court. However, rule 40.32(2) provides that a certificate of taxation has the force and effect of an order of the Court. As an order has been made by the Court for the payment of costs on a gross sum basis. I order that the respondent pay interests on those costs in accordance with rule 39.06 of the FCR from the date the order is served.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate:

Dated:       29 August 2012