Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd (No 2) - [2010] FCA 1168

FEDERAL COURT OF AUSTRALIA
Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd (No 2)
[2010] FCA 1168

Citation: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd (No 2) [2010] FCA 1168

Parties: RON ENGLEHART PTY LTD (ACN 005 657 554) v ENTERPRISE CONSTRUCTIONS (AUST) PTY LTD (ACN 067 405 896) and SAFAK ARLEN DERVISH

File number: VID 537 of 2009

Judge: JESSUP J

Date of judgment: 29 October 2010

Catchwords:
PRACTICE AND PROCEDURE – Costs – Amendment to defence and dismissal of cross claim – Whether applicant entitled to costs thrown away by reason of amendment to defence, and its costs of cross-claim – Whether applicant entitled to costs of cross-claim on indemnity basis

PRACTICE AND PROCEDURE – Costs – Copyright infringement action – Applicant failed in proceeding generally yet succeed on subsistence issue – Whether applicant entitled to costs of subsistence claim – Whether such costs should be taxed on indemnity basis

PRACTICE AND PROCEDURE – Costs – Respondents succeeded in proceeding generally and therefore entitled to costs – Whether such costs should be taxed on an indemnity basis – Whether respondents should be denied costs attributable to preparing evidence alleged by applicant to be misleading – Whether respondents should be denied costs attributable to serving notices to produce alleged by applicant to be unreasonable

Legislation: Copyright Act 1968 (Cth ) s 202
Federal Court Rules O 33 r 12, O 15 r 6

Date of hearing: Heard on the papers

Date of last submissions: 2 September 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 30

Counsel for the Applicant: Mr C Golvan and Dr S Ricketson

Solicitor for the Applicant: Middletons

Counsel for the Respondents: Mr P Cawthorn and Mr C Madder

Solicitor for the Respondents: Coolabah Law Chambers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 537 of 2009

BETWEEN:
RON ENGLEHART PTY LTD (ACN 005 657 554)
Applicant

AND:
ENTERPRISE CONSTRUCTIONS (AUST) PTY LTD
(ACN 067 405 896)
First Respondent

SAFAK ARLEN DERVISH
Second Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

29 OCTOBER 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Subject to Orders 2 and 3 below, the first respondent pay the applicant’s costs incurred only in connection with the first respondent’s Cross‑claim filed on 20 August 2009.
2.The applicant’s entitlement to its costs incurred in connection with the allegations in paras 24-27 of the Cross‑claim be limited to those incurred on or before 18 February 2010.
3.The costs incurred by the applicant only in connection with paras 22-23 of the Cross-claim be taxed on an indemnity basis.
4.The respondents pay the applicant’s costs –
(a)incurred after 20 August 2009 in connection with the allegation that copyright subsisted in the plans for the “Monomeeth” house and in that house; and
(b)incurred after 8 April 2010 in connection with the allegation that copyright subsisted in the plans for the “Monomeeth 101” house and in that house.

5.The applicant pay one‑half of the respondents’ costs of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd (No 2) [2010] FCA 1168
Case: [2010] FCA 1168
Decision Date

CaseChat Overview and Summary

This case involved a claim for copyright infringement brought by Ron Englehart Pty Ltd against Enterprise Constructions (Aust) Pty Ltd and Safak Arlen Dervish. The Federal Court of Australia was tasked with determining the costs incurred by both parties during the litigation process. The applicant, Ron Englehart Pty Ltd, sought its costs thrown away by reason of an amendment to the respondents' defence and its costs of the cross-claim. The applicant also sought its costs of the subsistence claim and its costs of the respondents' alleged misleading witness statement and unreasonable notices to produce. The respondents, on the other hand, argued that the applicant should bear the costs of the proceeding as they were the successful party. They further contended that the applicant's costs should be taxed on an indemnity basis due to the lack of prospects of success in the proceeding.

The court found that the applicant was entitled to its costs thrown away by reason of the amendment to the defence and its costs of the cross-claim. However, the court limited the applicant's entitlement to costs incurred on or before 18 February 2010, as the respondents had notified the applicant of their intention to abandon a specific point in their defence on that date. The court also held that the costs of the cross-claim related to the Saville plans and house should be taxed on an indemnity basis, as the cross-claim was misconceived and should not have been instituted. Regarding the subsistence claim, the court found that the respondents ought to have conceded the applicant's allegations, and thus the applicant was entitled to its costs in relation to the subsistence claim. However, the court did not consider the respondents' conduct to be unreasonable and therefore did not order the costs to be taxed on an indemnity basis.

In relation to the misleading witness statement and unreasonable notices to produce, the court found that the respondents were not entitled to a denial of their costs for preparing the misleading witness statement. However, the court held that the respondents should only be entitled to half of their costs of the interlocutory hearing on 8 April 2010, as some of the applicant's objections to the respondents' Notice to Produce were upheld. The court also found that the respondents were not entitled to have their costs taxed on an indemnity basis, as there was no evidence to suggest that the proceeding was commenced or continued for an ulterior purpose. The applicant was granted its costs of resisting the respondents' unsuccessful claim for indemnity costs.

Orders