iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd (No 3)
[2023] FedCFamC2G 801
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd (No 3) [2023] FedCFamC2G 801
File number(s): SYG 3343 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 1 September 2023 Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – orders for summary judgment and judgment by default had been made and entered subject to further submissions on the assessment of compensation, interest, and costs – orders made for compensation, interest, and costs. Legislation: Competition and Consumer Act 2010 (Cth) Sch 2, s 236
Copyright Act 1968 (Cth) s 115(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 212
Trade Marks Act 1995 (Cth) ss 126(1)(b), 126(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22.02(2)
Cases cited: A2B Australia Limited v Verma [2021] FedCFamC2G 204
iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd [2022] FedCFamC2G 1052
Division: General Number of paragraphs: 20 Date of last submission/s: 5 May 2023 Date of hearing: 1 March 2023 Place: Sydney Counsel for the Applicants: Ms F St John Solicitor for the Applicants: Gilbert + Tobin The Fifteenth, Sixteenth, and Twentieth Respondents: Appeared in person, with the assistance of an interpreter The Fourth, Fifth, Sixth, Seventh, Eleventh, Twelfth, Thirteenth, and Fourteenth Respondents: No appearance by, or on behalf of, the Fourth, Fifth, Sixth, Seventh, Eleventh, Twelfth, Thirteenth and Fourteenth Respondents ORDERS
SYG 3343 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INOVA PHARMACEUTICALS (AUSTRALIA) PTY LTD ACN 617 871 539
First Applicant
INOVA PHARMACEUTICALS (SINGAPORE) PTE. LIMITED UEN 200617543H
Second Applicant
AND: LETOS GROUP PTY LTD ACN 623 106 561
Fourth Respondent
LIYAN LIANG
Fifth Respondent
C&J AUS GROUP PTY LTD ACN 617 599 961 (and others named in the Schedule)
Sixth Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 236 of Schedule 2 to the Competition and Consumer Act 2010 (Cth), s 126(1)(b) of the Trade Marks Act 1995 (Cth) (Trade Marks Act), and s 115(2) of the Copyright Act 1968 (Cth) (Copyright Act):
(a)the fourth respondent (Letos Group Pty Ltd) and the fifth respondent (Liyan Liang) pay:
(i)$46,798.20 to the first applicant (iNova Australia); and
(ii)$79,380.35 to the second applicant (iNova Singapore);
(b)the sixth respondent (C & J Aus Group Pty Ltd) and the seventh respondent (Taiyi Chang) pay:
(i)$11,971.60 to iNova Australia; and
(ii)$20,323.30 to iNova Singapore; and
(c)eleventh respondent (Jun Wei Pty Ltd), the twelfth respondent (Ningning Wei), and the thirteenth respondent (Li Bin) pay:
(i)$58,305.24 to iNova Australia; and
(ii)$98,888.87 to iNova Singapore.
2.Pursuant to s 126(2) of the Trade Marks Act:
(a)the fourth respondent (Letos Group Pty Ltd) and the fifth respondent (Liyan Liang) pay:
(i)$23,399.10 to the iNova Australia, being 50% of the amount specified in order 1(a)(i); and
(ii)$39,690.17 to the iNova Singapore, being 50% of the amount specified in order 1(a)(ii);
(b)the sixth respondent (C & J Aus Group Pty Ltd) and the seventh respondent (Taiyi Chang) pay:
(i)$11,971.60 to iNova Australia, being 100% of the amount specified in order 1(b)(i); and
(ii)$20,323.30 to iNova Singapore, being 100% of the amount specified in order 1(b)(ii); and
(c)eleventh respondent (Jun Wei Pty Ltd), the twelfth respondent (Ningning Wei), and the thirteenth respondent (Li Bin) pay:
(i)$58,305.24 to iNova Australia, being 100% of the amount specified in order 1(c)(i); and
(ii)$98,888.87 to iNova Singapore, being 100% of the amount specified n order 1(c)(ii).
3.Pursuant to s 212 of the Federal Circuit and Family Court of Australia Act 2021 (Cth):
(a)the fourth respondent (Letos Group Pty Ltd) and the fifth respondent (Liyan Liang):
(i)pay to iNova Australia interest on the amounts specified in orders 1(a)(i) and 2(a)(i) from 16 December 2019 to 1 September 2023 in the amount of $5,772.74.
