Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 6)

Tamawood Limited brought an action against Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) and others, seeking declarations of copyright infringement. The primary dispute centred on whether the respondents had infringed Tamawood's copyright and, if so, whether the infringement was innocent under section 115(3) of the Copyright Act 1968 (Cth). The case was heard in the Federal Court of Australia.

The central legal issues revolved around the allocation of costs between the parties. Tamawood argued it was entitled to its costs from the respondents due to the successful declaration of copyright infringement, even if the infringement was innocent. Conversely, the respondents contended that they were the successful parties because they had successfully raised the defence of innocent infringement. Furthermore, the court had to consider whether Tamawood acted unreasonably by rejecting two settlement offers from the respondents before the trial.

In deciding the matter, the court noted the broad discretion it has to allocate costs under section 43 of the Federal Court of Australia Act 1976 (Cth), but also emphasised the principle that costs generally follow the event. The court found that the respondents had innocently infringed Tamawood's copyright in relation to one design and had reasonably defended the case. It was also noted that the respondents had offered to settle the proceedings and bear their own costs, which Tamawood had rejected. Given these circumstances, the court ruled that Tamawood should bear the costs of the respondents, both before and after the settlement offer, on an indemnity basis after the offer date.

The court ordered that Tamawood Limited pay the costs of Bloomer Constructions (Qld) Pty Ltd and Wayne Norman Bloomer. The costs incurred prior to 2 September 2011 were to be paid on a party and party basis, and those incurred on or after that date were to be paid on an indemnity basis. The specific amounts of these costs were to be taxed if not agreed upon otherwise.