PAC Mining Pty Ltd v Esco Corporation (No 2)

Link copied
Case Copied 21 min read

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 2009

MELBOURNE (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 Appellant

CENTRAL QUEENSLAND MINING SUPPLIES PTY LTD (ABN 11 010 402 990)
Second Appellant

AND:

ESCO CORPORATION
First Respondent

BRADKEN 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 Appellant

CENTRAL QUEENSLAND MINING SUPPLIES PTY LTD (ABN 11 010 402 990)
Second Appellant

AND:

ESCO CORPORATION
First Respondent

BRADKEN RESOURCES PTY LTD (ABN 82 098 300 988)
Second Respondent

JUDGES:

SUNDBERG, JESSUP & MIDDLETON JJ

DATE:

1 MAY…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read PAC Mining Pty Ltd v Esco Corporation (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2009] FCAFC 52
Decision Date

CaseChat Overview and Summary

PAC Mining Pty Ltd v Esco Corporation (No 2) involved a dispute between the two companies over a contract for the sale of mining equipment. The case was heard in the Federal Court of Australia. The central issue was the interpretation and enforcement of the terms of the contract, specifically in relation to the delivery of certain mining equipment and the payment of outstanding amounts. The case also involved a cross-claim by the respondents against the applicants, seeking damages for breach of contract and unjust enrichment.

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

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

Full text does not contain this section.