(ii)pay to iNova Singapore interest on the amounts specified in orders 1(a)(ii) and 2(a)(ii) from 16 December 2019 to 1 September 2023 in the amount of $9,829.31
(b)sixth respondent (C & J Aus Group Pty Ltd) and the seventh respondent (Taiyi Chang):
(i)pay to iNova Australia interest on the amounts specified in orders 1(b)(i) and 2(a)(i) from 16 December 2019 to 1 September 2023 in the amount of $2,955.14.
(ii)pay to iNova Singapore interest on the amounts specified in orders 1(b)(ii) and 2(b)(ii) from 16 December 2019 to 1 September 2023 in the amount of $5,031.11
(c)eleventh respondent (Jun Wei Pty Ltd), the twelfth respondent (Ningning Wei), and the thirteenth respondent (Li Bin):
(i)pay to iNova Australia interest on the amounts specified in orders 1(c)(i) and 2(c)(i) from 16 December 2019 to 1 September 2023 in the amount of $14,383.26.
(ii)pay to iNova Singapore interest on the amounts specified in orders 1(c)(ii) and 2(c)(ii) from 16 December 2019 to 1 September 2023 in the amount of $24,490.51.
4.Pursuant to r 22.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth):
(a)the fourth respondent (Letos Group Pty Ltd) and the fifth respondent (Liyan Liang) pay to the applicants costs set in the amount of $70,084.02;
(b)sixth respondent (C & J Aus Group Pty Ltd) and the seventh respondent (Taiyi Chang) pay to the applicants costs set in the amount of $71,335.10; and
(c)eleventh respondent (Jun Wei Pty Ltd), the twelfth respondent (Ningning Wei), and the thirteenth respondent (Li Bin) pay to the applicants costs set in the amount of $68,334.66.
5.The proceeding is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 16 December 2022, on the basis of reasons for judgment I published on that day (Earlier Reasons),[1] I made the following declarations (Declarations) against the fourth, fifth, sixth, seventh, eleventh, twelfth, thirteenth, fourteenth, sixteenth, and twentieth respondents (Respondents):
[1] iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd [2022] FedCFamC2G 1052
1.By selling at least 13,886 units of cardboard packages (purported Dermatix packages), each of which featured the name “Dermatix”, and each of which contained:
(a)a 15g tube that included the name “Dermatix” (purported Dermatix tube); and
(b)a leaflet which also included the name Dermatix (purported Dermatix leaflet),
the fourth respondent, Letos Group Pty Ltd:
(c)infringed, within the meaning of s 120(1) of the Trade Marks Act 1995 (Cth) (TM Act), the second applicant’s registered trade marks DERMATIX (no.96006), INOVA PHARMACEUTICALS (no. 1187326), and INOVA (nos. 1452317 and 1615930) (Trade Marks);
(d)infringed, within the meaning of s 38 of the Copyright Act 1968 (Cth) (Copyright Act), the second respondent’s copyright (the Copyright) in the literary and artistic work that was embodied in or otherwise formed part of the packaging, tube, and leaflet which the purported Dermatix packages, purported Dermatix tubes, and purported Dermatix leaflets respectively replicated;
(e)engaged in conduct that:
(i)was misleading or deceptive, or that was likely to mislead or deceive in contravention of s 18(1) of Schedule 2 (ACL) to the Competition and Consumer Act 2010 (Cth), and
(ii)conveyed false or misleading representations, in contravention of s 29(1)(a) and s 29(1)(g) of the ACL; and
(f)committed the tort of passing off.
2.The fifth respondent, Liyan Liang:
(a)is liable as a joint tortfeasor for Letos Group Pty Ltd’s infringement of the Trade Marks, infringement of the Copyright, and commissions of the tort of passing off; and
(b)is a person involved, within the meaning of s 2 of the ACL, in Letos Group Pty Ltd’s contraventions of s 18(1), and s 29(1)(a) and s 29(1)(g) of the ACL.
