PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd

PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) was involved in a legal dispute with Peter Vogel Instruments Pty Ltd, which was heard by the Full Court of the Federal Court of Australia. The primary issues at hand were the determination of damages for wrongful repudiation of an agreement, damages for copyright infringement under the Copyright Act 1968 (Cth), and the account of profits for trade mark infringement. The court was tasked with assessing the appropriate amount of reliance damages for the wrongful repudiation, determining whether additional damages should be awarded for copyright infringement, and deciding if profits from sales in other countries could be attributed to the trade mark infringement in Australia.

The court ruled that the reliance damages for the wrongful repudiation should be assessed based on the loss of opportunity to recoup expenditure. Since it was not possible to determine what proportion of the cross-claimant’s expenditure would have been recouped but for the repudiation, the court awarded 30% of the cross-claimant’s expenditure as the loss of opportunity. For the copyright infringement, the court found that there was a reckless disregard for the rights of the cross-claimant as the copyright owner, warranting an additional award of damages under s 115(4) of the Act, which was set at $50,000. Regarding the trade mark infringement, the court held that profits from sales in other countries were not recoverable unless it was shown that those sales were attributable to the infringing use in Australia. Additionally, the court denied any allowance for general business overheads when calculating the profits payable to the applicant, as there was no evidence to show the proportion of overheads attributable to the relevant profit.

The final orders included judgment for the first respondent/cross-claimant against the applicant/first cross-respondent in the amount of $383,956, with the first respondent/cross-claimant to pay $9,808 to the applicant/first cross-respondent. The applicant/first cross-respondent was entitled to set-off the amount against the judgment. The parties were required to confer on the s 51A interest calculations and file written submissions regarding the interest and costs of the proceeding. The case was to be listed for further orders relating to interest, costs, and the final disposition of the proceeding.