FEDERAL COURT OF AUSTRALIA
Vald Pty Ltd v KangaTech Pty Ltd (Costs) [2024] FCA 693
File number(s): QUD 440 of 2019 Judgment of: DOWNES J Date of judgment: 28 June 2024 Catchwords: COSTS – where applicant achieved partial success in patent infringement proceeding – where applicant was successful in defending cross-claim alleging invalidity – where respondent advanced aspects of its invalidity case on premise that applicant’s construction of claims was correct (which construction was not accepted) – where parties agreed that global costs order should be made but each side sought a costs order in its favour – where applicant accepted that a discount was appropriate – where respondent succeeded in relation to the dominant issues – costs order made in favour of applicant but with 70% discount Legislation: Federal Court Rules 2011 (Cth) rr 25.14, 40.02 Cases cited: Division: General Division Registry: Queensland National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Number of paragraphs: 23 Date of hearing: 24 June 2024 Counsel for the Applicant/ Cross-Respondent: Mr D Logan KC and Mr D Larish Solicitor for the Applicant/ Cross-Respondent: Holding Redlich Counsel for the Respondent/ Cross-Claimant: Mr B Fitzpatrick Solicitor for the Respondent/ Cross-Claimant: Wrays ORDERS
QUD 440 of 2019 BETWEEN: VALD PTY LTD (ACN 609 070 340)
Applicant
AND: KANGATECH PTY LTD (ACN 603 446 171)
Respondent
AND BETWEEN: KANGATECH PTY LTD (ACN 609 070 340)
Cross-Claimant
AND: VALD PTY LTD (ACN 603 446 171)
Cross-Respondent
ORDER MADE BY:
DOWNES J
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.Other than existing costs orders made in the proceedings to date, the Respondent/Cross-Claimant pay 30% of the Applicant/Cross-Respondent’s costs of the Amended Originating Application and Notice of Cross-Claim up to and including 24 June 2024.
2.Any existing costs orders made in the proceedings to date be payable forthwith.
3.Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), the costs which are payable pursuant to orders 1 and 2 be paid in a lump sum.
4.The issue of the quantum of the lump sums for costs, as identified in these orders, including any procedural directions relating to that issue, be determined by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWNES J:
On 5 April 2024, I published my reasons for judgment in this proceeding: Vald Pty Ltd v KangaTech Pty Ltd (No 5) [2024] FCA 333 (J or judgment).
Pursuant to an Order made on 23 April 2024 (Order), the parties were given an opportunity to make submissions on costs, and each did so, including at a hearing held on 24 June 2024. These reasons deal with the costs issue associated with the liability aspect of the proceeding and…
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- Case
- [2024] FCA 693
- Decision Date
CaseChat Overview and Summary
The legal issues centred on the principles of costs in patent cases, particularly whether a global costs order was appropriate given the defensive nature of the cross-claim and the common issues involved. The court also had to consider the appropriate discount for Vald's partial success and the relative success of each party on the dominant issues of the case. The court noted that Vald had obtained significant relief, including declaratory and injunctive relief, and certification of the patent's validity, but had not succeeded on all claims. KangaTech, while unsuccessful on its cross-claim, had succeeded in relation to some aspects of the invalidity case.
The court ruled that a global costs order was appropriate given the interconnected nature of the claims and cross-claim. While Vald obtained significant relief, the court found that KangaTech had succeeded in relation to the dominant issues, particularly in establishing the proper construction of the patent claims. Considering the parties' agreement on the need for a discount and Vald's acceptance of a 70% discount, the court ordered that KangaTech pay 30% of Vald's costs. The court also directed that the quantum of costs be determined by a Registrar and paid in a lump sum.
The final orders were that KangaTech pay 30% of Vald's costs, with existing costs orders to be paid forthwith, and the lump sum to be determined by a Registrar. This decision balanced the partial success of Vald with the significant issues on which KangaTech prevailed, resulting in a costs order that reflected the overall outcome of the case.
Orders
Orders of the court
1. Other than existing costs orders made in the proceedings to date, the Respondent/Cross-Claimant pay 30% of the Applicant/Cross-Respondent’s costs of the Amended Originating Application and Notice of Cross-Claim up to and including 24 June 2024.
2. Any existing costs orders made in the proceedings to date be payable forthwith.
3. Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), the costs which are payable pursuant to orders 1 and 2 be paid in a lump sum.
4. The issue of the quantum of the lump sums for costs, as identified in these orders, including any procedural directions relating to that issue, be determined by a Registrar of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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