3.By selling at least 2,728 purported Dermatix packages, each of which contained a purported Dermatix tube, and a purported Dermatix leaflet, the sixth respondent, C & J Aus Group Pty Ltd:
(a)infringed the Trade Marks, within the meaning of s 120(1) of the TM Act;
(b)infringed the Copyright, within the meaning of s 38 of the Copyright Act;
(c)engaged in conduct that:
(i)was misleading or deceptive, or that was likely to mislead or deceive in contravention of s 18(1) of the ACL, and
(ii)conveyed false or misleading representations, in contravention of s 29(1)(a) and s 29(1)(g) of the ACL; and
(d)committed the tort of passing off.
4.The seventh respondent, Taiyi Chang:
(a)is liable as a joint tortfeasor for C & J Aus Group Pty Ltd’s infringement of the Trade Marks, infringement of the Copyright, and commissions of the tort of passing off; and
(b)is a person involved, within the meaning of s 2 of the ACL, of C & J Aus Group Pty Ltd’s contraventions of s 18(1), and s 29(1)(a) and 29(1)(g) of the ACL.
5.By selling at least 16,622 purported Dermatix packages, each of which contained a purported Dermatix tube and a purported Dermatix leaflet, the eleventh respondent, Jun Wei Pty Ltd:
(a)infringed the Trade Marks, within the meaning of s 120(1) of the TM Act;
(b)infringed the Copyright, within the meaning of s 38 of the Copyright Act;
(c)engaged in conduct that:
(i)was misleading or deceptive, or that was likely to mislead or deceive in contravention of s 18(1) of the ACL, and
(ii)conveyed false or misleading representations, in contravention of s 29(1)(a) and s 29(1)(g) of the ACL; and
(d)committed the tort of passing off.
6.Each of the twelfth respondent, Ningning Wei, and the thirteenth respondent, Li Bin:
(a)is liable as a joint tortfeasor for Jun Wei Pty Ltd’s infringement of the Trade Marks, infringement of the Copyright, and commissions of the tort of passing off; and
(b)is a person involved, within the meaning of s 2 of the ACL, in Jun Wei Pty Ltd’s contraventions of s 18(1), and s 29(1)(a) and 29(1)(g) of the ACL.
7.By selling at least 259 purported Dermatix packages, each of which contained a purported Dermatix tube and a purported Dermatix leaflet, the fourteenth respondent, FY Health Pty Ltd:
(a)infringed the Trade Marks, within the meaning of s 120(1) of the TM Act;
(b)infringed the Copyright, within the meaning of s 38 of the Copyright Act;
(c)engaged in conduct that:
(i)was misleading or deceptive, or that was likely to mislead or deceive in contravention of s 18(1) of the ACL, and
(ii)conveyed false or misleading representations, in contravention of s 29(1)(a) and s 29(1)(g) of the ACL; and
(iii)committed the tort of passing off.
8.Each of the sixteenth respondent, Mingfang Xue, and the twentieth respondent, Yuan He:
(a)is liable as a joint tortfeasor for FY Health Pty Ltd’s infringement of the Trade Marks, infringement of the Copyright, and commissions of the tort of passing off; and
(b)is a person involved, within the meaning of s 2 of the ACL, in FY Health Pty Ltd’s contraventions of s 18(1), and s 29(1)(a) and 29(1)(g) of the ACL.
9.By selling at least 3,701 purported Dermatix packages, each of which contained a purported Dermatix tube and a purported Dermatix leaflet, the twentieth respondent, Yuan He, trading as “FY Trading”:
(a)infringed the Trade Marks, within the meaning of s 120(1) of the TM Act;
(b)infringed the Copyright, within the meaning of s 38 of the Copyright Act;
(c)engaged in conduct that:
(i)was misleading or deceptive, or that was likely to mislead or deceive in contravention of s 18(1) of the ACL, and
(ii)conveyed false or misleading representations, in contravention of s 29(1)(a) and s 29(1)(g) of the ACL; and
(d) committed the tort of passing off.
I also granted injunctions against each of the Respondents. I was not prepared to make any orders for the payment of damages, or an order for costs, without giving the applicants the opportunity to provide further evidence, and make submissions on questions I identified in the Earlier Reasons.[2]
[2] iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd [2022] FedCFamC2G 1052, at [156]-[162], [238]
After I published the Earlier Reasons, the applicants filed further evidence, and I listed the matter for a hearing on 1 March 2023. On that day the applicants appeared by their counsel, Ms St John, and each of the fifteenth, sixteenth, and twentieth respondents appeared. The fourth, fifth, sixth, seventh, eleventh, twelfth, and thirteenth respondents did not appear.
