Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2)

Kooee Communications Pty Ltd appealed against a decision of the Federal Court of Australia, which had found the appellant liable for unpaid royalties. The respondent, Primus Telecommunications Pty Ltd, cross-appealed, arguing that the damages awarded were insufficient. The primary issue before the court was the entitlement of the appellant to restitution of moneys paid under the primary judgment and whether an order for apportionment of costs was appropriate. Additionally, the court had to consider whether the appellant was entitled to indemnity costs due to offers of compromise rejected by the respondent. The relationship between the Federal Court Rules 1979 and the Federal Court Rules 2011 in respect of the costs consequences of rejection of offers of compromise was also a matter of interest.

The court held that the appellant was entitled to restitution of the moneys paid under the primary judgment. It found that an order for apportionment of costs was not appropriate in this case. The court also determined that the appellant was entitled to indemnity costs due to the respondent’s rejection of offers of compromise. The court noted that the Federal Court Rules 1979 and the Federal Court Rules 2011 provided a consistent approach to the costs consequences of rejection of offers of compromise, which supported the appellant’s entitlement to indemnity costs.

The court ordered that there be judgment for the appellant against the respondent for $3,527,110.26 plus interest at the rate prescribed in Rule 39.06 of the Federal Court Rules 2011 for the purpose of section 52 of the Federal Court of Australia Act 1979 (Cth) from and including 16 February 2011 to the date of payment. Entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.