FEDERAL COURT OF AUSTRALIA
PAC Mining Pty Ltd v Esco Corporation (No 2) [2009] FCAFC 52
PRACTICE AND PROCEDURE – Costs – Patent infringement proceeding – Respondents resisting allegation of infringement and cross-claiming for revocation on ground of invalidity – Respondents successful on infringement point but unsuccessful on validity point – How costs should be apportioned – Whether respondents entitled to costs generally or only on issues upon which they succeeded.
PAC MINING PTY LTD (ABN 11 007 694 895) and CENTRAL QUEENSLAND MINING SUPPLIES PTY LTD (ABN 11 010 402 990) v ESCO CORPORATION and BRADKEN RESOURCES PTY LTD (ABN 82 098 300 988)
NSD 1076 of 2008
SUNDBERG, JESSUP & MIDDLETON JJ
1 MAY 2009MELBOURNE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1076 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: PAC MINING PTY LTD (ABN 11 007 694 895)
First AppellantCENTRAL QUEENSLAND MINING SUPPLIES PTY LTD (ABN 11 010 402 990)
Second Appellant
AND: ESCO CORPORATION
First RespondentBRADKEN RESOURCES PTY LTD (ABN 82 098 300 988)
Second Respondent
JUDGES:
SUNDBERG, JESSUP & MIDDLETON JJ
DATE OF ORDER:
1 MAY 2009
WHERE MADE:
MELBOURNE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.Order 9 of the orders made by the court on 4 July 2008 be set aside.
2.In place of Orders 8 and 9 made by the court on 4 July 2008 it be ordered that –
· the respondents/cross claimants pay the costs of the applicants/cross respondents of the Application and the Cross-claim to the extent that those costs relate to the issues raised by paragraphs 8.1, 8.2, 9.1 and 9.2 of the Cross-claim and to the corresponding issues raised by paragraph 9 of the Defence;
· otherwise, the applicants/cross respondents pay the costs of the respondents/cross claimants of the Application and the Cross-claim.
3.The appellants pay the respondents’ costs of the appeal to the extent that those costs relate to the issues raised by ground 2 in the Notice of Appeal.
4.Otherwise, the respondents pay the appellants’ costs of the appeal.
5.The cross appellants pay the cross respondents’ costs of the cross appeal.
6.The appellants pay 75% of the respondents’ costs associated with the determination by the Full Court of the parties’ entitlement to costs at first instance and on appeal.
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
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1076 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: PAC MINING PTY LTD (ABN 11 007 694 895)
First AppellantCENTRAL QUEENSLAND MINING SUPPLIES PTY LTD (ABN 11 010 402 990)
Second Appellant
AND: ESCO CORPORATION
First RespondentBRADKEN RESOURCES PTY LTD (ABN 82 098 300 988)
Second Respondent
JUDGES:
SUNDBERG, JESSUP & MIDDLETON JJ
DATE:
1 MAY…
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- Case
- [2009] FCAFC 52
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether certain terms in the contract were enforceable and whether the respondents were entitled to damages for the applicants' alleged breach of contract. The court also needed to determine the appropriate costs orders in relation to the proceedings at both the first instance and the appeal stage. The court considered the arguments presented by both parties and the relevant legal principles governing contract law and costs orders in commercial disputes.
The court found that the terms of the contract were enforceable and that the applicants had breached the contract by failing to deliver the mining equipment and by withholding payment. The court awarded damages to the respondents for the breach of contract. The court also set aside the previous costs orders and made new orders regarding the costs to be paid by the parties. The court held that the respondents were entitled to costs relating to certain issues in the proceedings, while the applicants were to bear the costs for other issues. The court further ordered that the respondents pay the costs of the appeal to the extent that they related to specific grounds of appeal, while the applicants were to bear the costs otherwise. The court also ordered that the cross appellants pay the costs of the cross appeal.
The court's final orders included setting aside previous costs orders and making new orders regarding the costs to be paid by the parties. The respondents were ordered to pay the applicants' costs relating to certain issues, while the applicants were to bear the costs for other issues. The respondents were to pay the costs of the appeal in relation to specific grounds, while the applicants were to bear the costs otherwise. The cross appellants were ordered to pay the costs of the cross appeal. The appellants were also ordered to pay 75% of the respondents’ costs associated with the determination by the Full Court of the parties’ entitlement to costs at first instance and on appeal.
Orders
Orders of the court
1. Order 9 of the orders made by the court on 4 July 2008 be set aside.
2. In place of Orders 8 and 9 made by the court on 4 July 2008 it be ordered that –
· the respondents/cross claimants pay the costs of the applicants/cross respondents of the Application and the Cross-claim to the extent that those costs relate to the issues raised by paragraphs 8.1, 8.2, 9.1 and 9.2 of the Cross-claim and to the corresponding issues raised by paragraph 9 of the Defence;
· otherwise, the applicants/cross respondents pay the costs of the respondents/cross claimants of the Application and the Cross-claim.
3. The appellants pay the respondents’ costs of the appeal to the extent that those costs relate to the issues raised by ground 2 in the Notice of Appeal.
4. Otherwise, the respondents pay the appellants’ costs of the appeal.
5. The cross appellants pay the cross respondents’ costs of the cross appeal.
6. The appellants pay 75% of the respondents’ costs associated with the determination by the Full Court of the parties’ entitlement to costs at first instance and on appeal.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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