At the hearing on 1 March 2023 I received additional evidence, and I heard submissions. At the conclusion of the hearing I made orders permitting the fourteenth, sixteenth, and twentieth respondents to file evidence and submissions by 24 March 2023; and I further ordered that, unless by that day the fourteenth, sixteenth, and twentieth respondents were to inform the Court they required a further hearing, I would reserve my judgment on the question of compensation, interest, and costs. The fourteenth, sixteenth, and twentieth respondents did not file any affidavits or submissions; instead, on 5 May 2023, the lawyers for the applicants sent an email to my Associate in which they said that a confidential settlement has been reached between the applicants and the fourteenth, sixteenth, and twentieth respondents and, consequently, the applicants are no longer pursuing monetary claims against those respondents.
In these reasons for judgment, therefore, I consider the assessment of the applicants’ claims for damages, interest, and costs against the fourth, fifth, sixth, seventh, eleventh, twelfth, and thirteenth respondents (Remaining Respondents) should be ordered to pay. These reasons for judgment assume a familiarity with the Earlier Reasons.
EVIDENCE
In the Earlier Reasons I noted that the applicants claimed damages in an amount that reflected the profits they would have made had the Respondents not engaged in the conduct identified in the Declarations (infringing conduct); and that there were two elements to the applicants’ calculation of their loss of profits. The first consisted of an estimate of the Dermatix products the applicants would have sold had the Respondents not engaged in the infringing conduct. I found that the applicants’ approach to estimating the volume of Dermatix products the applicants would have sold, had the Respondents not engaged in the infringing conduct, was reasonable.[3] The second element of the applicants’ assessment of their loss of profits related to the calculation of the profits the applicants would have made on each sale. I found that the applicants’ approach presented two difficulties. The first is that the applicants ignored they are separate legal entities; and the second is that the calculation assumed that the only variable costs the applicants would have incurred in connection with the sale of Dermatix products is the cost of purchasing the Dermatix products, and I was not prepared to make that assumption without further evidence.
[3] iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd [2022] FedCFamC2G 1052, at [156]-[162], [157], [158]
At the hearing on 1 March 2023 the applicants relied on the following evidence:
(a)An affidavit made by Mr Sachin Roneal Deo on 24 February 2023. Mr Deo holds the position of “Finance Director-ANZ” with the first applicant (iNova Australia). Mr Deo exhibits to his affidavit three sets of documents that I ordered be confidential. One of the three exhibits contains financial information, and the other two are excel spreadsheets.[4] In his affidavit Mr Deo describes, among other things, the supply arrangements between iNova Australia and the second applicant (iNova Singapore) in relation to Dermatix products.
(b)An affidavit made by Ms Sally Louise Davitt on 24 February 2023. Ms Davitt is a forensic accountant who prepared a report in which she calculates the per unit profit of Dermatix products (Report) in the hands of iNova Australia and iNova Singapore. Ms Davitt exhibits a number of documents to her affidavit, including the Report.[5]
(c)An affidavit made by Ms Kate Messiter on 27 February 2023. Ms Messiter is employed by iNova Australia in the position of Group General Counsel and Head of Communications. Ms Messiter exhibits a bundle of documents to her affidavit that contain confidential financial information that is relevant to identifying the impact of counterfeiting on the sales of Dermatix products.[6]
(d)An affidavit made by Mr Michael John Williams on 27 February 2023. Mr Williams is the lawyer for the applicants. Mr Williams exhibits to his affidavit documents containing information relevant to settlements the applicants have reached with former parties to the proceeding.[7]
[4] Confidential Exhibit SRD-1; Confidential Exhibit SRD-2; Confidential Exhibit SRD-3
[5] Exhibit SLD-1; Confidential Exhibit SLD-2; Confidential Exhibit SLD-3
[6] Confidential Exhibit KM-4
[7] Confidential Exhibit MJW-13
Given the confidentiality orders I made in relation to most of the material on which the applicants rely in support of their assessment of damages, it would not be appropriate to set out the evidence in these reasons. I need only note the following:
(a)Both iNova Singapore and iNova Australia would have made a profit for each sale of a Dermatix product that iNova Australia would have made in Australia, but for the infringing conduct.
(b)The Report quantifies the unit profit each of iNova Singapore and iNova Australia would have lost on each sale of a Dermatix product that iNova Australia would have made in Australia, but for the infringing activity.
I am satisfied that the Report proves the unit profit each of iNova Singapore and iNova Australia would have made in relation to each sale of Dermatix products that iNova Australia would have made in Australia, but for the infringing conduct. I will therefore assess damages on the basis of the opinions contained in the Report.
ASSESSMENT OF COMPENSATION
The applicants provided a draft form of orders, and I propose to assess compensation by reference to those draft orders (Proposed Form of Orders); and also by reference to the (confidential) document titled “Applicants’ aide memoire for further submissions on damages and costs” (Aide Memoire).[8]
[8] Which I marked “MFI4”
The first order of the Proposed Form of Orders provides an amount that reflects loss of profit, calculated on the basis of the Report, and the loss of reputation I assessed in the Earlier Reasons. For the reasons Ms St John submitted, I consider it is appropriate that the loss of profit be assessed solely on the basis of the 2018 figures stated in the Report. I therefore find as follows:
(a)The infringing conduct of the fourth respondent (Letos Group Pty Ltd) and the fifth respondent (Liyan Liang):
(i)caused iNova Singapore to suffer damage of $69,930.35 for loss of profit, and damage of $9,450 for loss or reputation, as a consequence of which Letos Group Pty Ltd and Liyan Liang must pay damages to iNova Singapore in the sum of $79,380.45; and
(ii)caused iNova Australia to suffer damage of $41,248.20 for loss of profit, and damage of $5,550 for loss to reputation, as a consequence of which Letos Group Pty Ltd and Liyan Liang must pay damages to iNova Australia in the sum of $46,798.20.
(b)The infringing conduct of the sixth respondent (C & J Aus Group Pty Ltd) and the seventh respondent (Taiyi Chang):
(i)caused iNova Singapore to suffer damage of $14,023.30 for loss of profit, and damage of $6,300 for loss to reputation, as a consequence of which C & J Aus Group Pty Ltd and Taiyi Chang must pay damages to iNova Singapore in the sum of $20,323.30; and
(ii)caused iNova Australia to suffer damage of $8,271.60 for loss of profit, and damage of $3,700 for loss to reputation, as a consequence of which C & J Aus Group Pty Ltd and Taiyi Chang must pay damages to iNova Australia in the sum of $11,971.60.
(c)The infringing conduct of the eleventh respondent (Jun Wei Pty Ltd), the twelfth respondent (Ningning Wei), and the thirteenth respondent (Li Bin):
(i)caused iNova Singapore to suffer damage of $89,438.87 for loss of profit, and damage of $9,450 for loss to reputation, as a consequence of which Jun Wei Pty Ltd, Ningning Wei, and Li Bin must pay damages to iNova Singapore in the sum of $98,888.87; and
(ii)caused iNova Australia to suffer damage of $52,755.24 for loss of profit, and damage of $5,550 for loss of reputation, as a consequence of which Jun Wei Pty Ltd, Ningning Wei, and Li Bin must pay damages to iNova Australia in the sum of $58,305.24.
The amounts specified in paragraph 11 reflect the amounts stated in the tables in paragraphs 2(b) and 3 of the Aide Memoire.
I will order that the Remaining Respondents pay these amounts to iNova Singapore and iNova Australia respectively. I will also order that the Remaining Respondents pay the additional amount of damages that in the Earlier Reasons I held they should pay. In the Earlier Reasons I assessed the additional damages by reference to percentages of the amounts of compensation that the Relevant Respondents would be ordered to pay – 50% in the case of the fourth and fifth respondents, and 100% in the case of the sixth, eleventh, twelfth, and thirteenth respondents. Through error, however, I did not make an express finding in relation to the additional damages the seventh respondent, Taiyi Chang, should be ordered to pay. I intended to conclude, and I now conclude, that the seventh respondent should also pay additional damages jointly with the sixth respondent equal to 100% of the amount of compensation I would order the sixth and seventh respondents pay. I will therefore also order that the seventh respondent pay 100% of the compensation I will order the seventh respondent to pay.
When the percentages for additional damages are applied to the amounts in paragraph 11 of these reasons, the resulting amounts differ from the amounts specified in paragraph 4 of the Aide Memoire – the amounts in relation to iNova Singapore are slightly less than the amounts specified in paragraph 4 of the Aide Memoire, and the amounts in relation to iNova Australia are correspondingly slightly more than the amounts specified in paragraph 4 of the Aide Memoire. The aggregate difference between my calculations and those contained in paragraph 4 of the Aide Memoire are trivial; and I will accept the applicants’ calculations of the additional damages for the purpose of calculating interest.
INTEREST
I will also order interest. The Aide Memoire contains a table of interest calculations that are based on the amounts stated in paragraphs 2(b), 3, and 4 of the Aide Memoire. I will award interest as calculated by the respondents in Annexure “A” to the Aide Memoire. That annexure calculates interest up to 31 March 2023, but it includes daily rates. I will apply the daily rates from 1 April 2023 up to 1 September 2023, being the day on which I propose to pronounce orders.
COSTS
The applicants apply for lump sum costs orders against the respondents pursuant to r 22.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The applicants rely on the following principles stated by Judge Baird in A2B Australia Limited v Verma:[9]
The purpose of a lump sum costs order has been described as to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: see LFDB v SM (No. 2) [2017] FCAFC 207 at [14], and A2B v OZ Power at [22]. Awarding lump sum costs is a process of fixing an estimation and not arithmetic calculation or precision. It must be logical, fair and reasonable, and the Rules contemplate a broad brush approach.
[9] A2B Australia Limited v Verma [2021] FedCFamC2G 204, at [95]
The applicants also rely on the affidavit of Mr Williams made on 27 February 2023. In that affidavit Mr Williams:
(a)identified the total costs billed to the applicants in the proceedings from its commencement until 26 February 2023, and anticipated future costs;
(b)apportioned the billed costs between the Respondents based on the party or parties in relation to which the work that was billed was carried out;
(c)calculated the costs in relation to the Respondents but classified into four groups – 25.19% of the total costs in relation to the fourth and fifth respondent (Letos Parties); 25.64% of the total costs in relation to the sixth and seventh respondents (C & J Parties); 24.6% of the total costs the eleventh, twelfth, and thirteenth respondents (Jun Wei Parties); and 24.57% of the total costs in relation to the fifteenth, sixteenth, and twentieth respondents (FY Parties);
(d)discounted the costs in (c) to take account of settlement amounts the applicants received from parties with whom the applicants had settled;
(e)discounted the total disbursements billed to the applicants to reflect the discount referred to in (d); and then allocated the disbursements in the proportion referred to in (c); and
(f)discounted by 70% the costs and 15% of the disbursements allocated to each of the Letos Parties, the C & J Parties, the Jun Wei Parties, and the FY Parties to reflect Mr Williams’ best estimate of the costs the applicants would recover on a taxation of costs; and
(g)applied on the amounts arrived at after step (f) a further 15% lump sum discount.
The steps in paragraph 17 have resulted in Mr Williams assessing the following amounts which the applicants submit represent a fair assessment of the costs the applicants would be entitled to recover from the Respondents:[10]
[10] Affidavit M J Williams 27.02.2023, [21]
Respondent Claimed Lump Sum Costs Letos Parties $70,084.02 C & J Parties $71,335.10 Jun Wei Parties $68,407.85 FY Parties $68,334.66 TOTAL $278,161.10
I am satisfied that these amounts represent a fair estimate of the amounts the applicants would have recovered from the Respondents on a taxation of costs; and I am therefore satisfied that it is appropriate to make lump sum costs orders in these amounts against the Remaining Parties, these being the Letos Parties, the C & J Parties, and the Jun Wei Parties.
DISPOSITION
I will make orders for compensation, additional damages, and interest, for the amounts claimed by the applicants.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 1 September 2023
SCHEDULE OF PARTIES
SYG 3343 of 2019 Respondents
Seventh Respondent:
TAIYI CHANG
Eleventh Respondent:
JUN WEI PTY LTD ACN 616 977 096
Twelfth Respondent:
NINGNING WEI
Thirteenth Respondent:
LI BIN
Fourteenth Respondent:
FY HEALTH PTY LTD ACN 629 197 315
Fifteenth Respondent:
XIPING HE
Sixteenth Respondent:
MINGFANG XUE
Twentieth Respondent:
YUAN HE
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